The American Bar Association has adopted an anti-discrimination professional conduct rule, which some lawyers fear has unreasonable implications far beyond the practice of law.
The new rule bars engaging in conduct the lawyers “know or reasonably should know is 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.”
Though only the state bars may pass conduct rules constraining attorney behavior, rules adopted by the ABA wield great influence, often prompting the state bars to promulgate the same or similar regulations.
The rule prompted vigorous debate among practitioners and commentators, many of whom feel the rule is imprudently tailored and implicates speech or activities that cannot reasonably be considered discriminatory. UCLA School of Law professor Eugene Volokh, a free speech expert, fears the rule could incriminate lawyers speaking on panels debating marriage equality or immigration law.
“In the process, unsurprisingly, the debater on one side says something that is critical of gays, Muslims or transgender people,” he writes at Volokh Conspiracy, the eponymous law blog he curates at the Washington Post. “If the rule is adopted, the debater could well be disciplined by the state bar.”
In a subsequent post, Volokh also took issue with the rule as it pertains to socioeconomic status, suggesting ABA discipline could reasonably follow should a law firm prefer hiring graduates of elite law schools or doing business with other practitioners of high pedigree. He further argued many of the specific forms of discrimination captured in the new rule were redundant given the surfeit of municipal, state, and federal anti-discrimination statutes.
A group of ABA attorneys echoed Volokh’s concerns by filing an open letter claiming the rules were a significant departure from the historical scope of attorney regulation, arguing the new provision constituted a free-floating restriction on lawyer behavior in all aspects of life.
“The amendments now under consideration, however, would take Rule 8.4 in a completely new and different direction because, for the first time, the new Rule would subject attorneys to discipline for engaging in conduct that neither adversely affects the attorney’s fitness to practice law nor seriously interferes with the proper and efficient operation of the judicial system,” they write.
The new rule was adopted by acclamation by the ABA’s House of Delegates, soliciting only a handful of “nay” votes.
“The states have not waited for the ABA to act,” Myles Lynk, chair of the ABA Standing Committee on Ethics, said, arguing the national organization was falling behind its counterparts in the states. “They have been laboratories of change … it is time for the ABA to catch up.”
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