ABA Doubles Down With Model Rule 8.5

They were so enthralled that you would have thought the ABA added ten new paying members, but it was only that a second state adopted the ABA’s social justice Model Rule 8.4(g).

Maine is the second state to adopt Rule 8.4(g) of the ABA Model Rules of Professional Conduct, according to Bloomberg Law. Vermont was the first.

Maine’s Supreme Judicial Court adopted the new rule, which takes effect June 1. It differs slightly from the ABA model rule, according to Bloomberg Law.

“Slightly” does a lot of work here, as the word “significantly” must have had more letters than the ABA could afford. There is a reason the rule has been shunned and rejected, so naturally the brave scolds of the ABA learned their lesson, right?

In 2016, the ABA took another important step in the ongoing battle to eliminate discrimination and promote diversity in the legal profession. It amended its Model Rules of Professional Conduct to declare discrimination professional misconduct, and it adopted a resolution intended to promote diversity in the legal profession.

For the sake of the unwashed, the ABA, riding on its legacy relevance, provides “model rules” in the hope that states, who have actual authority over the practice of law, will adopt them. The ABA is merely a club that lawyers can choose to join if they have too much money or a firm (or government) willing to pay dues to pretend it makes them seem involved, like it mattered in the old days when lawyers cared about the ABA. And when the ABA cared about lawyers.

It is now time to take the next step and recognize a lawyer’s affirmative obligation to promote diversity in the profession and equality in society by adopting a new Rule 8.5, as follows:

As a learned member of society with an ethical obligation to promote the ideal of equality for all members of society, every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession. Every lawyer should aspire to devote at least 20 hours per year to efforts to eliminate bias and promote equality, diversity and inclusion in the legal profession. Examples of such efforts include but are not limited to: adopting measures to promote the identification, hiring and advancement of diverse lawyers and legal professionals; attending CLE and non-CLE programs concerning issues of discrimination, explicit and implicit bias, and diversity; and active participation in and financial support of organizations and associations dedicated to remedying bias and promoting equality, diversity and inclusion in the profession.

On top of trying to make it an ethical duty of lawyers to believe in social justice, this new model rule would impose a duty on lawyers to be affirmative White Knights, putting in 20 hours of their time per year to “efforts to eliminate bias and promote equality.” Mind you, taking a CLE would do the trick, showing just how deeply committed they are to reality, even if it’s their woke reality, but still.

And if this rule is adopted,* it would create an ethical obligation, the failure of which could result in disbarment, to march with a pussyhat on one’s head. Remember when lawyers wore wigs?

But the contention here is that there is an ethical argument for lawyers to don their social justice armor and wield their sword of wokeness.

Our rules of professional responsibility have similarly reflected our profession’s conception of its obligations to society and have evolved as that conception changes. The first incarnation of our ethics standards, the Canons of Professional Ethics, did not address discrimination (at the time, ABA membership was not open to African Americans or women) or pro bono legal services.

Yet over time, the ABA declared discrimination to be professional misconduct and recognized a professional obligation to provide pro bono legal services, even setting an aspirational goal that each lawyer should render 50 hours of pro bono services per year.

It is time to take the next logical step. That is why the ABA should adopt a new Model Rule 8.5, as stated above, that would recognize a lawyer’s professional responsibility to promote equality in society generally, diversity in the legal profession specifically, and encourage lawyers to devote 20 hours annually to activities directed toward promoting diversity in the profession.

Nothing prevents a lawyer from being passionate against discrimination, although the rhetoric neglects to differentiate between entirely appropriate discrimination (we discriminate against dishonest people who would abuse their clients’ trust, and incompetent people who lack the capacity to provide zealous representation) and unlawful discrimination. And then there’s the gloss over discrimination based on gender identity and socioeconomic status, as in ability to pay.

Nothing prevents a lawyer from marching with whatever headgear he, she or they choose. Want to go to a CLE? Knock yourself out, although one might wonder about the efficacy of getting continuing legal education for learning how to market one’s legal services to the poor and downtrodden, as it doesn’t actually contribute much to one’s performance as a, you know, lawyer. But still, if this is how you want to spend your time and money, go for it.

If not, however, are you unethical? Should you be censured, sanctioned, disbarred? It appears that a donation to the Democratic presidential candidate of your choice, provided it’s not Mayor Pete or Tulsi, might be enough to keep your ticket under the examples of ethical lawyering proffered. And there’s always the ACLU for those who have grown to hate the Constitution when it gets in the way, so it’s not as if this new rule would be all that hard to meet.

While Rule 8.4(g) wasn’t met with enthusiastic support outside of the ABA’s last twelve active members, putting it into action by creating an ethical duty to spend actual time and money promoting the social justice political agenda pushes the envelope well beyond into the realm of absurdity.

You want to be a hero to the cause? Go for it. I’m just a lawyer trying to save lives one at a time.

*At this stage, it’s not yet adopted, but proposed by David Douglass,  managing partner of the Washington, D.C., office of Sheppard Mullin Richter & Hampton, and the inaugural recipient of a section’s Champion of Diversity and Inclusion Award.

24 thoughts on “ABA Doubles Down With Model Rule 8.5

  1. Norahc

    From a layperson viewpoint, it sure seems like Model Rule 8.5 could be considered compelled speech if adopted by the states.

