Short Take: The Wrinkly World of Stephen Gillers

The floundering social justice organization known as the ABA, desperate to pretend that its model ethical rule 8.4(g) has been adopted by a state other than Vermont, writes that a second state, Maine, has adopted it after all those others rejected it. And except for the details that Maine substantially changed it so as to eliminate the ABA’s unduly passionate excesses that have driven away members in droves, it’s almost true.

But to its rescue appears NYU Law’s ethical maven, Stephen Gillers, who offers this deeply considered and heavily cited view:

The preposterous claim that the First Amendment entitles lawyers to make racist, sexist and homophobic statements in connection with law practice is an embarrassment.

What constitutes “racist, sexist and homophobic statements”? Who would ask such a “preposterous” question? Gillers provides as answer in the same email, which was sent to Bloomberg law and only partially quoted by the ABA Journal.

It has come almost exclusively from white men who apparently see some advantage in being able to do so. No case supports it.

By “some advantage,” does he mean respect for the Constitution, the First Amendment, the Free Speech Clause, the entirety of free speech jurisprudence which entirely supports it? Why are white men so awful? Oh wait. Might that be a bit racist? A tad sexist? If Gillers was a younger self-loathing white man, there might be some irony to be found in his assertion. But Gillers has been spewing nonsense like this for as long as I can remember.

The wrinkly reaction is that anyone challenging Gillers’ screed must want the right to be racist, sexist and homophobic, since why else would they question an ethics rule of goodness? Then again, it might have much to do with the imposition of a speech code of general application, and without any particular nexus to the practice of law, as the Constitution would require under even the low rational basis test.

Seeking admission to the bar is not acquiescence in whatever trendy social justice demand pops into a woke head. If the oppressed came up with the idea that privileged white male lawyers should walk two steps behind oppressed black female lawyers in reparations for their history of colonizing the courthouse, would that turn Gillers’ frown upside down?

It’s hysterical enough that there are hourly calls for another word to be stricken from the record because somebody was offended by its homophonic connection to a word that sounds vaguely similar to one uttered by Robert E. Lee, but to demand disbarment because it’s uttered by a lawyer seems a bit severe for anyone not named Gillers. There may even be non-white non-men who kinda like the possibility that they won’t be disbarred for stepping into the minefield of the moment’s social justice horribleness.

More to the point, what of the devout Catholic? What of the attorney retained to argue the impropriety of Title VII or IX excesses undermining the due process of male, even if they aren’t as pale as Gillers imagines? And then there’s the general prohibition against telling jokes at bar association cocktail hours lest anyone feel offended by being excluded from the “three people walked into a bar” opening.

The problems with Rule 8.4(g) are legion, even if Gillers’ galaxy brain fails to perceive any justification beyond white men loving them some racism.

“Rule 8.4(g) is well-intentioned, but it has the potential to suppress attorney speech on matters of public concern, if that speech may be viewed as ‘demeaning’ to others,” Josh Blackman, a professor of constitutional law at the South Texas College of Law in Houston, said in an email. “The government should not chill attorneys from talking about these important matters.”

Josh takes the serious path, as well he should given that this is about law and law is very serious stuff. I, on the other hand, take the path less traveled by arguing that the random imposition of politically correct speech that bears no particular relation to the practice of law but is just what passionate social justice climbers feel is the way “decent” people should behave, goes a few tokes over the line.

Being a lawyer requires many things, from knowledge to integrity to the willingness to sacrifice personal self-interest for the sake of one’s client. What it does not, and should not, require is that one’s thoughts and words be subject to the approval of the social justice scolds. Gillers can iron out his fragility issues with white men elsewhere, even if he’s begging for a grievance by his failure to include transphobia in his tirade.

12 thoughts on “Short Take: The Wrinkly World of Stephen Gillers

  1. wilbur

    I wonder if Professor Blackman truly believes the rule is “well-intentioned”, or is our friend Gertrude making an appearance.

    The root of “preposterous” is interesting. There is no recognized English word “preposter”. It comes from the Latin root “prae” or “before” and “poster” or “after”, meaning something which is both before and after.

    Reply
    1. SHG Post author

      I can’t speak for Josh, but there could well be a bit of the ol’ Gertrude in there, to blunt the retort that only racist would oppose prohibition of racist speech, white man.

      Reply
  2. B. McLeod

    It is actually remarkable that Gillers completely omitted consideration of [Ed Note] concerns from his tirade. It was clear from the beginning of the Rule 8.4(g) discussion that a central purpose of the proposal was to compel the world of practicing lawyers to recognize subjective gender identity as controlling, and to adopt and use “pronouns of choice” upon demand. Gillers might be better able to see the First Amendment issue if ABA had chosen the other side of that issue and proposed a rule prohibiting lawyers from using the “live names” of [Ed. Notes] or their “pronouns of choice.”

    It is also quite amusing that he pooh-poohs the pieces Maine refused, explaining that the Maine version will still secure the central purposes of proposed 8.4(g). This stands in stark contrast to the statements originally urged by the rule’s fanatical ABA supporters, who refused to remove bar association and other social activities from the reach of proposed Rule 8.4(g) because the rule couldn’t possibly secure its central purposes if it did not extend to the entire universe of lawyers’ social activities. It couldn’t possibly, but now (according to Gillers, at least) it can. Somehow, the near total rejection of the proposed rule has mysteriously empowered lesser alternatives.

    Reply
      1. B. McLeod

        I thought I could safely use the ones you had vetted, but now I am sensing you may not have checked either. Drat! This is part of the problem — everyone just ASSUMES someone else had the issue covered.

        Reply
        1. Dan

          Even assuming SHG had vetted the pronouns xe used, why would you expect those pronouns to still be appropriate a couple of hours later?

          Reply
          1. B. McLeod

            Well, there is that. Things change by the day. For example, the recent adoption by the Catholic Church of the position that gender identity is not subjectively determined. So, now there is a major world religion diametrically opposed to ABA’s position that gender identity is subjectively controlled. Suddenly, ABA’s proposed rule is sailing into the teeth of yet another cyclone, because the operation of the rule would force Catholics in law firms to speak and act as though they believe a premise that is directly contrary to their religious faith. The impairment of first amendment religious freedoms and the blatant first amendment compelled speech issue with imposed “pronouns of choice” are growing ever more starkly apparent.

            Reply

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