It is official. The American Bar Association says it is professional misconduct to discriminate against or harass opposing counsel, or anyone else for that matter, in the course of practicing law.
The ethics rule now forbids comments or actions that single out someone on the basis of race, religion, sex, disability and other factors. Nearly two dozen state bars and the District of Columbia bar have similar rules. But there has been no national prohibition of such behavior, which, many female lawyers complain, results in too many “honeys,” “darlings” and other sexist remarks and gestures toward them while they are trying to practice their profession.
You know what else is official? The ABA just reconfirmed its status as a left-liberal special interest group that no longer represents the interests of all lawyers but only those that belong to the PC crowd.
And we let these yahoos act as a gatekeeper on judicial appointments?
My friend and colleague Eugene Volokh comments:
This also goes beyond existing hostile-work-environment harassment law under Title VII and similar state statutes. That law itself has potential First Amendment problems, as I’ve argued and as some courts have recognized (though others have disagreed); see, for instance, the recent “Don’t Tread on Me” controversy. But in most states, it doesn’t include sexual orientation, gender identity, marital status or socioeconomic status. It also generally doesn’t cover social activities at which co-workers aren’t present; but under the proposed rule, even a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.
Hostile-work-environment harassment law is also often defended (though in my view that defense is inadequate) on the grounds that it’s limited to speech that is so “severe or pervasive” that it creates an “offensive work environment.” This proposed rule conspicuously omits any such limitation. Though the provision that “anti-harassment . . . case law may guide application of paragraph (g)” might be seen as implicitly incorporating a “severe or pervasive” requirement, that’s not at all clear: That provision says only that the anti-harassment case law “may guide” the interpretation of the rule, and in any event the language of paragraph (g) seems to cover any “harmful verbal . . . conduct,” including isolated statements.
Many people pointed out possible problems with this proposed rule — yet the ABA adopted it with only minor changes that do nothing to limit the rule’s effect on speech. My inference is that the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of. I’ll blog again shortly on other aspects of the proposal (such as the remarkable implications of banning discrimination based on “socioeconomic status”); but here I just wanted to focus on the new ABA speech code, and why state courts and state bars should resist the pressure to adopt it.
David French comments:
Legal conservatives will either conform or resist. They should resist. Earlier this week, the American Bar Association amended its Model Rules of Professional Conduct to include a speech code — the exact kind of speech code that’s been struck down repeatedly on campuses. Keen to address the crisis of female lawyers occasionally being addressed as “honey” or “darling” (at least that’s how the New York Times addressed the alleged need for the rules), the ABA endorsed sweeping speech rules that, if adopted by state bar associations, will apply not just to courtroom conduct but also to participation in any “bar association, business or social activities in connection with the practice of law.” The new rule prohibits “harmful verbal or physical conduct that manifests bias or prejudice toward others” and defines harassment as “derogatory or demeaning verbal or physical conduct.” At the same time, the rule claims that it doesn’t apply to “legitimate” advice or advocacy. It’s good to know that the ABA is now in the business of determining when my legal arguments are “legitimate.”
If my state board of professional responsibility adopts these new rules, then I’m clearly in trouble. Just in the past year I’ve engaged in the following kinds of speech that many people, including fellow lawyers, find biased or derogatory. I have argued that men cannot become women. Many would claim I’m “biased” against the transgendered and engaged in derogatory speech every time I scorn the notion of a woman with a penis or the idea of a pregnant man. I have argued that the right to same-sex marriage is not protected by the Constitution, and I do not believe that any same-sex union is legitimate in the eyes of God. In other words, it’s not truly a marriage. Once again many of my legal colleagues would consider me “biased” and “derogatory” — this time against gays and lesbians.
But as with many speech codes, actual enforcement isn’t the point. It’s about the fear of enforcement — the chilling effect. It’s about creating the impression that certain ideas are completely out of bounds — specifically, any idea or expression that offends favored victim groups. The application to “social activities” is particularly disturbing. Are dinner conversations at bar association events now within the jurisdiction of the thought police? Lawyers live in fear of ethical complaints. A mere allegation can ruin a career, and defending yourself from ethics boards can be painful and expensive even if your law practice remains intact. The safest course is always silence. The safest course is compliance. After all, you don’t want to be one of those people — the bigots and the haters.
The ABA is beyond reform. It's time for conservatives to quit it, instead of allowing their fees to fund this sort of stupidity, and to become active in their state bars. After all, the ABA's word is not law--only state ethics rules are. Fight the power.