The ABA Fights For Its Irrelevance

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.

The Crusade against Model Rule 8.4(g)

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.

45 thoughts on “The ABA Fights For Its Irrelevance

  1. wilbur

    I had a brother-in-law who played in the American Basketball Association for several years. It went out of business in 1976, merging with the NBA. That ABA offers more relevance to me today than the present-day American Bar Association.

    I find it amusing that Mr. Rendleman labels others as “zealots”. Pot meet kettle.

    Reply
    1. SHG Post author

      When people like Rendleman see lawyers rejecting en masse their ideas, there can only be one reason, since they’re righteous and anyone who fails to see it is evil and wrong. So the evil people must be evil zealots, as there’s nothing else they could possibly be.

      Reply
      1. B. McLeod

        Exactly. Because the few lawyers remaining in ABA Just couldn’t be a fanatical, minority splinter group of pompous, hypocritical virtue-signalers, completely out of touch with the profession. They just couldn’t be.

        Reply
  2. Patrick Maupin

    A “how-to” blog post on legal and appropriate harrassment would be nice. Bonus points and I might even hit the tip jar if you explain about wanted harrassment.

    Reply
      1. B. McLeod

        A huge point, and the reason why neither PA nor CA adopted the proposed rule. The ABA sponsors knew that the proposed rule extended to a plethora of conduct not regulated by existing law, and they deliberately refused to back off that aspect of it, even after multiple ABA sections pointed out that it was unconstitutionally vague. They deserved to be slapped down by the practicing bar, and they have been slapped down by the practicing bar. But that won’t prevent them pressing on to the next bit of idiocy.

        Reply
            1. B. McLeod

              ABA Journal ran an article trumpeting the CA rule as a substantial adoption of 8.4(g), but it was not. ABA’s tracking list of adopting jurisdictions recognizes that CA did not adopt it.

  3. Nigel Declan

    Mr. Rendleman seems to be vying to be the “woke” counterpart to Jack Marshall. Still wrong on ethics, but differently so.

    Reply
    1. SHG Post author

      In fairness, Marshall is a lying sack of shit, so much as Rendleman may be blind, it’s unclear that he’s dishonest, putting him a few giant steps above Marshall.

      Reply
  4. Jim Tyre

    First, lawyers have a bit of knowledge about the First Amendment, because it’s kind of a law thing,

    You may be surprised how many don’t. No, you wouldn’t be.

    Forty-nine of 50 states have refused to adopt this rule.

    Sorry to be picky, but words matter. 49 haven’t adopted the thing, but that’s quite different than saying 49 have refused to adopt it.

    Reply
    1. SHG Post author

      Meh. If they know about it (and they all know about it) and have not adopted it (and 49 have not adopted it), it’s fair to say they have refused to adopt it. Remember,

      You can choose a ready guide
      In some celestial voice
      If you choose not to decide
      You still have made a choice

      Reply
  5. Bruce Woodrow

    The Law Society of Ontario now requires that we tick a box on our Annual Report that we have developed a Statement of Principles regarding Equality, Diversity and Inclusion. The introduction of the requirement (2017) generated concerns about how such principles might conflict with the duty to resolutely represent our clients.

    More recently there has been speculation whether the LSO could discipline an academic for “uncongenial” comments that were protected by academic freedom but did not promote equality, diversity and inclusion. If you are interested in the Canadian (at least Ontario) version of the issue, I recommend [Ed. Note: Deleted because rules, and who gives a shit.]

    Reply
    1. SHG Post author

      It’s too bad you can’t join a section without joining the ABA. Although in crim law, the ABA has never offered anything worthwhile.

      Reply
  6. Norahc

    “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.”

    That’s easy….all of them. Your posts advocate for hard things like thinking and being responsible for your actions.

    Reply
  7. AYY

    “Woke” clients often want the firms they hire to have a certain amount of minority or female participation. So does the rule mean that the firm’s general counsel the big firm’s partner who accedes to the request ends up in state bar court? That strikes me as a better argument in favor of the rule than what Mr. Rendelman argues.

    Reply
    1. SHG Post author

      This was discussed the other day. If the rule was applied faithfully, it would violate the rule to demand participation based on race or gender, but then that’s not at all what the rule is about. On the flip side, if minority and female participation evolves because client’s want it, then there’s no need for a rule to accomplish what would happen on its own.

      Reply
      1. B. McLeod

        In a recent story about the current NALP report, ABA Journal noted how all that is going. As I recall the big picture, there was backsliding on employment of black attorneys, slight progress on employment of female attorneys and the main gains were on LGBT hiring (which is, of course, the current fad du jour).

        Reply
  8. RedditLaw

    Okay, Mr. Greenfield, that author says that you can either be a beady-eyed, snake-wrasslin’, religious bigot who wants to take medicine for AIDS from dying gay men when you’re not too busy impregnating your wife in the back of the shack for the tenth time . . .

    OR

    you can be frizzy-haired, pullover-sweater-wearing, arch-libertarian bastard, who hits people over the head with a hardcover copy of Atlas Shrugged when you’re not handing out crack cocaine to pre-teens because it should be legal or engaged in sniper practice at homeless bums at the Port Authority Bus Terminal in order to help the private sector clean up New York.

    So, which are we talking about here?

    Reply
      1. RedditLaw

        I honestly hadn’t encountered hair texture as an anti-semitic trope before. I’ll have to add it to the list. The actual reference was to the lack of personal grooming from having your head constantly in books.

        If I start going off on rants about helicopters and fiat currency, please pre-emptively trash my comments.

        Reply
        1. RedditLaw

          I have a confession, though. Back at the big university, I used to grab as many coconut macaroons as I could while going through the dining hall line during Passover. Does that make me an anti-Semite? They were very tasty! Passover still makes me think of coconuts.

          Reply
        1. Rojas

          Credit goes to Dapper Dan for having teed it up.
          Ray doesn’t get much credit for it but he’s one of several eclectic musicians from that period who created a lasting détente between the rednecks and the hippies. These days he’s still popular with a very diverse group. Crowds consist of young millennials to some of the meanest father rapers of them all.

          He’s generally considered a national treasure here in the republic. Some probably consider it a misplaced source of pride but it warms ours hearts to know that for fifty years every graduating class to leave the cow colleges know all the words to Redneck Mother and will belt it out at the drop of a hat.

          Obligatory law content:
          *RWH quote from Texas Monthly January 2010.

          “It was a strange time, because it was the only thing I was known for, and then the Twinkies album came out and we couldn’t really tour to support it. I remember asking my attorney what I could do about how the label had treated it, and he said, “Well, I suggest you start drinking, ’cause there’s nothin’ you can do.” So I did, for about the next twenty years.”

          Reply
  9. Robert D Schmidt

    California has always made it’s own rules and new Rule 8.4.1 gives the State Bar primary jurisdiction over such claims including claims of employment discrimination and the like. While it may not have technically adopted the ABA rule, CRPC. Rule 8.4.1 is seemingly even more onerous.

    Reply

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