The ABA sets forth a de facto speech code for lawyers

The American Bar Association has long been a leftist outfit. So it’s not surprising to see its leftism manifested in a new provision in the ABA Model Rules of Professional Conduct — rules that, as Eugene Volokh says, have been adopted by many states as binding on lawyers practicing there.

Here is the new provision:

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.

This is a sweeping rule. Volokh notes that a lawyer could be disciplined under it in the following scenario:

[S]ome lawyers put on a Continuing Legal Education event that included a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side said something that was critical of gays, Muslims or transgender people.

Similarly, a lawyer could be punished in this case:

[S]ay 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.

In both situations, you have engaged in “verbal . . . conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” And you did so at an “activit[y] in connection with the practice of law.” Thus, the state bar, if it adopts this rule, might discipline you for harassment, even though the “harassment” consists of stating your opinion.

Volokh points out that this goes beyond existing hostile-work-environment harassment law under Title VII and similar state statutes. Generally, these laws don’t don’t include sexual orientation, gender identity, marital status or socioeconomic status. They also generally don’t cover social activities at which co-workers aren’t present. But under the ABA’s model rule, even a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.

And, of course, the speech restrictions are overtly viewpoint-based. As Volokh says, “if you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.”

Volokh and others pointed all of this out to the ABA, but it adopted the rule anyway. Thus, Volokh is quite justified in concluding that “the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of.”

There’s another problem with the ABA’s rule — one that’s less threatening to basic rights but mischievous nonetheless. Lawyers sometimes behave badly at depositions. Why? Because no judge or jury is present; because they want to throw the adversary off stride or simply impress a client; and because depositions are often long and contentious events.

Under the ABA’s rule, a female or minority attorney can allege that a white male opposing counsel’s misbehavior at a deposition is harassment and/or discrimination based on race or gender. In effect, the ABA rule can become a litigation weapon for lawyers from certain demographic groups and the clients they represent.

Many states already have “civility” rules for lawyers that can be invoked against attorneys who go over the top during a deposition. To my knowledge, though, this rarely happens. In any event, such rules do not give one class of lawyers rights and/or opportunities that another class lacks.

By contrast, the ABA’s anti-harassment rule effectively creates protected classes of lawyers. And many lawyers within these classes will know how to leverage that protection.

State courts and state bars should resist pressure to adopt the ABA’s mischievous and constitutionally offensive rule.

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