The American Bar Association has officially adopted a new rule that will affect 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 to drum the attorneys who hold those views out of business.
Rule 8.4 of the American Bar Association’s Model Rules of Professional Conduct was changed this week. In addition to already 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.”
Some supporters of the rule change claim this is mostly about putting an end to comments like calling a female attorney “honey,” but others believe that if you read between the lines, it is far more damaging.
Ken Klukowski, senior counsel and director of strategic affairs at the First Liberty Institute says:
“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.”
Former Attorney General Edwin Meese III and First Liberty Institute President and CEO Kelly Shackleford delivered a message to the ABA—calling the proposal fascist and implored members of the ABA to not approve the amendment to the rule.
However, ABA members overwhelmingly adopted the new rule and responded to critics like Klukowski saying they are reading into the new rule and finding wording that simply is not there.
“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. It applies to lawyers 24 hours a day, seven days a week in every aspect of their life.”
And he said the ABA intentionally designed the language of the rule when it debated and approved the amended rule on misconduct. Klukowski said 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.”
The new adopted rule is clearly 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.”
The problem with the rule is that the circumstances surrounding the rule will escalate. Klukowski says that lawyers could face legal issues for denouncing groups like Black Lives Matter or publicly opposing illegal immigration. They could also be held liable for teaching a Sunday school class and discussing personal views on sexuality and marriage.
“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,” Klukowski said.
An attorney’s job is to interpret the law and Klukowski brings up a very valid point; that a lawyer will stretch the wording.
What are your thoughts on a lawyer having to bottle up his true thoughts on a religious or social issue?