In passing Senate Joint Resolution 15, the Montana legislature has expressed its view that it would be unconstitutional for the state to adopt the ABA’s controversial Model Rule 8.4(g), which purports to ban “discrimination” and “harassment” in the legal profession in such a way as to cut into rights of lawyers’ speech and association, some of them distinctive to their role as client advocates [text, status Gavel to Gavel] Eugene Volokh has more here. We’ve previously linked Volokh’s debates with prominent lawyers on the subject, and here’s another, under Federalist Society auspices, this time against Robert Weiner of Arnold & Porter. Earlier here, here, etc.
At last month’s Federalist Society National Lawyers Convention, Eugene Volokh debated Deborah Rhode on whether hostile environment law on and off campus often violates the First Amendment. The discussion also got onto Model Rule 8.4 (g), adopted by the American Bar Association a few months ago, which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “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.” Can bar disciplinary committees be trusted not to apply this language to politically incorrect expression by lawyers, including in pedagogical settings such as law school and continuing legal education (CLE)? [Josh Blackman, Francis Pileggi]
Josh Blackman spots an article in the ABA Journal proposing a new ABA Model Rule 8.5 that would declare it “a lawyer’s professional responsibility to promote equality in society generally, diversity in the legal profession specifically, and encourage lawyers to devote 20 hours annually to activities directed toward promoting diversity in the profession.” Blackman writes:
The [proposed] Rule adopts a specific philosophical viewpoint–promoting diversity and inclusion–and makes it the orthodoxy for attorneys. Under this proposed rule, those who do not adopt that philosophy will be violating a “duty” and “ethical obligation.” Those who choose not to attend certain CLE classes would now be disregarding an aspirational goal….
Not every attorney agrees that “every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession.” Far too many attorneys–especially academics–take this statement as an unassailable fact of life. It’s not.
Bar associations exist to promote and regulate the legal profession. They do not exist to promote specific ideologies.
Compare ABA Model Rule 8.4(g), which Blackman and many others have argued is a step toward an unconstitutional speech code for attorneys, and the mandatory statements of support for diversity, equity and inclusion in the University of California system and elsewhere in higher education.
As I noted last year, the American Bar Association in 2016 adopted as a recommendation its Model Rule 8.4 (g),
which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “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.” …
UCLA law professor Eugene Volokh has argued that the ABA rule’s scope “is broad and vague enough to potentially apply to a wide range of political speech, and thus violate the First Amendment.”
The rule would invite charges of professional misconduct against lawyers who express or circulate opinions, jokes, or graphics that they should have known would make a listener uncomfortable based on one or another protected class membership. It would apply in an extremely wide range of contexts “related to the practice of law”, as listed in these April comments:
Activities that seem to fall within the extremely broad scope of proposed Rule of Professional Conduct 8.4(g) include:
* presenting CLE courses;
* participating in panel discussions that touch on controversial political, religious, and social viewpoints;
* teaching law school classes as faculty, adjunct faculty, or guest lecturers;
* writing law review articles, op-eds, blogposts, or tweets;
* giving media interviews;
* serving on the board of one’s religious congregation, K-12 school, or college;
* providing pro bono legal advice to nonprofits;
* serving at legal aid clinics;
* lobbying on various legal issues;
* testifying before a legislative body;
* writing comment letters to government agencies;
* sitting on the board of a fraternity or sorority;
* volunteering for political parties; and
* advocating through social justice organizations.
While some state codes of lawyer conduct already ban bias and harassment, these have generally been drafted much more narrowly. In Maine, for example, up to now the missteps have to have been committed “knowingly,” in the course of representing a client, and in a manner “prejudicial to the administration of justice” — all three important safeguards against overbreadth.
Model Rule 8.4 (g) has faced rough sledding around the states since it was proposed. According to these comments in October, “seven states have rejected the rule: Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee have rejected the proposal. The Attorneys General of four states have concluded that adopting the rule would violate the First Amendment: Louisiana, South Carolina, Tennessee, and Texas. Only Vermont has adopted the model rule in its entirety.”
As Vermont goes, so goes Maine: the Pine Tree State’s highest court has now adopted a version of the rule, although narrowed in several respects. In particular, the Maine version defines “the practice of law” in a less broad (though still quite broad) way that covers fewer purely social activities; it removes socioeconomic status and marital status from the list of protected classes; and it tries at least to define what sorts of speech it will deem to be bias or harassment. Its definition is still quite unclear in its contours, however, and far broader than the standard approved by the U.S. Supreme Court as to harassment law and speech liability in workplace and university settings.
Let’s hope other states don’t follow Maine’s example: even as narrowed, the rules curtail important rights.
In the mean time, however, there is heartening news from Ontario, Canada, where (as I reported last year) the Law Society had gone all in on rules that go much further than the ABA’s, requiring all lawyers on eventual pain of discipline to draft a personal Statement of Principles (SOP) avowing a dedication to principles of diversity, equality, and inclusion. The Society rejected a proposal “to create an exemption to the new mandatory Statement of Principles for persons who believe the requirement violates their freedom of conscience.”
