Aug 9, 2016

The Battle Over Ethics Rule 8.4 is Not About Sexism

For the past 18 years-- since 1998-- the American Bar Association's model ethics rules have had a provision that would subject a lawyer to discipline for manifesting bias or prejudice based on race, sex, or sexual orientation:

A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) [i.e., commits professional misconduct] when such actions are prejudicial to the administration of justice. (ABA Model Rules of Professional Conduct, Rule 8.4, comment 3).

Yesterday, the ABA House of Delegates adopted an Ethics resolution that will expand that rule to include "gender identity" and "marital status" and will move the prohibition from the text into the main portion of the rule (the so-called "black letter" section). Moving the text from the comment to the main text will have absolutely no effect-- the comment already makes it abundantly clear that racial and gender bias or prejudice violates the rule.

This is uncontroversial, though one sure wouldn't know it from the New York Times and some other news sources that are attempting to report on the issue. The NYT headline last week read:

Bar Association Considers Striking ‘Honeys’ From the Courtroom

The Times of London had this:

Female lawyers find bar guilty of sexism

And "Newser," getting it wrong on a number of levels, went with this:

It’s Currently Fine for Lawyers to Sexually, Racially Harass Each Other

There was in fact a pitched battle over the rule, with hundreds of lawyers and even many ABA committees voicing serious opposition to the proposed change until late last week (see my post below on this) when the Committee on Ethics made substantial last-minute changes to the proposal. And the battle will now move to states who may attempt to adopt some form of the ABA rule. But the battle never had anything to do with sexual harassment, racism, or sexism in the courtroom. 

The objections to the new Model Rule 8.4 are based on its expansion of the contexts in which a lawyer might be disciplined for "harassment" and upon its potential for abuse in requiring lawyers to accept or decline representation of clients:

1. First, the rule no longer tethers discrimination to words and actions undertaken "in the course of representing a client" that are "prejudicial to the administration of justice." Instead, the new rule would subject a lawyer to discipline for conduct "related to the practice of law," including "social activities" and "bar association" work, among other contexts. Why? Because expanding the rule-- to cover non-courtroom behavior and words and conduct that have no negative impact on the administration of justice -- allows a bar association to create a speech code with which to enforce the new orthodoxy regarding sexual orientation and gender identity. 

Of course this would have a chilling effect on lawyers' speech (think about lawyers who speak on CLE panels or who write op-ed pieces or blogs that might unintentionally offend) and infringe on their free exercise of religion. Does anyone doubt, for example, that a lawyer might hesitate to serve on a board of a religious organization that has voiced opposition to homosexual marriage or gay rights if this rule is adopted?

2. Second, the proposed rule could be used to force lawyers to accept or decline a client. This would fundamentally change the lawyer-client relationship. For the good of both lawyers and clients, lawyers have historically had broad autonomy in choosing whether to accept or decline a representation.

The ABA's well-distributed talking points (from the drafter, Myles Lynk) claim:

Again, with respect, proposed paragraph (g) to Rule 8.4 very deliberately does NOT limit the autonomy or lawyers to accept or decline a representation!  This is made clear in the rule itself. It provides that all such issues will continue to be addressed, as they are now, with reference to Rule 1.16.  I do not think we could have been any clearer on this point.  

The drafter should know better. By limiting the "safe harbor" only to situations covered by Rule 1.16, the rule does exactly what Lynk says it does not do: it limits lawyer autonomy in every instance except those very few covered by Rule 1.16. Query: Why doesn't the rule simply read: "This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation"? Why add: "in accordance with Rule 1.16"? To limit the autonomy of lawyers.

In short, the proposed rule fundamentally limits lawyer autonomy, chills lawyer speech, and infringes on lawyers' free exercise rights. While many of the problems with the proposed rule that I raise in my post below were fixed at the 11th hour by the Committee in its August 3 revisions (the last-minute nature of the revision was a deft political ploy by the Committee), none of the First Amendment or lawyer autonomy issues were addressed. 

Those who oppose the rule, like the Christian Legal Society, do not oppose the rule for limits it might place on lawyer conduct in the courtroom, contrary to simplistic media accounts. Of course lawyers who seek to corrupt the judicial process through bias or prejudice should be subject to discipline! But CLS (and others concerned about free speech and free exercise) oppose new Model Rule 8.4 because they fear that it will pave the way for disgruntled job applicants, aggressive litigation opponents, and gender-identity activists, among others, to harass and punish lawyers who speak or act in support of traditional marriage or biological sexuality. 

The pressure that CLS and others exerted paid off in part, as the ABA was shamed into fixing some of the glaring problems with the drafting. Yet the larger free speech and association problems caused by this ABA overreach were not addressed by the revisions.

State bar association ethics committees will now have to clean up the ABA's mess.

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