The Attorney General of Texas, Ken Paxton, issued an opinion calling it unconstitutional. Montana tried it. The legislature stepped in, passing a resolution that it was unconstitutional. The bars in Pennsylvania, Illinois and South Carolina also rejected it as unconstitutional. Not a single state has adopted it.
ABA Model Rule 8.4(g):
It is professional misconduct for a lawyer to:
(g) 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 orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. 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 legitimate advice or advocacy consistent with these Rules. (Emphasis added.)
Part of this rule is uncontroversial. It had already existed in most disciplinary codes, and reflected the extant law under Title VII. But then, part of it exists nowhere else, except in the fevered brows of social justice
You might think the commentary, combined with the fact that every state that has considered the rule has rejected it as unconstitutional, would be a red flag. Not in Nevada.The Board of Governors of the State Bar of Nevada has petitioned the Supreme Court to amend its Rules of Professional Conduct to include the new Rule 8.4(g), just another “anti-harassment / anti-discrimination provision.” Nothing to see here. After all, who isn’t against harassment and discrimination, right?
As of August 2016, approximately 25 jurisdictions had already adopted an anti-harassment
/ anti-discrimination provision in their professional conduct rules. Bar counsel
sought National Organization of Bar Counsel input regarding enforcement experiences in these jurisdictions, and learned that enactment of an anti-discrimination provision had neither substantially impacted prosecution caseloads, nor generated significant First Amendment litigation.
This isn’t exactly a lie (because that would violate ethics rules), but a trick. See how they claim 25 jurisdictions already adopted it? Wait, not quite “it” at all, but “an” anti-harassment / anti-discrimination provision. In other words, not this one. Not 25 jurisdictions. Not a single jurisdiction. No one has adopted this rule, and the reason is that it’s flagrantly unconstitutional.
But wait, they dealt with that too.
…nor generated significant First Amendment litigation.
While relatively true of rules that aren’t this rule, this assertion borders on the grossly misleading. While it might be said that this rule hasn’t been the target of significant litigation, that’s because not a single state has adopted it. There’s nothing to litigate when it’s been universally rejected because of its facial unconstitutionality.
Whether one views the Nevada State Bar Board of Governors as being crafty or deceitful, the petition is clearly and deliberately misleading, whether by commission or omission. Wrapping it up in the pretty pink bow of anti-harassment and anti-discrimination imbues any rule with the imprimatur of goodness and virtue. Neglecting to mention that it violates the First Amendment, as so many initiatives of social justice do, is a big deal.
But trying to create the false impression that it’s not even controversial, but widely accepted along with unicorns and rainbows is where the Board of Governors takes its dive into the cesspool. And once one state is splashing about in the cesspool, will others, pushed by their own social justice
warriors bar officials, point at Nevada and cry, “see, see?!?”
The Montana Legislature’s resolution goes beyond the Rule’s clear First Amendment failings to strike directly at the heart of this bit of ABA social engineering:
Contrary to the ABA’s world view, there is no need in a free civil society, such as exists in Montana, for the cultural shift forced by the proposed rule, and even if such a need did exist, the Supreme Court has no constitutional power to enact legislation of any sort, particularly legislation forcing cultural shift,
This rule isn’t really about harassment or discrimination, but about “normalizing” the social justice cultural shift by making it part of the rules. This has become the “ABA’s world view” since it was taken over by academics and “lawyers of the left,” but has nothing to do with legal ethics or law. It’s just their religion, and they want to force everyone to pray to their social justice god.
Will Nevada be the state where they sneak this rule’s nose under the tent? Will the Nevada Supreme Court take kindly to being treated like fools, misled, tricked into believing this is not big deal? Will the Nevada State Bar Board of Governors get away with crafting a deliberately misleading petition to their Supreme Court in the hope (and, perhaps, belief) that their judges are too stupid to realize the scam?
Will Nevada be the first, and only, state, to adopt a disciplinary rule for lawyers that is clearly unconstitutional and serves primarily to socially engineer the bar to acquiesce in the social justice cultural shift, upon pain of disbarment?
What do you think, girls*? Oops, I just engaged in a disbarrable offense in Nevada if this new rule is adopted. Nothing wrong with that, right, Linda Klein**?
*Yes. It’s necessary.
**ABA President Linda Klein, who wants her legacy to be all lawyers standing in a circle, holding hands, crying together, while she rides off into the rainbow on her unicorn.
