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.

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.

See, March 10, 2016 Letter from 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: