News From the World of Tolerance — the American Bar Association Considers a Speech Code for Lawyers

by David French

This was inevitable. It appears that a committee of the American Bar Associ​ation is recommending that the ABA amend its Model Rules of Professional Conduct to include a rather blatant speech code. Over at the Washington Post, Eugene Volokh quotes the relevant recommended language:

It is professional misconduct for a lawyer to:… (g) 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 Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16….

[Discrimination and harassment] includes harmful verbal or physical conduct that manifests bias or prejudice towards others because of their membership or perceived membership in one or more of the groups listed in paragraph (g). Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

Conduct related to the practice of law includes 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. Paragraph (g) does not prohibit conduct undertaken to promote diversity.

Professor Volokh explains why the language is problematic:

So say that some lawyers put on a Continuing Legal Education event that includes a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side says something that is critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar.

If the ABA adopts the rule — and if state bar associations follow suit — I’d fully expect to see disciplinary complaints based on campus-style micro-aggressions. But my favorite part of the proposed rule is that it entirely exempts from its scope “conduct undertaken to promote diversity.” So you can harass or discriminate as much as you’d like — so long as it’s for the right reasons. Once again, this is campus-style reasoning. Intolerance is encouraged for the sake of tolerance:

Or say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint. Again, you’ve engaged in “verbal … conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The state bar, if it adopts this rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.

To paraphrase University of Pennsylvania professor Alan Charles Kors – a friend and mentor in the fight for civil liberties – speech codes send the message that certain segments of American society are simply too weak to live with freedom. Their fragile feelings can’t withstand the ordeal of actual debate. But we all know that there is nothing weak or fragile about the identity-politics Left. Instead, their will to power is strong, and the language of victimhood is a mere means to an oppressive end. 

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