The American Bar Association has adopted a new rule it says will crack down on discriminatory conduct in the legal profession, but conservative critics warn the real goal is to silence views contrary to the group’s liberal orthodoxy on gender identity and sexual orientation and drum attorneys who hold those views out of business.
Rule 8.4 of the American Bar Association’s Model Rules of Professional Conduct was amended this week. In addition to existing rules like not engaging in criminal actively, blatant dishonesty or attempting to influence government officials, a new section enters into brand new territory.
“It is professional misconduct for a lawyer to:
(g) “Engage in conduct that the lawyer knows or reasonably should know is harassment of discrimination harass or discriminate 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.”
Supporters of the change say this is mostly about putting an end to insulting behavior such as calling a female attorney “honey”, but others see a far more sinister agenda.
“This is an attempt to silence Christians in the legal profession. The main drivers of it are LGBT activists trying to eliminate religious liberty defenses on matters pertaining to same-sex marriage and also transgenderism, to purge observant Christians from the legal profession,” said Ken Klukowski, senior counsel and director of strategic affairs at the First Liberty Institute.
Former Attorney General Edwin Meese III and First Liberty Institute President and CEO Kelly Shackleford wrote a blistering letter to the ABA, calling the proposal fascist and imploring members not to approve it.
Klukowski believes the ABA’s goal is to scrub the the legal voice of Christians and people of other faiths from the courtroom.
“[The rule] would apply to all lawyers of conservative faiths in that it would also, for everyone still left in the legal profession, render people and institutions of faith radioactive as clients,” said Klukowski.
ABA members overwhelmingly adopted the new rule and say critics like Klukowski are reading things in the new rule that simply are not there. Klukowski says you need to understand the language of the ABA to see where the threat lies.
“When it speaks about ‘related to the practice of law,’ that includes not just your conduct but your verbal conduct and your business or social activity,” said Klukowski. “It applies to lawyers 24 hours a day, seven days a week in every aspect of their life.”
And he says the ABA was well aware of the scope of this language when it debated and approved the amended rule on misconduct. He says anyone can read the deliberations for themselves at the First Liberty Institute’s website.
“They’ll be shocked to find statements from the ABA president and from committee members when they were debating all this showing they knew exactly what all this was going to lead to. Some of them deliberately intended it, spoke about the need to root out discrimination that they say people might not know that their thoughts on these matters have anything wrong with them,” said Klukowski.
He says this is nothing more than a blatant assault on the first amendment freedoms of speech and free exercise of religion.
“It is a completely unprecedented censorship regime in that it is limiting the ability of lawyers to be able to engage in all sorts of political conversation,” said Klukowski.
He says lawyers could face severe punishment while off the clock for activities most people wouldn’t think twice about, including sharing the view over dinner at a restaurant that marriage ought to be the union of one man and one woman.
“Anyone sitting at that dinner table or even sitting at the next table could file an ethics complaint with the state bar, seeking to have that lawyer’s law license revoked because he engaged in verbal conduct at a social activity,” said Klukowski.
The scenarios only snowball from there, according to Klukowski. He says attorneys could face trouble for denouncing Black Lives Matter or publicly opposing amnesty for illegal immigrants. In addition, a lawyer teaching a Sunday School class could be targeted for expressing the biblical view on sexuality or marriage. In fact, simply being a member of a church with views opposed by the ABA could put a lawyer’s career in jeopardy.
“The fact that you’re an observant Roman Catholic could be cited as a social activity, as an affiliation, that is evidence of a discriminatory bias on behalf of that Catholic lawyer,” said Klukowski.
However, Klukowski is quick to point out that it’s not just lawyers of faith who could lose their careers. He says unbelieving attorneys could be in trouble if they take on clients who assert conscience rights, such as the bakers, florists and photographers who refuse to work at same-sex weddings.
“Even if you’re a liberal atheist lawyer, you’re going to be scared to take their case, because anything you say about your client’s case outside of the courtroom is not an essential aspect of representing them in court. Anything you say to the media, anything you say to a gathering could be used against you as verbal conduct reflecting a bias against LGBT people and you could lose your career,” said Klukowski.
A casual reader of the new rule might ask why the language stating the policy “does not limit the ability of a lawyer to accept, decline, or withdraw from a representation” doesn’t protect the ethical conduct of lawyers. Klukowski says that only protects attorneys in consultations with prospective clients, in filing briefs and arguing the case in court. All other conduct is left unprotected.
But do the ABA’s rules have any bearing on state laws? Klukowski says they most certainly do.
“Most state supreme courts adopt, word for word, any ABA model ethics rules. Those that don’t, use ABA rules as a starting point for developing their own ethics rules,” said Klukowski.
He says any complaint would likely trigger a state bar investigation involving a formal hearing before a court, and that will be a stain on the record of those lawyers regardless of the outcome.
“When someone’s looking around for a lawyer and you have ten choices, you’re less likely to go with the guy who was officially investigated by the state supreme court for potential unethical conduct, even if ultimately the vote comes down at the end of the day that you’re okay,” said Klukowski.
Finally, he says the new rule will be used to shape future generations of law students because most states will not let anyone take the bar unless they have graduated from an ABA-accredited law school. And those law schools will be teaching this new policy.
“You’re going to have tens of thousands of law students every year being indoctrinated by their professor. ‘Okay, now let’s turn to Rule 8.4,’ and it’s going to be taught right alongside all the other ethical requirements,” said Klukowski.
“All of them now will be taught Model Rule 8.4 as just certain speech and conduct that you cannot be associated with if you want a career in law,” said Klukowski.
