ABA files amicus brief in pending case testing legality of a Pennsylvania professional conduct rule muzzling lawyers’ supposedly offensive speech, clearly intended to mandate adherence to leftist race and other politics.
Not satisfied with imposing anti-free speech and potentially discriminatory rules on law schools, the American Bar Association (ABA) supports prohibiting practicing lawyers from engaging in speech that could offend someone in a favored protected group, on pain of losing their law licenses.
We’ve been covering the ABA’s advocacy for anti-free speech and discriminatory ideology. During the past year, we’ve particularly focused on ABA’s abuse of its status as law-school gatekeeper to impose wokeness on law schools. You can find our previous coverage of the ABA here:
- American Bar Association Abusing Its Accreditation Power To Force Race-Focused Study On Law Students
- Debate: Should American Bar Association Be Stripped Of Its Monopoly Law School Accrediting Power?
- License to Discriminate? ABA Committee Recommends Eliminating Standardized Testing For Law School Admissions
- Harvard SCOTUS Case: American Bar Association Supports “Race-Conscious Admissions Policies”
- American Bar Association Drops Proposal for Racial Quota System at Law Schools
- Pushback Mounts Against American Bar Association Plan To Ditch Required Standardized Admissions Testing
The ABA promotes this ideology in other fora too. It recommends model rules for professional conduct that carry a lot of weight with state authorities regulating attorney conduct. Back in 2016, the ABA approved a resolution amending its model rule of professional conduct 8.4 to bar lawyers from saying anything another may find discriminatory or harassing.
We know how this goes. Consider how Princeton University castigated its former professor Joshua Katz as a “race-baiter” for publicly opposing a set of DEI demands including race-conscious admissions and faculty hiring. (Princeton eventually fired this tenured professor on trumped-up claims based on a previously-resolved disciplinary matter.) At Legal Insurrection, we’ve extensively covered how cancel culture brands any challenge to its ideology as “discriminatory” or “harassing”.
The model rule is similar in purpose to changes ABA proposed as a revision to its law school Standard 206(c): “A law school shall annually assess the extent to which it has created an educational environment that is inclusive and equitable under Standard 206(a)(3).” Got it? If law schools don’t punish supposed uninclusive and inequitable speech, like Professor Katz’s criticism of racial quotas, they would risk losing accreditation based on their hostile environment. (Katz wasn’t a law school professor, but you get the idea.) ABA was supposed to present its revised Standard 206 for approval at an August meeting of its House of Delegates, but pulled it at the last minute, likely because of pushback from its public comments (LIF President William Jacobson’s among them).
ABA had more success pushing state-level attorney regulators to adopt its model rule 8.4. At least eleven states have “adopted a rule prohibiting a lawyer from unlawful harassment or discrimination in connection with the representation of a client or the operation of a law firm.” On the other hand, at least ten states rejected proposals to adopt rules based on the ABA model, including Arizona, Idaho, Illinois, Louisiana, Minnesota, Montana, Nevada, South Carolina, Tennessee and Texas.
Pennsylvania is one of the states that adopted a version of the model rule. Its Rule of Professional Conduct 8.4(g) makes it professional misconduct for a lawyer to:
in the practice of law, knowingly engage in conduct constituting harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. 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 advice or advocacy consistent with these Rules.
A federal court (Eastern District of Pennsylvania) held the rule violated the First and Fourteenth Amendments. (The court had previously invalidated an earlier iteration of the same rule. The Supreme Court of Pennsylvania subsequently amended the rule, without the usual notice and comment period.)
The defendant, Disciplinary Board of the Supreme Court of Pennsylvania, by its chair Jerry Lehocky, appealed to the Third Circuit. Lehocky filed his brief on September 6, 2022.The ABA filed an amicus brief on September 13. This was the organization’s chance to provide its research explaining that factually-proven, illegal discrimination and harassment are rife within Pennsylvania’s legal community, and that the administration of justice is in crisis because of it. In other words, to make its best pitch for upholding the rule by showing there’s a compelling need to police lawyers from being mean.
Instead, the ABA alleged generally that there were “widespread perceptions” that the “legal system” was “pervasively tainted by discrimination and harassment,” that it undermined public confidence in the “American” legal system, and that the ABA and Pennsylvania Supreme Court wanted to “restore that legitimacy.” It offered no concrete, specific information that there actually was a problem, just asserted generally that some people thought there was. It did offer some numbers about women experiencing sexual harassment, but did not cite to the source. (It cited instead to a webpage for the ABA Commission on Women in the Profession webpage, not a specific document.)
Given the obvious risk that the rule would chill speech, as the lower court held, ABA could have limited its model rule to reinforcing proper policing of the profession. Its rule could have stated, proven illegal discrimination and harassment on the job constitute ethical violations, and attorneys guilty of such conduct would be sanctioned accordingly.
Instead, it has set up an administrative proceeding to catch out attorneys voicing opinions unpopular with the ABA. Its method is reminiscent of the Obama Administration’s efforts to ditch due process in school administrative adjudications of sexual harassment charges, which the Biden Administration is trying to surpass. By defining the offense of “discrimination” and “harassment” so vaguely, and ratcheting up the stakes so that an administrative proceeding may destroy a charged attorney’s career, the ABA has designed a rule calculated to chill attorney discourse to voice only “acceptable” opinions.
Legal Insurrection Foundation is considering filing an amicus brief opposing the rule and supporting free speech for attorneys.DONATE
Donations tax deductible
to the full extent allowed by law.