  2. Skink

    They tried the “moral model,” you know what it is: be diverse because it’s the right thing to do. That didn’t work because “diverse” has no solid definition and it wasn’t the right thing to do. In fact, it was unlawful. So they tried the “business model,” which is to be diverse because clients demand it. Never mind clients don’t–they just want out of the jackpot. There was also that other problem.

    So Douglass finds the ultimate solution: the hammer. I’m sold. There’s no way I want to be unethical. So I’ve changed my website message:

    THE SKINK LAW FIRM IS NOW DIVERSE

    Recognizing that lawyers have been uninclusive for decades, which has caused great turmoil in society, The Skink Law Firm announces it has become diverse. Last Tuesday, the Firm hired a duck. Ducks have been excluded from lawyering since the beginning of time. In fact, ducks are excluded from attending law school, as law schools are not yet diverse. The Skink Law Firm is the leader in diversity and will plow the way through this injustice by training the duck as an apprentice.

    But wait, Douglass says this about the rule: “Although largely aspirational, it establishes a standard against which performance can be both encouraged and measured, like the rule encouraging 50 hours of pro bono legal services.”

    Aspirational? Does he mean it ain’t really the hammer it appears to be? Well, that’s a wholetogether different thing. I don’t really want duck shit al over my office.

    1. SHG Post author

      I remember well when they came up with the 50 hours of pro bono, as if it’s lawyers’ fault that people are poor and auto mechanics will fix their cars for free, but the idea was that they could shame lawyers into doing it, and get biglaw to require it of their associates on top of their hour demands. It wasn’t for the likes of us.

      Obviously, this isn’t geared to the solo, since diversity isn’t really a doable objective, but it could well play out differently for firms trying to put on a dog and pony show.

  3. DaveL

    This is the best part:

    and active participation in and financial support of organizations and associations dedicated to remedying bias and promoting equality, diversity and inclusion in the profession.

    Would that include associations like, oh, I don’t know, the ABA? It seems they would like the state bars to impose a duty on their members that those members could discharge by the simple expedient of becoming ABA members and sending them money. A shakedown, in other words. Having failed to secure an income by the evil capitalist strategy of offering value for monies received, they want to turn toward compulsion.

    1. SHG Post author

      Holy moly, you’re right. It never dawned on my that anyone, under any circumstances, would give money to the ABA.

    2. B. McLeod

      I would say that at this time, it certainly cannot include the ABA, due to its “experience-based” dues structure, which functions as a proxy for age discrimination.

  4. Raccoon Strait

    The ABA should be careful. Their remaining 12 active members might get caught up in parsing of their own words. “…every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession.” could be interpreted as saying that baby lawyers hired as associates at Big Law LLC should be compensated the same as partners, and work the same hours, and do the same types of work. It could get nasty.

    1. B. McLeod

      It could even be interpreted as saying the ABA needs to reform its “experience-based” dues structure that functions as a proxy for blatant age discrimination. If ABA were subject to its own proposed Rule 8.4(g) (which was not adopted in Illinois) the age-discriminatory dues structure would be professional misconduct. This possibly raises an issue even now for any attorneys in Vermont and New Mexico who are maintaining memberships in the age-discriminatory organization.

  5. B. McLeod

    More “bow to the hat on the pole” bullshit. Of course, all the BigLaw firms whose ABA member lawyers will push this will continue to “satisfy” their own obligation with the revolving-door crops of token “diversity” hires that they run through every 5 to 7 years. Just as they have been doing for the last thirty years. The very bastards pushing this shit on Main Street lawyers are the same people who have prevented any real change for decades.

  6. Rengit

    The Law Society of Ontario in Canada attempted this too, with a committed activist group trying to stealthily submit a regulation requiring all lawyers and paralegals to affirm a “Statement of Principles” that read something like a loyalty oath to diversity and inclusion. When some reasonable people objected that this was compelled speech, its proponents went on the warpath to shame and tar as racist anyone who disagreed with them, a charge that still carries a lot of weight in the comparatively more polite and less pugnacious Canadian society.

    The anti-SOP people managed to win an important election last year in the Law Society, and came up with a compromise regulation this past fall that lawyers state they are aware of human rights legislation, which of course wasn’t good enough for the activists. It showed the activists’ dishonesty, though, because they had framed the SOP as a matter of basic human rights.

    The difference is that, in Canada, conservatives and liberals still both care about the basic functioning of their professional institutions and maintain active membership, which is why those institutions still have real power. Not so much in the US, where organizations like the ABA have dwindling memberships after activists took over key committees, then the main boards, to make the entire org drift much further to the left than most of the profession. This may be changing in Canada, though, as left-wing activists are taking their political and rhetorical cues and strategies from their fellow comrades south of the border.

  7. Eddie S.

    So if a general counsel tells a law firm that he wants minority participation in the cases the law firm handles for him, is it okay under the rule or is it a violation of the rule and does the law firm have a duty to turn in the general counsel to the Bar authorities? Asking for a friend.

      1. Eddie S.

        There’s always a silver lining. (BTW the rule also means that an attorney can’t take a reverse discrimination case, no?)

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