In a divided vote last month, “The Law Society of Ontario ditched a controversial rule requiring all lawyers to adopt and abide by a statement advocating equality and diversity.” A compromise measure adopted instead “requires lawyers and paralegals to acknowledge, each year on their report to the society, an awareness of their existing professional obligation to abide by human rights legislation.” [Adrian Humphreys, National Post; text of new requirement at LSO; Cosmin Dzsurdzsa, The Post Millennial; CBC Radio; earlier]
Many colleges have adopted a principle known as “affirmative consent,” which makes it easier to infer misconduct (and thus impose expulsion or other discipline) when a record is lacking in verbal or physical evidence one way or the other as to whether a student’s sexual encounter with another student was consensual. It might seem unthinkable to apply such a standard in criminal law, where the consequences are not expulsion but imprisonment and the burdens of sex offender registration.
And yet that’s the gist of a resolution urged on the American Bar Association by its Commission on Domestic and Sexual Violence. Read my account at Cato, and then for additional insight check out the letter from Bay Area employment lawyer Mark Schickman, who chairs that sponsoring commission, especially the portions characterizing “The Principle Behind the Opposition.” Emily Yoffe’s investigation into the oddly influential “freeze” theory is here.
It was a close-fought thing, but Monday afternoon the assembled ABA House of Delegates voted to table the resolution 256-165, killing it for this conference at least.
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.
The Supreme Court’s Janus decision on public sector union fees was not received in a spirit of total cooperation by all public sector unions and employers. Two Cato Daily Podcasts from late last year, one with Robert Alt of the Buckeye Institute, the other with Ken Girardin of The Empire Center:
And now, citing the First Amendment and the Janus precedent, “three conservative lawyers are seeking to overturn Texas laws that require attorneys to join the State Bar of Texas and pay annual dues;” in Texas, as in many states, bar dues go to various ideologically fraught issues and causes [Chuck Lindell, Austin American-Statesman]
Just for fun: Cato’s amicus brief in Janus v. AFSCME is an answer on Jeopardy!
- “An important win for property owners”: Supreme Court rules 8-0 that protected species habitat doesn’t include tracts containing no actual dusty gopher frogs and not inhabitable by them absent modification [Roger Pilon, George Will, earlier on Weyerhaeuser v. U.S. Fish & Wildlife Service, Cato Daily Podcast with Holly Fretwell and Caleb Brown (“The Frog Never Had a Chance”)]
- Proposed revision of federal Violence Against Women Act (VAWA) would expand definition of domestic violence to include nonviolent “verbal, emotional, economic, or technological” abuse. Vagueness only the start of the problems here [Wendy McElroy, The Hill]
- Bad ideas endorsed by the American Bar Association, part 3,972: laws requiring landlords to take Section 8 tenants [ABA Journal; earlier on “source of income discrimination” laws]
- Minneapolis “Healthy Foods Ordinance” drives up costs for convenience stores, worsens food waste, pressures ethnic grocers into Anglo formats [Christian Britschgi]
- New York Attorney General-elect Letitia (Tish) James has been zealous about suit-filing in recent years, quality another matter [Scott Greenfield]
- “Plaintiff wins $1,000 in statutory damages for technical violation of Fair Debt Collection Practices Act. (Debt collector illegally used the words ‘credit bureau’ in its business name.) After plaintiff’s lawyers seek $130k in fees, district court awards them the princely sum of $0. Fifth Circuit: Just so. While fees are ordinarily mandatory, ‘special circumstances’ obtain here: The record suggests that the plaintiff colluded with her lawyers to generate this ‘outrageous’ fee-heavy lawsuit in Texas instead of in her home state of Louisiana.” [John Kenneth Ross, IJ “Short Circuit” on Davis v. Credit Bureau of the South]
- 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]
The American Bar Association (ABA)
has been granted monopoly status over the accreditation of law schools by the U.S. Department of Education (for purposes of determining eligibility for federal student loans) and nearly all state supreme courts (for purposes of determining eligibility to take the bar exam). Monopoly status is inevitably prone to abuse, and in recent decades the ABA has gone far beyond its original mission of establishing minimum standards for legal education to protect the public. Professor John Baker maintains that “the ABA is an ideological organization forcing its ideology into the standards on accreditation.”
I found while researching my book on legal academia, Schools for Misrule, that the ABA’s and AALS’s (Association of American Law Schools) role as accreditors has had far-reaching structural effects on law schools and probably ideological effects too, as well as restricting competition and discouraging innovation. I agree with Mark Pulliam that the federal government and states should refrain from artificially promoting these groups’ gatekeeper role or, worse, conferring monopoly status on them [Law and Liberty]
“The U.S. Labor Department on Tuesday officially rescinded the Obama administration’s ‘persuader rule’ that would have required lawyers and consultants to report on advice given to employers about persuading employees on union issues.” Among its numerous other problems, the rule drew fire from the American Bar Association and other groups as an infringement on lawyer-client confidentiality. [ABA Journal, earlier]
Mark Pulliam at Liberty and Law explores a theme I raised in Schools for Misrule: the ABA accreditation process for law schools is ideologically fraught and pushes the schools toward certain prescribed views of social justice. Even for well-established, high-ranking schools the process can be an arduous one, propelled by “what the ABA euphemistically calls ‘site visits,’ but would more commonly be referred to as compliance inspections.” And the standards are not neutral — in particular not Standard 206, which establishes “diversity and inclusion” as one of the association’s accreditation desiderata. Under that standard, site visitors and reviewers investigate the institution’s “commitment” to diversity, evaluating that commitment in light of the “totality of the law school’s actions and the results achieved.”
Schools are required, for example, to “create a favorable environment for students from underrepresented groups” The vagueness and open-endedness of such standards — might it contribute to a less favorable environment, for example, for a school to be short on course offerings or visiting speakers in a given identity-related area? — is sure to “invite subjective application, prompting schools to ‘over-comply’ to avoid an adverse finding.” No wonder schools cluster at the safe end by maintaining well-staffed diversity and inclusion departments, prioritizing demographic over intellectual diversity in faculty hiring, and cultivating attention to identity categories in student life. The piece kicks off what Pulliam says will be a periodic series.
In the name of curtailing money laundering and the risk of terrorist finance, Sens. Chuck Grassley (R-Iowa), Dianne Feinstein (D-Calif.) and Sheldon Whitehouse (D-R.I.) have introduced a bill that would require extensive reporting on the ownership of small corporations and limited liability companies. Provisions of the law “would regulate many lawyers and law firms as financial institutions under the Bank Secrecy Act,” notes the ABA Journal, and require them “to gather extensive beneficial ownership information on businesses when they incorporate. The information would be held and disclosed on request to many governmental agencies and financial institutions.” The businesses themselves would also face direct reporting and regulatory burdens.
The ABA is opposing provisions in this bill on the ground that they would infringe on traditional attorney-client privilege. “Concerns about erosion of attorney-general privilege have played a role in resisting numerous bad regulatory and prosecutorial initiatives in recent years,” I write in a new Cato piece. “Now if only the rest of us who are not lawyers could get someone to stand up so effectively against the government on behalf of our privacy interests.”