Rules like this are troublesome for federal courts as well. Some (perhaps most) federal district courts, which have the power to adopt their own ethical rules, simply incorporate by reference the ethical rules adopted in the state where the federal court is situated. Those state rules are often identical, or nearly so, to the ABA rules.
Thankfully, our court changed a while back. We did so for a variety of reasons including a reluctance to adopt the ABA rules fo reasons similar to the ones articulated in your post.
Our local rule, NEGen. R. 1.7(b) provides:
“Conduct. Attorneys must refrain from conduct unbecoming of a member of the bar.
(A) The court declines to adopt other codes of professional responsibility or ethics.
(B) However, and in addition to any other material, the court may consult other codes of professional responsibility or ethics to determine whether a lawyer has engaged in conduct
unbecoming of a member of the bar.”
By the way, the standard “conduct unbecoming of a member of the bar” comes from Federal Rule of Appellate Procedure 46(b)(1). It is simple and has a long history.
Additionally, we no longer rely on Nebraska’s ethics counsel to prosecute disciplinary matters. On the contrary, we handle disciplinary matters using our own system. This change resulted, for among other reasons, because convicted federal offenders were filing frivolous ethics complaints against federal defense counsel or the federal prosecutor with the state ethics counsel and using those filings to as a basis for frivolous section 2255 motions.
We thought we could handle such complaints more expeditiously and with less trouble to counsel. We also saw that these state ethics complaints were a way to manufacture quasi-evidence in section 2255 cases claiming ineffective assistance of counsel. Because counsel was almost always required to respond in the state system, the offender could use that response as a basis for the 2255 motion. By getting to these complaints fast and on our own, we blunted the filing of frivolous section 2255 motions and stopped the practice of using the state system to harass federal practitioners.
In short, your post is very important for federal practitioners. Thanks for highlighting this matter.
All the best.
From what I’m told, most states require a response to all but the most ridiculously frivolous complaints, thus creating a bizarre burden on the lawyers, who is compelled to decipher what it is that’s being alleged against him, what rule it violates, how it would violate the rule and what he has to say about it. They just pass along the allegations with a letter requiring a response within a short time frame.
It would be fascinating to figure out a politically correct response to an allegation of socio-economic discrimination. Even more so should that be in the context of a 2255. The possibilities are endless.
You write: “It would be fascinating to figure out a politically correct response to an allegation of socio-economic discrimination.”
How about this: “If you can’t afford justice, you don’t deserve it!”
All the best.
Of course they deserve it. Just not necessarily from me.
You are a veritable font of practical, actionable advice!
ABA has spewed a whole host of lies (not merely “a lie”) in support of this stupidity. National Lawyers Association also released a white paper analysis concluding it is unconstitutional.
One day at a time.
It is also apparent from the dialogue put out by proponents that the “reasonably should know” is going to incorporate every batshit “microagression” theory as it develops. Hence, lawyers “reasonably should know” all the current catalog of identified microagressions, as well as any as to which they have been placed on notice by employees, potential employees, court staff, colleagues, clients, the caterers at bar functions, etc. “Pronouns of choice” are part of this, carrying with them the obligation to discipline any employee in your office who doesn’t buy into all this. It is completely insane, and Linda Klein’s better judgment has obviously been suppressed by the “over 400,000” voices in her head, which she has apparently mistaken for “ABA members” (or maybe they are ABA members, but most of us can’t see them).
Are you micro-aggressing against the psychologically impaired?
I suppose I regard them “unfairly,” to the extent I don’t believe we should be ruled by them.
They’re going to try and pass this rule in the state Randazza practices in? Oh, this should be entertaining
It’s not entirely clear that Randazza’s mad voodoo skillz work that way. Best you wait on popping the corn.
Terrible problems amongst failures..
P.S. Jerry grins, does not have “aproval”. fuck that man with a grin. unplug,
There is no rewind!
SJWs always lie.
“To help poor children, I am going to launch
flaming accordions into the Grand Canyon.”
“Why do you hate poor children?” — Burge
No, SJWs don’t always lie, but that was a fun example so it’s worth the hyberbole.
I might have asked a different girl, Flora Darpino. Lieutenant General Flora Darpino, the top lawyer in the Army. (Not as impressive as a Nebraska Admiral, to be sure.)
Then you should ask General Darpino. Let us know what she says. We’ll be fascinated, as usual.