RUTHFULLY YOURS

From August 4 through 9, 2016, the American Bar Association (“ABA”) will hold its annual meeting in San Francisco.  Among the scheduled events is the business meeting of the House of Delegates, the ABA’s governing body.  The Delegates will consider a number of policy recommendations presented as reports from its standing committees.  One of these proposals comes from the ABA’s Standing Committee on Ethics and Professional Responsibility and, if adopted, would undermine many of the rights of lawyers, including the historic and absolute right of each lawyer to decide whom he will choose to represent.

The proposal would add a new, vague, and expansive list of prohibitions to Rule 8.4 in the ABA’s Model Rules of Professional Conduct governing “Misconduct.”  The purpose of the “Misconduct” rule is supposedly to achieve the objective of “Maintaining the Integrity of the Profession,” but this new proposal is all about social engineering, having nothing at all to do with ethics.

The proposal would create a “new Rule 8.4(g) that would make it professional misconduct for a lawyer to engage in harassment or discrimination 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.”  High sounding words indeed — but words that, if adopted by state bar associations, would empower those who run state bar associations — largely establishment lawyers — to selectively discipline and even disbar individual lawyers whose values are traditional rather than progressive.

In justification for creating new favored classes, the proposed Comment blithely asserts: “Conduct that violates paragraph (g) undermines confidence in the legal profession and our legal system and is contrary to the fundamental principle that all people are created equal.”  Remarkably, the Committee found only one of the 11 itemized preferred classes — “socioeconomic” — to be even worth debating.  As for the other 10 categories, the Committee simply presumed that no one could possibly object, for they are supposedly based on the “fundamental principle” of equality.

But it has long been recognized that the equality principle that applies to race does not apply to other types of classifications, even including sex.  If there can be men’s and women’s basketball, volleyball, and track teams, why can there not be law firms which limit their practice to only wives or only husbands in family law matters?  Why should such firms be outlawed because they make a distinction between clients on the basis of their “marital status”?  What about a person’s “sexual orientation”?  Or their “gender identity”?  Neither of these latter two terms is objectively determinable or even objectively observable.  Rather, they are completely subjective, dependent solely on a person’s self-perception.  Surely lawyers — of all people — ought to know better than to concoct such a vague and standardless rule.

The U.S. Supreme Court has just ruled again that even race distinctions are not a per se violation of the equality principle when used by numerous colleges and universities in recruitment of faculty and students.  If a law firm cannot be denied the right to adopt a discriminatory hiring policy to achieve a desired diversity of the 11 categories within a particular law firm, as the ABA rule allows, why should another law firm be denied the right to adopt a hiring policy to achieve a desired unity within its law firm?  Must all law firms look alike?  What is wrong with diversity among firms?  And why should a law firm with an international practice be barred from seeking to expand by hiring lawyers of a certain national origin or ethnicity to enhance its ability to better serve clients of similar origin or ethnicity?

Religion, likewise, is wholly unlike race.  Statutes accommodating religious conscience abound at both the state and federal level.  Law schools with an overtly religious mission, including the hiring, faculty, and admission of students, enjoy ABA accreditation.  Nationwide, lawyers and law firms hold themselves out to the public as Christians, letting the community know that they are dedicated to practicing law in accordance with ethical rules of their personal faith.  Why should such law firms be barred from hiring lawyers which share the same religious convictions?  Indeed, the Holy Scriptures counsel believers not to become “unequally yoked” with nonbelievers.  2 Corinthians 6:14.  Are Christian lawyers to be barred by ethics rules from obeying Biblical statutes?  Why should lawyers not be free to hire and fire staff on the basis of fidelity to their shared moral code?  In truth, doesn’t everyone make distinctions based upon their personal moral code?  Why should a lawyer be penalized if he candidly advises potential clients what that code is?  Would not prospective clients be better served by such candor and transparency?

Outlawing distinctions based upon socioeconomic status would penalize large swaths of the legal community.  According to this new rule, an attorney holding himself out as one who specializes in high asset estate planning or divorce, white collar crime, or corporate tax could be exposing himself to a charge of discrimination.  So too would a lawyer be at risk who has expertise in defending eviction cases and defending debtors from aggressive creditor practices.

To be sure, the ABA’s comments to the proposed rule states that a “lawyer does not violate [the new rule] by limiting the scope or subject of the lawyer’s practice.”  However, the Comments do not override the rule.  And, while it would appear clear that a law firm could decide not to take any divorce cases whatsoever, it is much less clear if a law firm could advertise that it only represents men in divorce cases.  Would that advertisement not invite a complaint to be filed against the firm as constituting discrimination on the basis of sex?  Where and how do you draw the line?

If the ABA were truly concerned about a proper discriminatory ethic, then — as advised by a group of 52 ABA members in comments opposing the rule — that Committee would have put forward a principled reason for including each of the 11 classes represented in the new rule.  But the establishment running the ABA is probably correct that, within its ranks, there is an orthodoxy of progressive thought such that no reasons are necessary.  However, if race and age are protected classes, why not weight or health?  If marital status, why not family responsibility/caregiver status?  Indeed, as this 52-member group of lawyers pointed out, there appears to be a veritable growth industry of protected classes limited only by one’s imagination.  Thus, these 52 lawyers concluded:

Which groups are protected and which are not appears to be the result of simple political pressure, and nothing more.  If the members of a certain interest group bring sufficient political pressure upon the ABA, the group gets protection.  If not, they don’t.  Such a construct is bound to bring the ABA into disrepute and raises the question whether the ABA is really interested in justice, or is simply the mouthpiece of special interest groups.  [Joint Comments [of 52 ABA Members] Regarding Proposed Changes to ABA Model Rule of Professional Conduct 8.4 (Jan. 19, 2016) at 22.]

The ABA long ago abandoned its role as a professional organization and has become exactly what the commenters describe it as — just another special interest group.  The ABA is totally uninterested in professional ethics based on sound moral choices, and has shifted its agenda to imposing a progressive political orthodoxy upon the legal profession, through the politicization of legal ethics.  If adopted by the ABA House of Delegates, the new Rule 8.4(g) will lay the groundwork to weed out lawyers who do not share the ABA’s peculiar “politically correct” views.

Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School.  Bill Olson served in three positions in the Reagan administration.  They now practice constitutional law together, defending against government excess, at William J. Olson, P.C., Vienna, Virginia.