{"id":120892,"date":"2018-03-07T09:23:24","date_gmt":"2018-03-07T17:23:24","guid":{"rendered":"http:\/\/lukeford.net\/blog\/?p=120892"},"modified":"2018-03-07T12:48:33","modified_gmt":"2018-03-07T20:48:33","slug":"wp-a-speech-code-for-lawyers-banning-viewpoints-that-express-bias-including-in-law-related-social-activities","status":"publish","type":"post","link":"https:\/\/lukeford.net\/blog\/?p=120892","title":{"rendered":"WP: A speech code for lawyers, banning viewpoints that express \u2018bias,\u2019 including in law-related social activities"},"content":{"rendered":"

During our Sunday interview<\/a>, Frame Game Radio<\/a>, a Jewish New York corporate lawyer, suggested that the following is why Kyle Bristow cucked so badly over the weekend<\/a>.<\/p>\n

A lawyer friend says: “Lawyers like to think of themselves as potential Atticus Finches, or Clarence Darrows, but they are just as craven and conformist as the rest of the population. The ABA code is antithetical to the concept of free speech and the protection of unpopular viewpoints.”<\/p>\n

Eugene Volokh writes<\/a>:<\/p>\n

The American Bar Association has adopted a new provision in its Model Rules of Professional Conduct \u2014 an influential document that many states have adopted as binding on lawyers in their state. I blogged about it<\/a> when it was just proposed, in slightly different form, but I thought it was worth repeating my analysis now that the ABA is formally recommending it to state bars and state courts. Here is the relevant text (emphasis added):<\/p>\n

\n

It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment<\/i> 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 paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.<\/p>\n

Discrimination and harassment . . . includes harmful verbal<\/i> or physical conduct that manifests bias or prejudice towards others<\/i>. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).<\/p>\n

Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law<\/i>. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing [diverse] employees or sponsoring diverse law student organizations.<\/p>\n<\/blockquote>\n

So say that some lawyers put on a Continuing Legal Education event that included 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 said something that was critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar:<\/p>\n

1. He has engaged in \u201cverbal . . . conduct\u201d that \u201cmanifests bias or prejudice\u201d toward gays, Muslims or transgender people.<\/p>\n

2. Some people view such statements as \u201charmful\u201d; those people may well include bar authorities.<\/p>\n

3. This was done in an activity \u201cin connection with the practice of law\u201d \u2014 Continuing Legal Education events are certainly connected with the practice of law. (The event could be labeled a bar activity, if it\u2019s organized through a local bar association, or a business activity.)<\/p>\n

4. The statement isn\u2019t about one person in particular (though it could be \u2014 say the debater says something critical about a specific political activist or religious figure based on that person\u2019s sexual orientation, religion or gender identity). But \u201canti-harassment . . . case law\u201d has read \u201charassment\u201d as potentially covering statements about a group generally, even when they aren\u2019t said to or about a particular offended person, and the rule is broad enough to cover statements about \u201cothers\u201d as groups and not just as individuals. Indeed, one of the comments to the rule originally read \u201cHarassment includes sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups<\/i>.\u201d But the italicized text was deleted, further reaffirming that the statement didn\u2019t have to be focused on any particular person.<\/p>\n

Or say that you\u2019re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters \u2014 Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint.<\/p>\n

Again, you\u2019ve engaged in \u201cverbal . . . conduct\u201d that the bar may see as \u201cmanifest[ing] bias or prejudice\u201d and thus as \u201charmful.\u201d This was at a \u201csocial activit[y] in connection with the practice of law.\u201d The state bar, if it adopts this rule, might thus discipline you for your \u201charassment.\u201d And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you\u2019re fine; if you express the contrary viewpoints, you\u2019re risking disciplinary action.<\/p>\n

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\u2019ve argued<\/a> and as some courts have recognized<\/a> (though others have disagreed); see, for instance, the recent \u201cDon\u2019t Tread on Me\u201d controversy<\/a>. But in most states, it doesn\u2019t include sexual orientation, gender identity, marital status or socioeconomic status. It also generally doesn\u2019t cover social activities at which co-workers aren\u2019t 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.<\/p>\n

Hostile-work-environment harassment law is also often defended (though in my view that defense is inadequate) on the grounds that it\u2019s limited to speech that is so \u201csevere or pervasive\u201d that it creates an \u201coffensive work environment.\u201d This proposed rule conspicuously omits any such limitation. Though the provision that \u201canti-harassment . . . case law may guide application of paragraph (g)\u201d might be seen as implicitly incorporating a \u201csevere or pervasive\u201d requirement, that\u2019s not at all clear: That provision says only that the anti-harassment case law \u201cmay<\/i> guide\u201d the interpretation of the rule, and in any event the language of paragraph (g) seems to cover any \u201charmful verbal . . . conduct,\u201d including isolated statements.<\/p>\n

Many people pointed out possible problems with this proposed rule \u2014 yet the ABA adopted it with only minor changes that do nothing to limit the rule\u2019s effect on speech. My inference is that the ABA wants to do exactly what the text calls for: limit lawyers\u2019 expression of viewpoints that it disapproves of. I\u2019ll blog again shortly on other aspects of the proposal (such as the remarkable implications of banning discrimination based on \u201csocioeconomic status\u201d); 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

During our Sunday interview, Frame Game Radio, a Jewish New York corporate lawyer, suggested that the following is why Kyle Bristow cucked so badly over the weekend. A lawyer friend says: “Lawyers like to think of themselves as potential Atticus … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[592],"tags":[],"class_list":["post-120892","post","type-post","status-publish","format-standard","hentry","category-articles"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t