Jul 21, 2016

The American Bar Association's Ill-Advised Speech Code Proposal

In early August, the American Bar Association's House of Delegates will vote on a proposed amendment to Rule 8.4 of the Model Rules of Professional Responsibility. The proposed new rule would subject lawyers to professional discipline for "harassment" or "discrimination," even if the conduct was unintentional or committed unknowingly, and even if the harassment or discrimination is not prejudicial to he administration of justice. The current rule subjects a lawyer to discipline "in the course of representing a client" if the conduct is "prejudicial to administration of justice." The proposed rule significantly expands these limiting conditions. 

The rule proposes that any conduct "related to the practice of law," including running a law firm, representing a client, or even engaging in social conduct as a lawyer, could be disciplined. The rule also expands the classes against which unknowing "discrimination" is prohibited to include "socioeconomic status," "gender identity," and "sexual orientation." Given the current cultural winds, this rule is a dangerous minefield for lawyers, particularly those who don't see "gender identity" or "sexual orientation" as cultural "causes" to be celebrated. It is an ill-advised attempt at thought policing. 

Tellingly, the ABA Standing Committee on Professional Responsibility removed the requirement that the discriminatory conduct, in order to subject a lawyer to discipline, must be "prejudicial to the administration of justice." What results is a straight up speech code, wherein lawyers can be subject to discipline for failing to tow the current cultural orthodoxy regarding sexual orientation and gender identity, regardless of whether the "discrimination" creates injustice or harm.

The rule is so poorly drafted that the ABA's own Standing Committee on Professional Discipline opposes it, citing a lack of demonstrated need for the rule, clear first amendment concerns, and the proposed rule's contradiction of other rules that give lawyers broad leeway in accepting or rejecting clients.  

Brad Abramson, a Senior Counsel with the Alliance Defending Freedom, has been following this issue for several years. About three years ago, a handful of states moved to enact similar changes, and Brad has been on top of the issue ever since. Now that the ABA is following suit, there is a danger that many more states will jump on the bandwagon, since the Model Rules really do serve as a model for many states' ethics regimes. 

On the latest Cross & Gavel Audio podcast, I talk with Brad about the proposed rule and its specific dangers to practicing lawyers. We discuss the proposal's break with the tradition of lawyer autonomy, its Constitutional difficulties, and the specific changes the new rule would make. We also speculate as to why the ABA Standing Committee on Ethics and Professional Responsibility would ignore 477 lawyers' comments opposing the rule (there were only 17 in favor of the change) when revising it. 

Have a listen, here, or use the player embedded below. Or subscribe on your phone's podcast app.

Most important, if you are an attorney reading this, please contact your delegate to the ABA House of Delegates, who will be voting on the proposal on August 8 or 9. A list of delegates with email addresses can be found here. Urge a "NO" vote on the proposed amendment, Resolution 109, at the ABA House of Delegates meeting.

For more information, see the detailed comments submitted by the Christian Legal Society and ADF.

* * * * 
If you need talking points, here they are:

The proposed rule:
  1. Moves the non-discrimination language from the comments to the black-letter text of the rule;
  2. Removes the mens rea requirement that any discrimination is done “knowingly”;
  3. Adds “ethnicity,” “gender identity,” and “marital status” as classes to be protected; and
  4. Broadens the application of the rule to all “conduct related to the practice of law,” regardless of whether it is prejudicial to the administration of justice.

The Standing Committee submitted the proposal for comments. Hundreds of lawyers commented, and the comments were overwhelmingly opposed to the proposed change. (To see the comments to the proposed rule, including the letter from the Christian Legal Society, go here). The Committee ignored the overwhelmingly negative comments and submitted it to the ABA House of Delegates for a vote.

1. The proposed rule is opposed by the ABA Standing Committee on Discipline.

  • “The Proposal Continues to Suffer from Vagueness That Raises Enforceability and Possible Constitutional Concerns.”
  • "The Discipline Committee Supports Retention of the Mens Rea Requirement for Harassment and Discrimination.”
  • “Categories of Individuals Not Yet Afforded Constitutional Protection [may] Raise Constitutional Concerns.”
  • The “Proposed Model Rule 8.4(g) and Comment Do Not Adequately Address Other Issues, Including Lawyers’ Decisions to Decline a Representation.”

2. The proposed rule would limit the autonomy of lawyers in accepting and declining representation and conflicts with current ethics rules.

For more on this issue, see section E of the Committee on Discipline Letter and pp. 3-4 of March 10, 2016 Christian Legal Society Letter to ABA Ethics Committee

3. In the context of professional relationships, the terms “harass” and “discriminate” are vague and overly broad, as is the proposed standard “in conduct relating to the practice of law.” This raises Constitutional concerns and enforceability issues.

See the discussion at pp. 5-14 of the CLS Letter and sections A, B, and D of the Committee on Discipline Letter.

4. The proposed rule likely impinges on First Amendment rights of attorneys. It would have a chilling effect on speech, and it may subject a lawyer to discipline for serving on boards of religious institutions or for public speech on political, social, cultural, and religious topics.

See the discussion at pp. 5-14 of the CLS Letter.

5. The rule is not carefully drafted to avoid unintended consequences regarding employment issues, peremptory jury challenges, and socio-economic “discrimination.”

