Every profession has its standards. Doctors who maim people lose their jobs, and teachers who abuse their students won't be licensed for long. But for lawyers, the list of unforgivable sins may be expanding to the heinous act of expressing personal opinions in social settings.
The American Bar Association is an organization that models rules for the legal profession. Different state bars are welcome to adopt their rules, and states overwhelmingly follow their lead. So when the ABA proposed an amendment to their misconduct standards, it was no small deal.
The problem is that the amendment is a violation of free speech. The relevant text states, "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."
For clarity, the ABA also released comments, noting that, "Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others" in activities including not just actually practicing law, but also "participating in bar association, business or social activities in connection with the practice of law."
This is incredibly broad language. Verbal conduct that manifests bias? Social activities in connection with legal practice?
Lawyers may often discuss controversial topics in forums like Continuing Legal Education events or a local bar dinner. What substantive conversation could lawyers hold that didn't violate a rule with such massive scope? Anyone actually expressing an opinion could run the risk of breaking the rule, which has already received plenty of criticism for "vague and uncertain" application doomed to be "fraught with difficulties" as well as its overbroad language and content discrimination.
But no one actually has to be thrown out of the legal profession for the rule to do its harm. As National Review writer David French points out, "actual enforcement isn't the point. It's about the fear of enforcement –– the chilling effect ... 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 ultimate effect of rules like this is to reduce healthy debate to fearful compliance.
This rule is not alone in chilling speech in the name of workplace harassment.
For example, in 2006, the Equal Employment Opportunity Commission ordered further investigation in the case of an employee who complained that his co-worker's "Don't Tread on Me" hat constituted racial harassment. As UCLA Law professor Eugene Volokh notes, no sane person ignores the risk of massive liability when dealing with speech and harassment claims. It's easier and safer to steer clear of the line, even if that means curtailing legitimate speech. And it's not far-fetched to anticipate this kind of broad prohibition applying to strictly political speech that is construed as racially-motivated criticism or endorsement of a sexist viewpoint.
Proponents of the rule cite sexism as the reason the rule is necessary. And Bloomberg View contributor Noah Feldman warns that "harassing words are prohibited because they are the mechanism whereby discrimination occurs."
But, as many sources have noted (including the Disciplinary Board of the Supreme Court of Pennsylvania, The South Carolina Bar's Professional Responsibility Committee, the Texas Attorney General's Office, and the Illinois State Bar Association), this rule isn't necessary in the overwhelming majority of jurisdictions that already have anti-harassment rules.
Regardless, addressing sexism wouldn't require adopting a rule that, as a recent Montana Joint Resolution stated, "would unlawfully attempt to prohibit attorneys from engaging in conduct that neither adversely affects the attorney's fitness to practice law nor seriously interferes with the proper and efficient operation of the judicial system."
Various states and organizations have analyzed the proposed rule and rejected it, including those listed above, as well as the Professional Responsibility Committee of the ABA Business Law Section. States that do not adopt the proposed rule simply abide by their current anti-discrimination rules or adopt amended versions of the misconduct standards.
The bottom line is that lawyers don't sign away their free speech rights by virtue of their profession. Opposing harassment is not synonymous with regulating private speech. And when it comes to respecting free speech, this proposed rule simply crosses the line.
Jana Minich graduated from Cedarville University with a degree in political science. She is an incoming law student at the University of Virginia School of Law.
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