In the aftermath of a disappointing outcome, a Harvard Law grad turned marketeer created a Facebook group for disaffected lawyers. The groups was named, unironically, Lawyers of the Left. Brian Tannebaum shared their sentiments, and tried to share a zombie post. It was “moderated” into oblivion, censored for not meeting “community standards,” causing Brian to walk away with a parting thought.
Some complained about the group’s name, because they didn’t view themselves as being “of the left,” but rather mainstream believers in the righteousness of social justice. They saw nothing peculiar about one of the group’s first acts being censorship. Silencing people is a fixture of those who rely solely on vague feelings, shared among others who have similar feelings, but can’t put them into rational words. If they have no meaningful words, neither will anyone else to drag them down from their perch of righteousness with the tyranny of reason.
While real lawyers were busy representing clients, passionate lawyers were reinventing legal ethics at the American Bar Association meeting last September to create their own, private Utopia, because lawyers should be leaders in social justice. The rule, which extended basic discrimination law into heretofore virgin territories, unanimously passed.
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.
Outgoing ABA President Paulette Brown was flush with pride over her legacy.
“The current Model Rules of Professional Conduct (the “Model Rules”), however, do not yet reflect the monumental achievements that have been accomplished to protect clients and the public against harassment and intimidation. The association should now correct this omission. It is in the public’s interest. It is in the profession’s interest. It makes it clear that discrimination, harassment, bias and prejudice do not belong in conduct related to the practice of law.”
Sweet words are not the same as meaningful words. Noble, if capricious, ideals bearing no particular nexus to law became the weapon of punishing lawyers whose viewpoints, words, failed to pass muster with the Lawyers of the Left. No one knows what these words mean. I know, you are certain you do, but that’s only because you are swept up in the feelings of the “monumental achievement” of your political revolution.
We don’t know what words can be uttered, or where we can utter them. We don’t know what views are allowed and what will cost us our license, or our clients their freedom. You don’t care because prejudice is wrong, and doesn’t that matter more than, well, anything?
Judge Richard Kopf raised the implications for a judge, as it’s left to the court, inside the courtroom, to make good on ethics.
A new paragraph  of the Comment stating that “A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule” was also added. Having dived down the social justice rabbit hole, the ABA engages in the ultimate in Gertruding with this “not alone” non-exemption.
Finally, we should also be “comforted” that the Rule applies almost EVERYWHERE and almost to EVERYTHING lawyers do.. As the new Comment  explains:
“Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”
But judge, he said “girl”* during cocktails after the meeting, and that made me terrified. Sure, it wasn’t directed at me, but he said it, I heard it, and I was literally shaking. Throw that jerk off the case, impose sanctions, strike his papers. Don’t make me suffer the hostile environment of the courtroom having to face that monster at the next table!!! You must, judge, because Rule 8.4(g) says so. And perhaps it does.
Doesn’t this constitute flagrant viewpoint discrimination, censorship, in violation of reason and the First Amendment? Well, of course, if you’re the sort of hateful person who cares more about logic than eradicating prejudice at all costs. But as Josh Blackman explains, Lawprofs of the Left, from the long-suffering Deborah Rhode to the lawyer-loathing Stephen Gillers, are here to soothe your savage breast. First Rhode:
I teach legal ethics and from what I know about bar disciplinary agencies, they don’t have enough resources to go after people who steal from their client trust fund accounts. The notion that they are going to start policing social conferences and go after people who make claims about their own views about the religious status of sexual orientation [sic] seems to me wildly out of touch with the realities. Bar associations don’t want to set off their members and go down those routes and many people who are in bar disciplinary agencies care a lot about First Amendment values. Sure, someone might file a complaint. But, we can say that about pretty much anything in this country, right? That’s not enough to deter us from taking appropriate actions. My own view on 8.4 it is that is a largely symbolic gesture. It doesn’t get at much that you couldn’t have gotten at other ways, through employment, through curbs on civility. But I think the reason why proponents wanted it in the Code was as a matter of educating the next generation of lawyers as well as a few practitioners in this one about other values besides First Amendment expression. We as a profession have the capacity to deal with occasional abuses, I’m not sure this Rule is going to spark a lot of them. We’re a profession that knows better than that. I would hope.
Don’t lawyers have more important values than the Constitution? Then Gillers:
We can be confident that the kind of biased or harassing speech that will attract the attention of disciplinary counsel will not enjoy First Amendment protection.
Or as Josh puts it:
In other words, trust the bar and the courts to ensure speech is protected.
No prosecutor would ever abuse vague laws to get some unpopular person. No bar counsel would use vague disciplinary rules to rid the profession of a lawyer who isn’t of the left. No lawprof, no judge, no lawyer would ever be punished, sanctioned, disciplined, chilled, fearful of the cries of the deeply offended, because we can “trust the prosecutor” to never use Model Rule 8.4(g) for any purpose but to silence the most horrifying speech.
Like Brian Tannebaum’s. And really, aren’t the values of social justice more important than the Constitution anyway? That’s why it’s critical to re-educate lawyers, judges, lawprofs to understand that they fail to embrace these values at their peril, because if and when (and there will most assuredly be a when, because Al Capone) they are punished, they will certainly deserve it for their hatefulness. What could possibly go wrong?
*Is this a violation of Model Rule 8.4(g)? You bet your sweet ass it is.