JURIST Guest Columnist Mark Johnson Roberts, Chair of the American Bar Association Commission on Sexual Orientation and Gender Identity, responds that the new anti-discrimination ABA Model Rule is not an attack on free speech…

On August 17, JURIST published a Professional Commentary from attorney Brad Abramson entitled, “American Bar Association Attacks Attorney Speech Rights” concerning the ABA‘s August adoption of a new model rule for possible use by state courts that regulate lawyer behavior. The new Rule 8.4(g), if enacted in a state, would prohibit a lawyer from engaging in conduct, related to the practice of law, that the lawyer knows or reasonably should know is bias or discrimination based upon certain categories of persons historically subjected to such treatment in our profession and our society. The terms “related to the practice of law,” “knows,” “reasonably should know,” “bias,” and “discrimination” are all defined within Rule 8.4 or elsewhere in the ABA Model Rules of Professional Conduct.

ABA members undertook an effort to revise the rules in response to specific concerns about the justice system experiences of underserved citizens who are members of minority groups. The legal profession, notwithstanding 30 years of efforts to diversify itself, stubbornly remains one of the least diverse of American professions. It was also, until this rule was adopted, one of the few without a bias and discrimination provision within its conduct rules.

Mr. Abramson, as he notes, was one of “52 ABA Members” who submitted a joint written commentary opposing an early draft of the rule. A similar comment came from the Christian Legal Society (CLS). In total, some 70 percent of the comments that were received came from the 52 Members, the CLS, and their allies; 494 comments, by the way, represent about 0.125 percent of the ABA’s membership. Many of those comments simply adopted either the 52 Members or the CLS commentary without further discussion.

The ABA, perhaps unsurprisingly, is not in a position to “ignore” almost 500 comments received about any proposal it considers. On the contrary, that early draft of the rule was modified substantially in response to the comments that were received. For example, the Professional Discipline Committee, and the Business Law Section of the ABA, both mentioned as opponents in the Abramson article, withdrew their opposition in response to the subsequent amendments. Professional Discipline supported the revised rule.

The ABA has built its reputation on the quality of its work. To call the group, histrionically, “a political organization…willing to blatantly assault the constitutional rights of its own constituency in order to advance its ideological agenda” is to mispercieve the organization’s internal processes as well as its role in writing model codes. The ABA is a broadly diverse membership organization; it is paralyzed without the support of its constituents. Over 50 constituent entities, each with its own agenda and concerns, must be consulted before a rule like this one is adopted. None opposed the rule in its final form. In other words, people with legitimate constitutional concerns about the rule were consulted in this process, and their concerns were addressed.

That fact is reflected in the debate that took place at the ABA House of Delegates when it adopted the rule. Ordinarily, each side lines up their best arguments and their best speakers, just as Mr. Abramson suggests, and the “pro” and “con” sides take turns debating the relative merits of a proposal. Any ABA member may speak. In this case, no one spoke against the proposal. If “widespread opposition” to the rule remained after the extensive revisions that took place in response to the concerns that were expressed, the ABA House was unaware of it.

Relatedly, it is important to note that the ABA is not a governmental body. The drafting of model rules and statutes is one of its primary functions as a membership service organization, but it does not impose its rules on anyone. That duty falls to the state courts as regulators of lawyer conduct. The ABA would lose its reputation quickly if it started publishing model rules that state courts would view as unconstitutional. It is fair also to note that the ABA, as is often the case, is not leading this charge. No fewer than 25 American jurisdictions had adopted similar rules before the ABA acted.

It is not clear, and Mr. Abramson does not elaborate, what behavior he wishes to engage in that would be a violation of the rule as it was adopted. Certainly nothing in the rule applies to private religious practice, to being a member of his or any other organization, or to representing its positions whether a lawyer agrees with them or not. It appears instead that he is criticizing the rule as a way of advancing a political agenda — which the rule, perhaps ironically, protects his right to do.

Mark Johnson Roberts is Chair of the American Bar Association Commission on Sexual Orientation and Gender Identity and a is member of the House of Delegates by appointment of former ABA President Paulette Brown.

Suggested citation: Mark Johnson Roberts, New Anti-Discrimination ABA Model Rule is Not an Attack on Speech Rights, JURIST – Professional Commentary, October 19, 2016, http://jurist.org/hotline/2016/10/Mark-Roberts-ABA-Anti-Discrimination.php