Well, it has happened. Law professor Eugene Volokh blogs about the latest move from the American Bar Association. In this excerpt, Volokh quotes from a new provision in the ABA’s Model Rules of Professional Conduct, described by Volokh as “an influential document that many states have adopted as binding on lawyers in their state.” In the passage below, the boldfaced parts were highlighted by Volokh:
It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.
Discrimination and harassment . . . includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).
Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing [diverse] employees or sponsoring diverse law student organizations.
Volokh points out that under this rule, a legal education seminar in which a lawyer, in discussing a case or a legal dilemma, said something that could be construed as critical of, say, Muslims, or gays, or transgenders, he could be disciplined by his state bar. More Volokh:
Or say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint.
Again, you’ve engaged in “verbal . . . conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The state bar, if it adopts this rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.
Bottom line, according to Volokh: “the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of.”
So, let’s say that a lawyer in a state that adopts this new ABA guideline joins the Catholic Law Society. Given the Catholic Church’s official position on homosexuality, would she face professional sanction simply for joining such a group? The potential for oppression and persecution is enormous.
This is the kind of thing I keep talking about: that orthodox Christians are going to be de facto excluded from entire professions through licensing and related requirements. We have to fight it whenever and wherever we can. Eugene Volokh is not a Christian, but he’s a staunch free speech and expression advocate, so he can be counted on to take a strong stand. What about liberal lawyers? The fact that something this outrageous passed the ABA is not a good sign.
But it is a sign of the times. It’s the Law of Merited Impossibility in action. Keep that in mind in reading the comments section of this blog entry, when the usual suspects arise to say that this really is no big deal. It’s a very, very big deal. And it won’t stop here. Maybe — maybe — the ABA won’t get away with this. But consider the kind of culture within the American legal profession that would even pass such an outrageously bigoted rule change in the first place.