JURIST Guest Columnist Brad Abramson discusses the new ABA amendment…

At its recent annual convention the American Bar Association (ABA) adopted a resolution amending Rule 8.4 of the ABA Model Rules of Professional Conduct, the code of ethics that governs attorney behavior.

The amendment adds a new subsection to the attorney misconduct rule which, if adopted by states, will subject attorneys to professional discipline for engaging in “conduct related to the practice of law “that a “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.”

The adopted change sweepingly defines “conduct related to the practice of law” as including “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”.

In adopting the new rule the ABA ignored a deluge of opposition from attorneys and attorney groups. During the comment period, 494 comments were filed with the ABA, most of which opposed the amendments. Much of the opposition was based upon concerns that the new rule would violate the constitutionally-protected freedoms of attorneys, including freedom of speech and the free exercise of religion.

Indeed the ABA’s own Standing Committee on Professional Discipline questioned both the need for and the constitutionality of the rule. The committee stated in a letter sent to the ABA that “The Discipline Committee is concerned that the term “related to the practice of law” is ambiguous and that . . . [t]he terms “harass” and “discriminate” absent further definition, are similarly vague. . . We fear that without resolution of these questions and concerns and more precise definitions, lawyers and regulators will be left to guess what conduct may be covered under the proposed Rule. . . The Discipline Committee remains concerned that the proposed Model Rule 8.4(g) is overbroad . . . and therefore questions whether it would withstand a constitutional challenge.”

Similarly the Professional Responsibility Committee of the ABA Business Law Section stated in a letter to the ABA that “[t]he vagueness of the rule . . . raises serious due process concerns.”

These two committees were far from alone in voicing the concern that the new rule may be unconstitutional. In a Washington Post article published a month before the ABA’s adoption of the new rule, preeminent constitutional scholar Eugene Volokh, a UCLA law professor who teaches free speech and religious freedom law, referred to the rule as an “overtly view-point based . . . speech code.” “If you express pro-equality viewpoints,” Volokh wrote, “you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.”

And Edwin Meese III, a former attorney general of the United States, in a letter to the ABA called the new rule “a clear and extraordinary threat to free speech and religious liberty” and “an unprecedented violation of the First Amendment”.

Two recent law review articles one published in the Georgetown Journal of Legal Ethics and the other in the University of Alabama Law School’s Journal of the Legal Profession both contend that professional rules like the one the ABA adopted violate attorneys’ free speech and association rights.

And a group of 52 ABA member attorneys (of which I was one) in their comment opposing the change, pointed out that Indiana, a state that has amended its Rule 8.4 in a manner similar to the ABA Model Rule change has been enforcing its rule as a free standing speech code, disciplining attorneys simply for engaging in politically incorrect speech. In one of those cases, the attorney was disciplined merely for asking someone if they were gay. In another, an attorney was suspended from the practice of law for applying a racially derogatory term to himself. In neither case was the offending conduct shown to have had any prejudicial affect on the administration of justice. It was deemed sufficient that the attorneys had simply used offensive language. The 52 attorneys pointed out that, under the new rule, an attorney could actually engage in certain criminal conduct without violating the rules, but could be disciplined for engaging in offensive speech.

In fact some states have already refused to adopt even the earlier and much tamer version of the ABA’s Model Rule 8.4(d), citing constitutional concerns. For example, New Hampshire refused to adopt subsection (d) of the ABA’s earlier Model Rule 8.4 on the ground that it would violate attorneys’ constitutionally protected freedoms, stating that “A lawyer’s individual right of free speech and assembly should not be infringed by the New Hampshire Rules of Professional Conduct when the lawyer is not representing a client”.

Despite these concerns the ABA adopted the new rule after less than 27 minutes of “discussion” during which remarkably absolutely no mention was made of the rule’s constitutional infirmities. Despite the widespread opposition to the rule, the ABA’s “discussion”of the rule consisted of a small parade of ABA insiders’ undoubtedly hand-picked because of their support for the new rule, every one of whom encouraged the rule’s adoption.

The ABA’s willingness to violate the constitutionally protected freedoms of those whose interests it purports to represent is nothing less than shocking and must be recognized for what it clearly is, an example of ideology overriding any commitment to legal reasoning or constitutional liberty. This is quite an indictment of an organization of lawyers that purports to be the “voice of the American legal profession”.

The only good thing that can be said about the ABA’s adoption of the new rule is that it has dispelled any remaining doubt about the real nature of the ABA and has placed it on display for all to see. The ABA has finally completed its transition “begun about 20 years ago” from a legitimate professional organization representing and protecting the interests of American lawyers to a political organization now willing to blatantly assault the constitutional rights of its own constituency in order to advance its ideological agenda.

If American lawyers do not rise up and clearly denounce the ABA’s adoption of a rule of professional conduct that attacks their and their fellow attorneys’; constitutionally protected freedoms, they do not deserve to call themselves “lawyers”.

Brad Abramson is a member of the American Bar Association.

Suggested citation: Brad Ambramson American Bar Association attacks attorney speech rights, JURIST- Professional Commentary, August 20, 2016, http://jurist.org/professional/2016/08/brad-abramson-speech-rights.php.