Posts Tagged ‘bar associations’

Higher education roundup

Montana legislature: ABA, take a hike with that 8.4 rule

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.

Relaxing the ABA’s rules on law school faculty structure

The American Bar Association is proposing easing its mandate that law schools use full-time faculty for at least one-half of courseload; the new minimum would be one-third. The shift would be a step toward reviving the once-common and generally less expensive model of law school oriented more toward training-for-practice and less toward scholarship and research. I recommended similar reforms in Schools for Misrule. [Paul Horwitz; Paul Caron and links]

Free speech roundup

Eugene Volokh vs. Deborah Rhode on hostile environment and ABA 8.4(g)

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]

Related: ABA president Linda Klein says hate speech “cannot be tolerated.” [Scott Greenfield] And a Eugene Volokh podcast for the Federalist Society on 8.4.

“My inference is that the ABA wants to … limit lawyers’ expression of viewpoints that it disapproves of.”

Eugene Volokh on troubling implications for speech of the American Bar Association’s new adoption of rules declaring it a professional responsibility violation for lawyers to express bias in various ways, including in the course of “law-related social activities.” More: ABA Journal, Ron Rotunda/WSJ, Stephen Bainbridge.

Proposal: traditional legal ethics should yield to climate interests

Speaking of infringements on what is now the scope of attorney-client privilege, an Oregon law professor has proposed to make environmental protection part of lawyers’ ethical duties. [Daily Climate; Tom Lininger, “Green Ethics for Lawyers,” Boston College Law Review, 2016; Scott Greenfield] Some backers hope the idea will encourage lawyers representing the fossil fuel industry, in particular, to disregard conventional attorney duties of loyalty to clients; indeed, it might someday serve as grounds for them to be disciplined if they refrain from betraying client interests in various situations.

May 18 roundup

  • Do behavioral economists acknowledge policymakers’ own foibles? Not often it seems [Niclas Berggren via Bryan Caplan]
  • China, not unlike our own attorney general-environmentalist alliance, is cracking down on the work of what it deems ideologically harmful nonprofits [ABA Journal]
  • Barking mad: new ABA ethics proposal would deem it professional misconduct for lawyers to discriminate on various grounds, including “socioeconomic status,” in choosing partners, employees and experts [Eugene Volokh, Sara Randazzo/WSJ Law Blog]
  • Virginia still has a law requiring annual safety inspection of your car, and it’s still a bad idea [Alex Tabarrok]
  • Court in Canadian province of New Brunswick rules against honoring will that left estate to racist group [CBC]
  • From the left, Paul Bland sees Monday’s Supreme Court decision in Spokeo v. Robins as a big loss for business defendants [Public Justice, earlier] Contra: Andrew Pincus, plus more from WLF.

ABA: lift ban on credit for paid externships

ABA Journal via Paul Caron/TaxProf:

A proposed change in the law school accreditation standards that would lift the ban on students receiving academic credit for paid externships has drawn a lot of comment—and much of the comment is in opposition to lifting the ban.

Under the current standards, law students are barred from receiving both credit and pay for an externship. But the governing council of the ABA Section of Legal Education and Admissions to the Bar has approved for notice and comment a proposal that would eliminate the ban.

Comments on the proposal are here; for a student-eye recounting of the possible advantages of the proposal, scroll (h/t Ilya Somin) to the fifth letter in the series, by Peter Donohue, editor in chief of the George Mason Civil Rights Law Journal.

It is somewhat surprising (in a good way) to find the ABA inviting such a shakeup of the way things are done in legal academia, and less surprising to find many faculty resisting.

Just as other licensed professionals typically have an incentive to resist competition from alternative providers — lawyers to resist the incursions of paralegals, physicians those of RNs and pharmacists, and so forth — so professional educators have an incentive to resist competition from on-the-job training. That helps explain why the organized providers of government-licensed education are so keen to draw and enforce boundaries in this area: nothing for which the student gets paid should count toward obligatory time spent in education. And yet some employers would bid significant sums for the work efforts of lawyers in training, and that compensation in turn could make a dent in the typically high cost of obtaining a law degree. “Any proposed changes will come back to the council for final consideration in March.”