Scandal-plagued and bankrupt is no way to go through life, but it’s apparently not enough to compel a sober view of why the American Bar Association has become irrelevant to the legal profession. So naturally, the ABA doubled down on its Model Rule 8.4(g) bet in a remarkably tone-deaf post by its “ethics counsel,” Dennis Rendleman.
That it would begin by calling it a “crusade” sets the tone. Apparently, the oppressed ABA has been victimized by crusaders. Lawyers and judges, the big machers of the bar, have been mislead, deceived, snookered, by these crusaders who have made it their zealous duty to undermine the ABA’s good works for social justice.
Vermont is the only state that has adopted the rule; several states have either formally or informally declined to adopt or consider adoption. At the same time, more than 25 jurisdictions already had provisions in their Rules of Professional Conduct making it an ethical violation for a lawyer to discriminate or harass another.
That Vermont, alone, is the only state to have adopted the rule might be taken as a warning to the ABA that lawyers across the country have rejected its rule. “Several” have explicitly rejected it, calling it unconstitutional, while others have rejected it without further comment. That “25 jurisdictions” have rules that aren’t 8.4(g) seems to fly over Rendlemen’s head. It’s not that lawyers think it’s cool to discriminate or harass. It’s that the ABA’s rule is bad, wrong and grossly misguided. They hate discrimination. They hate your rule more.
In an odd way, Rendlemen’s lament over why everybody thinks this rule is crap reflects a bit of the larger societal debate over social justice. Unlike the way lawyers look at a problem, detached and grounded in reality, Rendlemen hides his head in his feelings and tries to come up with strawman arguments to fight. He’ll convince no one who isn’t already on his team and reduce himself to a joke to the vast majority of lawyers.
One can discern two general themes in opposition to Rule 8.4(g). First, are the opponents who object on the grounds of “religious liberty.” However, the evidence indicates that the primary philosophy underlying that opposition is objection to legal equality for LGBTQ. Second is the academic/libertarian opposition that appears more oriented from legal scholarship or political philosophy than from religious zealotry.
The myopia of the SJW is magical, reducing their enemies to evil caricatures, religious zealots and (ugh) libertarians. Who knew that there were so many of them in the legal profession that it left the ABA with about twelve dues-paying members?
While there is no doubt some who are “religious zealot” lawyers and “academic/libertarians,” which I suspect refers to Josh Blackman, who find the rule reprehensible, Rendleman fails to see that the vast majority of lawyers isn’t interested in the ABA imposing an overarching speech code on the profession so we conduct ourselves in accordance with the most passionate feelings of the woke as to what words we might utter, what viewpoints we might hold, and still keep our license.
The libertarian/academic argues the Rule is unconstitutional because “[l]awyers do not surrender their First Amendment rights for the privilege of practicing law.”[v] Lawyers do, indeed, agree to limit the exercise of some First Amendment rights for the privilege of practicing law. Recently amended Model Rules 7.1, 7.2 and 7.3 restrict the First Amendment commercial speech of lawyers in ways that non-lawyers are not limited. Model Rule 5.4(b) limits a lawyer’s right of association. Model Rule 3.6 limits the ability of a lawyer to speak publicly about a matter. These are just a few examples of restrictions on a lawyer’s First Amendment “rights” when practicing law.
If this argument was made by a second year law student, he would fail the test. First, lawyers have a bit of knowledge about the First Amendment, because it’s kind of a law thing, this Constitution of ours. It’s not a libertarian thing. It’s not an academic thing. It’s law. Who does Rendleman think he’s pitching?
Second, it’s correct that by joining the profession, we agree to limit our commercial speech, that we agree not to deceive people to earn a buck. The folks who sell laundry detergent can put “new and improved” on the box. We can’t. This is a concrete rule that directly implicates our selling of our legal services.
We also agree not to form legal partnerships with non-lawyers, an associational limit that non-lawyers don’t share. Again, concrete and directly related to the practice of law. And we’re restricted as to our extrajudicial statements on our cases that would have a “substantial likelihood of materially prejudicing” the outcome. Concrete and direct. See a trend here?
When we come to the ABA’s current lament, against the crusade for the Constitution against the sad tears of the oppressed, the restrictions are of thought and speech, that any lawyer who doesn’t conduct himself in accordance with the best dictates of social justice is unethical.
Drafters of Model Rule 8.4(g) heard from female lawyers who represent other women lawyers in harassment and discrimination complaints against their employers. Time after time, the ABA was told of illegal and inappropriate harassment taking place at firm outings, dinners and bar association events—and this was long before Time magazine named as Person of the Year 2017 “The Silence Breakers,” women (and men) who spoke out about sexual harassment and named names. Therefore, drafters of Rule 8.4(g) included these events as part of the definition of “conduct related to the practice of law.”
This conflation of two wholly unrelated things reflects the ABA’s outrageously misguided grasp of its role. There is sexual discrimination and harassment in society, and society includes all occupations, all professions, including law. So make it an ethical violation for lawyers, and use the clout of licensure to not only address societal problems, wholly unrelated to the practice of law per se, but go miles farther by not only precluding “illegal” conduct but “inappropriate harassment.” See how he slipped that utterly meaningless phrase in?
Second, contrary to one professor’s argument in opposition to Rule 8.4(g), there is no legal cause of action for harassment based upon the speech of “one-to-many.” This commenter has speculated that there have been cases in criminal harassment law that have expanded from comments specifically to a person to speech about a person. While the professor argues that such an expansion is unconstitutional, he proclaims that Rule 8.4(g) is such an unconstitutional “one-to-many” harassment rule.
Reading Rule 8.4(g) in this way, the scholar argues that a lawyer speaking at a CLE or another lawyer gathering could violate the rule if someone—anyone—in an audience feels discriminated against or harassed by the lawyer’s statement.
Rendelman uses a 2013 law review article by Eugene Volokh, ignoring the plethora of criticisms directed specifically at Rule 8.4(g). But Eugene’s point touches upon one (but only one) of the many grave failings of the ABA’s inquisitors, that they would make every lawyer subject to the feelings of the most delicate sensibilities of anyone in earshot. I can’t even imagine how many posts here would fail to meet Rendleman’s test of political correctness for failing to spew the social justice view of life.
The message from the profession might seem abundantly clear to anyone who took a cold, hard look at reality, as a lawyer should. Forty-nine of 50 states have refused to adopt this rule. The vast majority of lawyers want nothing to do with the ABA. Rather than return to its purpose, the profession of law, the ABA and its Rendlemans have chosen to call the profession’s disdain for its social justice agenda a “crusade.” So be it. Enjoy your holy land all by yourselves, kids, but you are no longer relevant to the legal profession. No one killed you. You committed suicide.