Someone screwed with Jessica Schulberg’s head.

[T]he legal profession is one of the few that requires members to uphold a certain moral standard.

This is true, as lawyers are required to be of “good moral character” to be admitted to the bar. But what this means is easily misunderstood by people who conflate their politics with morality.  For Schulberg, morality is progressive politics, as her Huffington Post article makes clear that being on the “right” side of politics is immoral.

I first started tracking white supremacist and Nazi lawyers after I received a phone call from Mark Zaid, a lawyer and a source of mine in Washington. In the aftermath of the Charlottesville rally, Zaid, like many other Americans, was grappling with how to confront the far-right extremists who proudly gathered there, seemingly without fear of consequences.

Perhaps there was a better way to hold some white supremacists accountable, Zaid mused. Being a lawyer, he noted, is different from most jobs.

From here, she veered off the rails. After passing the bar exam and the multi-state professional responsibility exam, lawyers must go through the Committee on Character and Fitness.*

After graduating from law school and passing the bar exam, aspiring attorneys face a character and fitness test before they can be admitted to their state’s bar and practice law. Lawyers can — in theory — get kicked out of the profession at any time for failing to uphold their state bar association’s ethics rules.

The initial character and fitness test is generally treated as a formality, the requirements vary by state, and enforcement can seem ad hoc. But there are individuals who fail. People have been denied bar admission because of a past gambling problem, delinquent debt, a substance abuse issue or dishonesty.

The expectation is that applicants for the bar will be honest and ethical, will not be of a criminal bent or violate their duty to their clients. It was always characterized in terms of morality, as the foremost reason to deny a person admission to the bar was conviction for a crime of moral turpitude. Lying. Cheating. Stealing. Revealing that you were not a person of integrity, worthy of trust.

But that word, morality, has shifted to include holding only beliefs that some deem proper. Or more to the point, not holding beliefs that some deem immoral.

Defining moral character is an admittedly subjective endeavor — but marching with neo-Nazis would seem to signal character flaws.

Is it a character flaw to hold beliefs that are repugnant to some? Well, to the “some” to whom the beliefs are repugnant, sure.

Although being an avowed racist doesn’t explicitly violate the rules that govern lawyers’ conduct, it can be a problem, said Keith Swisher, a legal ethics professor at the University of Arizona’s law school.

“If a lawyer is truly racist, that presents questions as to whether that lawyer can competently and diligently and fairly represent all clients,” he argued.

That might strike one as true at first blush, but it’s a red herring. Lawyers are not obligated to represent “all clients,” but provide competent, diligent representation to those clients they do represent. If child rapists aren’t your thing, you don’t have to take them on as clients. If a white supremacist is charged with a crime, he’s entitled to an attorney too, but you don’t have to take him on as a client either if he’s not your thing.

And finally, Schulberg gets around to full, open conflation.

In practice, it’s almost unheard of for aspiring lawyers to be denied admission to the bar because of their ideology or for existing lawyers to be punished for expressing their views.

This, she posits, is what’s wrong. Lawyers should be subject to an ideological purity test under the “morality clause” to rid the bar of white supremacists. And the ABA, with its enactment of Rule 8.4(g), seems to be right on board.

There is some indication that the American Bar Association wants to take on racist lawyers. The ABA adopted a model rule last year stating that 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, religion or ethnicity, among other things. The rule applies to all “conduct related to the practice of law,” not just an attorney’s interaction with a client or behavior in court.

Eugene Volokh called this a lawyer speech code. It was adopted in Vermont, rejected elsewhere. They tried to slip it into Nevada with lies, but it was killed when the court learned of the duplicity. Even people who have been targeted by a white supremacist with (empty) threats of violence see the problem.

The anti-discrimination rules proposed by the ABA, however well-intentioned, could be used to similarly exclude members of marginalized groups, argued Kenneth White, a lawyer who runs the legal blog Popehat.

Earlier this year, White and a security researcher named Asher Langton both filed complaints with the State Bar of Texas against Jason Van Dyke, a lawyer who is a member of a racist, thuggish group called the Proud Boys, for making violent threats against them.

The complaint wasn’t because of Van Dyke’s repugnant views, but because of what he did.

“I don’t think it should be the state bar’s job to police people for being racists or other assholes,” White told HuffPost. “If white supremacists are doing objectionable stuff, you should be able to find them in violation of the rules [of professional conduct],” he argued.

And Ken states the obvious when ideological litmus tests are substituted for morality.

“We might like it when it’s used against racists, but who knows how it will be used otherwise?” White said. “I don’t think it’s a hypothetical or slippery slope to think it might be used badly by state bars.”

Not only isn’t it hypothetical, but it’s happening. Charles Murray. Christina Hoff Sommers. Jordan Peterson. Then there’s Laura Kipnis and Bret Weinstein. Even Alan Dershowitz, for crying out loud. Not even remotely white supremacists, but hated by progressive ideologues for holding views, or falsely attributed views, outside their orthodoxy. Even if only by the thinnest of hairs.

“You know what? Maybe people have controversial views going on inside their head, but let’s judge them by their actions,” Allen said.

To the extent ideology connects to conduct that is against the law, engages or promotes acts of violence, against others, they have no place in the bar. But it’s their actions that reflect unfitness, not their thoughts. Even assuming that Ken is wrong, and there will never come a time when white supremacists, unlike communists and gays, are deemed to hold acceptable beliefs, the ideological condemnation of anyone even slightly to the right of the most ideologically pure progressive is a racist. If they deserve to be burned at the stake, they surely don’t deserve to be a lawyer.

By expanding the word “morality” to encompass political ideology, making it yet another word whose meaning is lost to the lexicon, the creation of a political purity test for admission to the bar seems too easy, almost natural. Lawyers should be people of good moral character. They should not, and need not, be beholden to the approval of progressive ideology. That would be immoral.

*State admissions vary. Your state’s requirements may vary. That’s incredibly cool for you, but irrelevant for this post. Don’t overshare.