A speech code for lawyers
First Amendment | Proposed rule seeks to silence conservative practitioners
by Steve West
Posted 9/29/20, 11:55 am
Despite the popular stereotype of lawyers as unnecessarily verbose, a rule proposed by the American Bar Association could discourage them from speaking at all. Under ABA Model Rule 8.4(g), an attorney commits misconduct by doing anything related to the practice of law that he or she “knows or reasonably should know” constitutes harassment or discrimination based on a host of characteristics, including sexual orientation and gender identity. Such a broad discrimination ban could infringe on conservative lawyers’ right to free speech and discourage them from working with religious institutions.
The national voluntary association of lawyers passed the model rule in August 2016. It only becomes binding if state bar associations, which license attorneys, formally adopt it. The Christian Legal Society’s Center for Law and Religious Freedom says 24 states have rules addressing bias in some form, but only Vermont has adopted a ban as broad as Rule 8.4(g). At least five states—Alaska, Hawaii, Iowa, North Carolina, and Texas—are actively considering the adoption of Rule 8.4(g). Louisiana, North Dakota, South Dakota, and Tennessee have rejected it, while others have taken no action on it.
Kim Colby, director of the Center for Law and Religious Freedom, called the proposal an attempt to foist progressive ideas about sexual orientation and gender identity onto religious conservatives. Existing laws protect against actual discrimination, she explained, but the model rule goes further to bar any speech or conduct someone could interpret as discriminatory.
“Even if you don’t violate a state or federal nondiscrimination law, you could still be sanctioned,” Colby said.
The rule would also affect the communities where religious attorneys serve. It could discourage lawyers who have Biblical values regarding sexual conduct and marriage from participating on the boards of churches, Christian colleges, faith-based adoption agencies, and other religious or conservative institutions, Colby said.
“The public relies on attorneys for knowledge about the law and guidance about where the law is going,” said North Carolina attorney Dan Gibson, who is helping spearhead opposition to the rule in the state. If attorneys can face complaints and investigations for comments someone finds offensive, “this will just have a silencing effect,” he said.
Colby noted the rule could also discourage attorneys from joining organizations like the Christian Legal Society that support a Biblical view of marriage and sexual conduct. Even the threat of a state bar discrimination complaint would expose attorneys to investigations and sanctions that could impact their livelihoods.
Gibson said he would support a carefully crafted guideline to punish racially or sexually discriminatory behavior, but he rejects attempts to silence speech some may see as offensive. “This is like burning down the house because you find a cockroach in it,” he said. “It gets rid of the problem, but it causes much bigger issues.”
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Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.