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.

“The first portion of the rule would impose a duty on all attorneys to promote diversity and inclusion.” is a post from Overlawyered - Chronicling the high cost of our legal system

Update: Ontario law society drops mandatory diversity avowal is a post from Overlawyered - Chronicling the high cost of our legal system

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.

[cross-posted from Cato at Liberty; earlier]

Battles continue over lawyer speech codes, in both U.S. and Canada is a post from Overlawyered - Chronicling the high cost of our legal system

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.

Full piece here. More: Scott Greenfield.

Ontario lawyers resist mandatory promote-equality pledge is a post from Overlawyered - Chronicling the high cost of our legal system

Montana legislature: ABA, take a hike with that 8.4 rule is a post from Overlawyered - Chronicling the high cost of our legal system

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.

Eugene Volokh vs. Deborah Rhode on hostile environment and ABA 8.4(g) is a post from Overlawyered - Chronicling the high cost of our legal system

June 12 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“Elimination of bias” for Minnesota lawyers is a post from Overlawyered - Chronicling the high cost of our legal system

* Or in this case more accurately “Kollywood” — see comments.

“Defamation of the legal profession” is a post from Overlawyered - Chronicling the high cost of our legal system

“Obama Presidency is Good News for the Legal Profession” is a post from Overlawyered - Chronicling the high cost of our legal system