When I first saw the video, I assumed the guy was a tourist, as it seemed unfathomable that any New Yorker could say something so utterly idiotic and outrageous. Not only was I wrong about that, but it got worse. He was a New Yorker. He was Jewish. He was a lawyer.

Naturally, this led to the first shrew calling for his lawyer-head. But hardly the last.

A recording of the exchange promptly went viral earlier this week, and the Intercept’s Shaun King soon identified Schlossberg as the xenophobe in the video. Then, on Thursday, two government officials took action: Democratic Rep. Adriano Espaillat of New York and Democratic Bronx borough president Ruben Diaz Jr. filed a formal complaint against Schlossberg with the discipline committee of the New York State Unified Court System. Their grievance asks the committee “to affirm that such misconduct and behavior will not, and must never be tolerated.” Although the letter does not request a specific action against Schlossberg, Diaz told the Washington Post that he wants the attorney to be disciplined, suspended, or disbarred.

It should surprise no one that a couple of politicians saw the pandering opportunity and jumped on it. Their letter was sent to the First Department disciplinary committee, but was written for public consumption. Fair enough. That’s what politicians do.

But it also serves to make the public believe that if a person is a lawyer, then whatever they do gives rise to a bar complaint, because, you know, reasons. To his credit, as there can be no doubt that Michael Joseph Stern found Schlossberg’s conduct so horrifying that it deserved severe consequences, he not only explained that it is extremely unlikely to result in discipline, but it should not.

That almost certainly will not happen. Yes, Schlossberg’s conduct was reprehensible. He deserves all the disdain that he has received. But state attorney discipline committees do not, and should not, have general authority to punish lawyers for their nasty (but non-criminal) behavior outside of the law.

As Stern correctly notes, not everything a person who happens to be admitted to practice law does constitutes grounds for discipline.

Notably, Espaillat and Diaz’s letter does not cite the specific provision of New York’s Rules of Professional Conduct that they believe he violated. That’s because there probably isn’t one.

That leaves a catch-all clause that prohibits attorneys from engaging in “any … conduct that adversely reflects on the lawyer’s fitness as a lawyer.” This rule was not designed to capture racist rants in public—it is more commonly used to sanction attorneys who bring ill repute to the court system and the practice of law. Had Schlossberg invoked his law firm in order to intimidate the Fresh Kitchen employees, the discipline committee might have a case. His diatribe alone, though, likely does not violate this rule.

This explanation is both unsatisfying and too vague to explain why this conduct fails as a vehicle for discipline. Certainly someone who engages in a racist* rant is unfit to practice law, right? RIGHT?!? And, indeed, the spectacular lack of judgment, as well as bizarrely unwarranted fury, raises some very real questions as to whether this is a guy who should be a lawyer.

But that’s not the nature of the prohibition, its verbiage notwithstanding. Rather, it is directed to conduct that has a direct nexus to the practice of law. Stern brings up whether he had invoked his law firm as a possible basis for discipline. It’s unlikely that would have been sufficient. This didn’t occur in court, in the course of legal representation, in the performance of his duties as a lawyer. There was no connection between the practice of law and what he did beyond his status of being a lawyer. Absent the connection, the Code of Conduct doesn’t apply.

That may be for the best. Plenty of state bars have a broad rule like this one, but their discipline committees are hesitant to use them against lawyers who are jerks in public. That’s for good reason: The prohibition uses a subject[ive] standard that could be used to chill speech protected by the First Amendment. State bars tend to be relatively equitable arbiters, but allowing these agencies to enforce a mandatory speech code for lawyers would surely be unwise.

This is where the issue crosses paths with the broader concern, the one raised by the ABA’s model rule 8.4(g), which its social justice lawyers in control enacted to take lawyers to task for their speech and thought with only the most tangential connection to the practice of law. The insipid argument was that lawyers should be leaders in the fight for equality. Unspoken is the tacit threat that they should be disbarred if they’re not. Tolerance is a bitch.

Even if New York embraced the model rule, which it has not, it’s doubtful it would apply for the same reason that the generic “fitness” rule doesn’t. It has nothing to do with the practice of law. But proponents aren’t particularly interested in free speech, already denigrated as a “dog whistle of the alt-right” despite it being in the Bill of Rights, and unlikely to care that it wouldn’t have resulted in Schlossberg being subject to discipline regardless.

Stern raises the low-hanging fruit argument that if angry prejudicial rants subjected a lawyer to discipline, it would be used to silence the woke as well as the racist. That law and rules are turned against their supposed beneficial purpose, despite logical inconsistencies, has been proven too conclusively to be worthy of debate, the last time being the Protect and Serve Act.

Unlike the scolds, who deign themselves sufficiently pure and correct that they should be the universal arbiters of righteousness, I make no such claim. People, even lawyers, hold the views they believe and no matter how wrong I think they are, it’s not up to me to punish them for WrongThink. And yet, I harbor the “secret” wish that lawyers were smarter than this, better than this, less hateful than this. But they’re not. Yet, the fault has nothing to do with their profession, but with themselves.

*There is a question of whether this was racist or something else. It’s a pedantic question I leave to others, elsewhere. It was reprehensible, whether characterized as racist or xenophobic or something else.