The ABA’s Control Over What Lawyers Say Around the Water Cooler

The elites in America are falling all over themselves to become politically correct. Universities are banning “trigger warnings” that might offend someone. College administrators at schools like Cornell and Yale agreed to rip up copies of the U.S. Constitution after a person posing as a student described the document as “triggering” and “oppressive.” Go to YouTube and you can see and hear Carol Lasser, Professor of History and Director of Gender, Sexuality and Feminist Studies at Oberlin College, tell us, “The Constitution is an oppressive document.” The Chair of Comparative Studies at Oberlin adds, “The Constitution in everyday life causes people pain.” The pain it causes also protects her right to attack the Constitution, which she forgot to mention.

The State University of New York (SUNY) at Binghamton is offering a course called “#StopWhitePeople2K16.” In August, a university administrator defended this course as designed for students to “learn from one another” in “a manner that doesn’t cause unnecessary harm.” Shortly after that, it became national news when the University of Chicago announced to its students, “we do not support so-called ‘trigger warnings,’” and “we do not condone the creation of ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with own.” What a strange world we live in, when it is major news that a university supports free speech.

And what a strange world it is when the American Bar Association decides to discipline lawyers who engage in politically incorrect speech. With political correctness all the rage, it should not be a surprise that the ABA has joined the party, even if belatedly.

The ABA is not an ordinary private trade association because it has some governmental power, which the ABA uses to impose political correctness. That is exactly what the ABA did at its annual convention, held this August, in San Francisco. It decided what lawyers may say and whether men could use the ladies’ room at law firm.

First, some background. States give the ABA power to accredit law schools: you cannot take the Bar Exam in almost every state unless you graduate from an ABA-accredited law school. That law school must teach the ABA Model Rules of Professional Conduct and its students must pass a special exam, the Multistate Professional Responsibility Exam, that tests those ABA Rules. The ABA also successfully lobbies state courts to adopt these Rules, which become real law governing how and whether lawyers can practice law — just like the Rules of Evidence or Civil Procedure govern trials.

When the ABA changes its Model Rules, the MPRE changes its test. In August, the ABA House of Delegates approved a significant and controversial change to Rule 8.4. You can find the exact wording of new Rule 8.4(g) on the internet, along with the “Comments” to that Rule, which provide guidance to interpret the Rule. The official legislative history for this Rule is also available online.

Before this new Rule, there was a rather vague Comment in Rule 8.4 that advised that a lawyer, “in the course of representing a client,” should not knowingly manifest bias based on various categories “when such actions are prejudicial to the administration of justice.” The new Rule and Comment go well beyond this former Comment, which was not even a black-letter rule.

This new Rule 8.4(g) provides that it is “professional misconduct” to engage in discrimination based on “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.” The ABA Report (explaining the reasons for this controversial change) starts with quoting then-ABA President Paulette Brown, who immodestly tells us that lawyers are “responsible for making our society better,” and because of our “power,” we “are the standard by which all should aspire.”

Once a Court adopts these changes, a violation can subject a lawyer to discipline, such as disbarment, suspension, or public censure. In addition, Courts also enforce the Rules in the course of litigation (e.g., sanctions, disqualification). Courts also routinely imply private rights of action from violation of the Rules — malpractice and tort suits by third parties (non-clients). Violation of the Rules matter. They are more than Law Day rhetoric.

Let us look at the language of Rule 8.4(g). One would think that lawyers should be expert at drafting rules. They should be particularly expert at drafting rules about the practice of law.

Discrimination includes “verbal or physical conduct that manifests bias.” The First Amendment applies to speech, but the ABA tries to get around that by labeling speech as “verbal conduct.” However, “verbal conduct” is an oxymoron. Rule 8.4(g) prohibits mere speech, divorced from discriminatory action. If I say, “your money or your life,” I’m engaging in conduct (robbery) accompanied by words. If I say, “I wish I had Bill Gates’ money,” I’m just engaging in speech.

Consider this example. One lawyer tells another, at the water cooler or a bar association meeting on tax reform, “I abhor the idle rich. We should raise capital gains taxes.” Rule 8.4, Comment 4 makes clear that it covers any “bar association, business or social activities in connection with the practice of law.” The lawyer has just violated the ABA Rule by manifesting bias based on socioeconomic status. If the other lawyer responds, “You’re just saying that because you’re a short, fat, hillbilly, neo-Nazi,” he’s in the clear, because those epithets are not in the sacred litany. That can’t be what the ABA means, because it is always in good taste to attack the rich. Yet, that is what the Rule says.

