In August, the American Bar Association (ABA) amended its Model Rules of Professional Conduct 8.4 which deals with misconduct by adding section (g) with the following: “It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity , disability, age, sexual orientations, gender, identity, marital status or socioeconomic status in conduct related to the practice of law.”
While on the surface this sounds reasonable and fair, obvious issues exists with this change.
The ABA, with close to 400,000 members and 3,500 associated entities, is the go-to for states when it comes to model ethical codes for law professionals. Forty-nine of fifty states have adopted the ABA Model Rules of Professional Conduct as their own model for ethical requirements. These rules are not laws, but are used by professionals in the field of law as a guide for what is acceptable behavior and serve as a basis of disciplinary actions against those that operate in a less than ethical manner.
Prior to this change, the rule simply stated that if an attorney knowingly manifested by words or conduct bias or prejudice in the course of representing a client and that bias caused prejudice in the administration of justice then there was misconduct. By adding the phrase “….in conduct related to the practice of law” this rule becomes something far more complicated and far reaching than anything that was present before. According to the new rule, it seems that any conduct that an attorney engages in while involved in the practice of law could be misconstrued as harassment or discrimination.
This could become problematic when those who are engaged in law school activities are considered practicing law when referencing court cases when those cases involve any of the listed categories in the new rule. Could a law professor, who is also a practicing attorney, be held in misconduct if they were to state that the right to a same-sex marriage is not mentioned anywhere in the Constitution? It seems that this new amendment could have a chilling effect on what is taught in regards to the law as the speaker will now have to make sure that what they are saying about certain cases and opinions in no way constitutes harassment or discrimination. Will teaching about illegal immigration, gender identity, sexual orientation, etc. now have to be handled through the prism of what constitutes harassment or discrimination.
In regards to a practicing law professional’s own religious beliefs, will they now be under scrutiny? What if a lawyer does not take a court case because it violates their own religious belief? It seems that under the new rule, this would be in violation.
The first amendment of the U.S. Constitution as well as the bill of rights of the Texas Constitution both prohibit abridging or curtailing the freedom of speech and impeding the freedom of religion. With this change to the ABA rules, it seems that the association will now be requiring the profession to which it is tethered to go against what both documents state unequivocally should never be done.
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