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’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.