The American Bar Association recently adopted a provision in its Model Rules of Professional Conduct that reads: “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 proposal could cause lawyers who hold traditional positions on social issues to be censored and disciplined. It dangerously cuts against everything we as Americans hold dear regarding freedom of expression.
This proposal could cause lawyers who hold traditional positions on social issues to be censored and disciplined.
Though freedom of speech is not absolute in the United States, Eugene Volokh, a legal commenter, notes the draconian nature of the proposed provision in a recent post on his blog: “The ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of.” Volokh continues, “The speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.” This new provision reads like a “speech code” for lawyers, limiting their ability to take on political views that others agree with.
Politicizing issues within the legal profession to enact a certain agenda is something the great Justice Scalia warned about many times in his opinions. For instance, in his dissent in Lawrence v. Texas, Justice Scalia wrote, “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” The new provision by the ABA is another example of a “law-profession culture” that has signed onto a progressive agenda.
Volokh further points out that the proposed provision goes even further than Title VII workplace discrimination laws: “So say that some lawyers put on a Continuing Legal Education event that includes 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 says something that is critical of gays, Muslims, or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar.”
It’s worth noting that the proposed provision isn’t a new instance of the legal profession’s progressive bias. Justice Scalia noted in his Lawrence dissent, “The American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.”
Even though the First Amendment right to freedom of speech is not absolute, the legal arena is one in which freedom of expression is absolutely key to preserve ordered liberty. In Palko v. Connecticut, the great jurist Benjamin Cardozo wrote, “Of that freedom [of thought and speech] one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom.” Threats and hostilities shouldn’t be tolerated, but if free and open discourse within the legal profession is quashed, as the ABA provision proposes, then the legal profession will be taking away a right that we as Americans hold dear to democracy and persuasion.
Justice Scalia sagely adds in his Lawrence dissent that “It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.” The ABA should not be taking sides in the culture wars, and instead should seek to provide a means to regulate our profession in accord with basic fundamental rights like freedom of speech.