During a CLE panel discussion on welfare laws, one lawyer says that too many people receive welfare not because they need it but because they are “lazy.” The lawyer is subject to discipline because the lawyer’s comments may “manifest bias.”

The EEOC has already said that it can be racist and a “hostile work environment” if the U.S. Postal Service allows a coworker to wear a cap that says, “Don’t tread on me,” along with a drawing of a coiled snake. The EEOC acknowledged that the “don’t tread on me” flag “originated in the Revolutionary War in a non-racial context.”[1] Still, because some people might think it racist, that is enough to launch a full-scale investigation. The fellow just wore a cap; there was no finding that the person who wore the cap even said anything offensive to the person complaining.

The ABA goes well beyond this EEOC case because its Rule covers gender identity, marital status, and socioeconomic status. It also includes social activities where no co-workers are present. Even “a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.”

Assume, at another bar meeting dealing with proposals to curb police excessiveness, one lawyer says, “Black lives matter.” Another responds, “Blue lives [i.e., police] matter, and, we should be more concerned about black on black crime.” A third says, “All lives matter.” Finally, another lawyer says, perhaps for comic relief, “To make a proper martini, olives matter.” The first lawyer may be subject to discipline, because some people argue that “black lives matter” is racist. All the others also risk discipline for analogous reasons. And thus the First Amendment gets nibbled away, bit by bit..

Even when a Court does not enforce the Rules, they will affect lawyers’ speech, because good lawyers do not want to face any non-frivolous accusation that they are violating the Rules. The ABA as well as State and local bar associations routinely issue Ethics Opinions advising lawyers what to do or avoid. Most lawyers follow the advice. Consider this example. The St. Thomas More Society is an organization of “Catholic lawyers and judges” who strengthen their “faith through education, fellowship, and prayer.” At a St. Thomas More-sponsored CLE, some lawyers on a panel (perhaps all the lawyers) object to the Court’s gay marriage rulings. The state bar may draft an ethics opinion advising that lawyers risk violating Rule 8.4(g) if they belong to a law-related organization that is not “inclusive” and does opposes gay marriage. Many lawyers may decide it is better to be safe and leave the St. Thomas More Society than to ignore the Ethics Opinion and risk a battle. In contrast, if they belong to an organization that favors gay marriage, they are home free.

Let’s turn to “gender identity.” Assume a law firm does not hire a job applicant who seeks a position as a messenger. The firm’s decision to hire or terminate messengers is conduct related to “operation and management of a law firm or law practice.” The disgruntled messenger may complain to the disciplinary authorities that he is transgender and the firm did not hire him because of that. He can point to the fact that the law firm’s restrooms discriminate based on “gender identity” as evidence of gender-related bias.

The law firm may claim that it did not know the disgruntled applicant is transgender. That is an issue on the merits, which the judge and jury decide after full discovery and trial. Rule 8.4(g) does say the lawyer must know “or reasonably should know” that his “verbal conduct” is harassment or discrimination, but that requirement is easily met. Lawyers “reasonably should know” that the federal government now contends that preventing someone from using the restroom they prefer is discrimination based on gender identity.

The lawyer hauled before the Discipline Board will find that its proceedings, unlike courts, are typically not open to the public, there is no jury, and the rules of evidence are relaxed. It’s safer to remove the restroom signs that protect privacy of men and women.

Problems go well beyond the weak procedural protections of state disciplinary authorities. The risk includes also civil liability, because the disgruntled employee may sue. Expect that to happen here. The law firm will face expensive discovery, a gauntlet of motions, and possibly years of litigation — particularly if the disgruntled applicant files a class action.

Many states have no law on gender identification discrimination. Some states require that individuals use public restrooms that correspond to their sex on their birth certificates. Congress has not enacted a statute banning discrimination based on “gender identification,” and the EEOC did not announce until recently that it regards workplace transgender discrimination as illegal. The ABA Rule still applies, because it makes clear that the “substantive law of antidiscrimination and anti-harassment statutes” is not “dispositive.” The ABA Rule applies even if no state or federal law bans “verbal conduct” dealing with gender identification and even if no court has found any violation.

Is it the best use of scarce Bar resources to discipline lawyers who may violate a vague rule that prohibits some speech because the speech relates to conduct that does not violate state or federal law but does violate the new Rule 8.4(g)? It’s not as if the disciplinary authorities are looking for things to do. There are plenty of lawyers who are incompetent, commingle trust funds, or cheat third parties.

Ronald Rotunda is a 1970 graduate of the Law School. He is a professor of law at the Chapman University School of Law.

[1] Shelton D., Complainant, EEOC DOC 0520140441, 2016 WL 3361228, at *2 (June 3, 2016).

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