For example, law professor Eugene Volokh points out:

I can’t imagine, of course, that the drafters were indeed intending to ban law firms from preferring employees with higher-status educations or past employment history, or from preferring wealthier partners, or from giving a break to poorer would-be employees or clients. But that’s what the prohibition seems to cover. And if it isn’t meant to cover that, I’m not sure what exactly it is meant to cover, at least as applied to “the operation and management of a law firm” -- and in any event, its intended scope should be more clearly stated.

6. The proposal, according to the Resolution of the ABA Ethics Committee itself, is not prompted by any actual discrimination or concerned with correcting existing inequities in the administration of justice. It therefore is not a matter appropriate to the Rules of Professional Responsibility.

The Resolution admits that the rule change is proposed in order to “reflect the monumental achievements that have been accomplished to protect clients and the public against harassment and intimidation” and cites no instances of injustice that the current rule has left unaddressed.

If you want more, listen to my podcast with Brad Abramson:

Jun 22, 2016

You're Not Married, Probably

If Adam and Eve are Paradigm Spouses, Who is Married?
Many neo-con Roman Catholics are attacking their Pope's recent comments that most Roman Catholic marriages are nullities. According to one editorial, "in effect, Pope Francis told millions of Catholics that they are not just unmarried, but were incapable of being married, because the modern world has corrupted them and because the Church failed to 'catechize' them." Here's a summary of his remarks from Catholic News:
Pope Francis said Thursday that many sacramental marriages today are not valid, because couples do not enter into them with a proper understanding of permanence and commitment.
While he initially said in unscripted comments that “the great majority of our sacramental marriages are null,” he later approved a revision of these remarks. When the Vatican released its official transcript of the encounter the following day, they had changed the comment to say that “a portion of our sacramental marriages are null.”
Most of the attacks on Francis' position are really grounded in the policies supporting canon law's presumptions in favor of a valid marriage in disciplinary proceedings. They think questioning the validity of most marriages will undermine those in troubled marriages because if such people are told that their marriages are probably invalid anyway, they are more likely to proceed to annulment and divorce.

And, the presumption in favor of marital validity seems right as a canonical policy. If two people come to a church with a record of marriage, you ought to presume they are married. The alternative would be to treat them as unmarried until they offered proof and a de novo judgment had been made about whether they were married. It would weaken the protection of the rights and obligations of marriage to be constantly questioning and requiring new proof of marital validity. If a man and a woman present themselves with an authenticated record of marriage, we ought to presume that they are married for disciplinary purposes, like deciding whether one of them can marry someone else.

But I don't think Francis' remarks are best taken as sounding in canon law or attacking its presumption. It reads like an absolute judgment concerning modern culture before the background of absolute theological truth. (Francis' skepticism about canon law is well known.) Against Francis' neocon opponents, I think Francis' attack on modern marriages is important and timely, especially given the widespread acceptance of same-sex marriage, no-fault divorce, the propriety of the unmarried having sex and bearing children, and marriages formed with no sense of a general duty to seek and educate children. Real belief in any of these logically conflicts with the intent necessary to form a marriage. This is enough to raise serious questions.

Jun 12, 2016

Trump and the Law Professors: "Textbook" v. "Law Review" Racists?

Bias and Mistrust
According to CNN, "House Speaker Paul Ryan ripped Donald Trump's recent remarks saying a judge presiding over a lawsuit involving his business was biased because of his Mexican heritage as 'the textbook definition of a racist comment.'" In addition to Ryan, whose judgment may itself be biased because he reportedly is motivated by a desire for Trump to lose and clear the way for his own presidential ambitions, Trump has received some criticism from Christians. They claim that, as a matter of faith, we may not include a judge's race in arguments about a particular judge's partiality, even if as Trump alleges, he has a history of unfair rulings against a person of another race in a particular case.

To share some of the context for these claims familiar to me, U.S. law professors have been claiming that white judges are generally biased because of their racial background for many years. (And, one shouldn't even get started on white juries, whose racial bias is treated as self-evident.) If Trump is a "textbook racist," as Ryan claims, should those making these claims be called "law review racists?"

Here's a few samples of the first couple of law-review articles I pulled up searching for "white judges":

Jun 11, 2016

Solid Common Ground

Ernst Jünger's Eumsewil contains an account of an allegorical discussion, which is interesting for our time, especially given our own political iconography:
Rosner [a travelling visitor] started talking about his experience with elephants. "The elephant tests the ground before taking each step. When it finds itself sinking into quicksand or a bog, it never hesitates to swing up its trunk, lift its rider from his seat and thrust him under it foot like a piece of wood to support its own escape."
The Domo [the diplomatic chief of staff], who has a mind for such anecdotes, replied "The fault lies with the driver who demands the impossible. This could never happen to an experienced mahout."
He was probably correct [the narrator comments]; if you ride an elephant, you have to know what you are doing and where you are going.
Those who disagree deeply about many things with respect to the politics of the Republican Party, or the U.S. as a whole, can find much to agree about with respect to the truth of this passage. Party and national political disagreements are largely about (1) the identity of the Mahout, who has led us into quicksand, (2) what kind of quicksand or bog is threatening to drown us, and (3) who is the Elephant which will pull the bad Mahout off its back and thrust him beneath its foot for necessary support.

In other words, we disagree about who we are, who has misled us, and what is nature of the difficulty into which we have been led. But we all sympathize with the Elephant in the story rather than the Mahout; we sympathize with one who has been led by someone who doesn't know what he's doing or where he is going. That's a good common base of feeling on which to grow towards unity.