But its membership revolted. Attorney Lisa Bildy and other SOP objectors led a campaign that, in a seeming miracle, elected 22 of its supporters to the 40 lawyer seats among the benchers (governors) at the Law Society. While the newly elected are not a majority because of the other seats on the body reserved for lay benchers and paralegals, the message was unmistakable (more on the campaign from Bruce Pardy, Murray Klippenstein, Teng Rong, and Dylan McGuinty). Now, in the face of a determined campaign of abuse directed at the incoming benchers (sidelight), the Law Society of Ontario’s governing Convocation will meet June 27 to begin considering whether to repeal, render optional, otherwise change, or retain the Statement of Principles requirements.
The June 27 Law Society meeting, and what follows, deserve a close watch by all of us concerned about the rise of speech codes and forced expression in the professions.
- Repercussions of Supreme Court’s Janus ruling on bar associations’ compulsory extraction of dues from nonmembers [Maxine Bernstein, Oregonian] “State Supreme Court calls a ‘timeout’ for Washington Bar Association to review its rules” [Steve Miletich, Seattle Times] “ABA Model Rule 8.4(g) Cannot Survive the Supreme Court’s Recent Decisions in NIFLA and Matal” [Kim Colby, Federalist Society, earlier on rule banning some types of speech and expression by lawyers on anti-discrimination grounds]
- Pardoned former sheriff Joe Arpaio sues New York Times for libel [Quint Forgey, Politico; Joe Setyon, Reason; over the years]
- When may governments boycott private companies’ output because those companies promote disapproved ideas? [Eugene Volokh, more]
- First Amendment has consistently foiled Donald Trump’s designs against critics’ speech [Jacob Sullum; related, David Henderson] “The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.” [Matt Welch] “Threats of violence discourage people from participating in civic life. This is an unusually good opportunity to deter them.” [Conor Friedersdorf during Ford-Kavanaugh episode]
- “Fighting Words and Free Speech” [John Samples] “A New Podcast on Free Speech: Many Victories, Many Struggles” [same on Jacob Mchangama podcast series]
- “U.K. Supreme Court: Baker Doesn’t Have to Place Pro-Gay Marriage Message on Cake” [Dale Carpenter, Peter Tatchell, Lee v. Ashers]
- Getting together to do a national We’re-Not-The-Enemy-Of-The-People Day might not play to the strengths of an independent press [Jack Shafer; New York Post on why it did join, and L.A. Times on why it didn’t] Kevin Williamson wishes that many in the institutional press were more than just fair-weather friends of free speech values [NRO]
- ““Racial Ridicule” Is a Crime in Connecticut — and People Are Being Prosecuted” [Eugene Volokh]
- “Can Fake News Be Regulated?” Federalist Society policy brief video with Thomas Arnold;
- Once you get past the headline, Adam Liptak’s NYT account of First Amendment differences at the Supreme Court is well done [Roger Pilon]
- Is Internet freedom failing? [Knight Institute symposium with Jack Goldsmith et al.] How does moderation actually work at leading social media firms? [Kate Klonick, Harvard Law Review]
- The ABA’s Model Rule 8.4(g), in the name of combating harassment and discrimination, encourages states to regulate many expressions of speech and association by lawyers that have incidental professional implications. The Supreme Court in its recent NIFLA v. Becerra decision cast a shadow on that [Josh Blackman, Scott Greenfield]
Lakehead University law faculty member Ryan Alford has filed a challenge to the new Ontario bar rule requiring all lawyers to prepare and submit personal “Statement of Principles” avowing their support for equality, diversity, and inclusion. The rules have drawn fire across Canada as compelled speech, but the bar association turned down a request that individual lawyers be allowed exemptions if they believe the requirement violates their conscience. I’ve got a write-up at Cato at Liberty noting the parallels with Model Rule 8.4 (g), adopted by the ABA in 2016, which makes a vaguely defined category of discriminatory conduct, including speech, the subject of discipline as “professional misconduct,” and which Texas Attorney General Ken Paxton warns would be unconstitutional if adopted into state regulation. I write:
The “Test Acts” were a series of enactments of England that excluded from public office and penalized in other ways those who would not swear allegiance to the prevailing religious tenets of the day. There is no good reason to bring back their principles.
- Germany will drop law against insulting foreign leaders, invoked by Turkey’s Erdogan [DW, earlier]
- Judge Neil Gorsuch’s opinions and writing draw praise from First Amendment specialists [Ronald Collins, First Amendment Coalition]
- “Hey, Google, deindex this whole article because one of the comments harms our reputation.” A tactic ripe for abuse, no? [Eugene Volokh]
- ABA model rule defining harassment as professional misconduct violates free speech, says Texas AG [John Mudd, Josh Blackman, earlier on Rule 8.4(g)here, here, etc.]
- “CFPB Proposal Unconstitutionally Imposes Prior Restraint on Regulated Entities’ Speech” [Burt Rublin and Daniel Delnero, WLF]
- “On punching Nazis” [Ken at Popehat; “Der Fuehrer’s Face,” Spike Jones, 1943]