In August 2016, the American Bar Association, seeking to impose a "cultural shift" on the legal profession and change how lawyers think about gender and marriage, amended Model Rule of Professional Responsibility 8.4. The rule has no legal force-- it simply suggests a "model" from the ABA for states to follow in their ethics codes-- until a particular state adopts it. Yet the Model Rules are influential, followed by many states as a matter of course.
The current rule-- the rule that ABA Model Rule 8.4(g) would amend-- combats invidious discrimination and disciplines lawyers who corrupt the legal process through bias and prejudice in the course of representing a client.
The proposed rule would expand the conduct for which lawyers could be disciplined to any "conduct related to the practice of law," which is defined to include "interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or practice; and participating in bar association, business or social activities in connection with the practice of law."
In addition to this expansive reach into employment law and social activities, the rule does away with the requirement that the words or conduct that could be censured are "prejudicial to the administration of justice." Under the proposed rule, a mere "offense" given by words or conduct could subject a lawyer to a grievance, even though it has nothing to do with protecting clients, the court, or justice.
It's a bad idea. And it is a threat to religious liberty and lawyers' autonomy.
Host Mike Schutt, who taught Professional Responsibility as a Regent Law professor is joined by Kim Colby to discuss the rule and its implications.
Kim Colby is the director of Christian Legal Society’s Center for Law and Religious Freedom , where she has worked since graduating from Harvard Law School in 1981. She has represented religious groups in several appellate cases, including two cases heard by the United States Supreme Court. She has filed numerous amicus briefs in federal and state courts. Ms. Colby has prepared several CLS publications addressing issues about religious expression in public schools, including released time programs, implementation of the Equal Access Act, and teachers’ religious expression.
For more resources on this rule-- including videos explaining the issues and critical scholarship-- visit the Christian Legal Society 8.4 Resources page.
Cross & Gavel is a production of Regent University School of Law and the Christian Legal Society.
In early August, the American Bar Association's House of Delegates will vote on a proposed amendment to Rule 8.4 of the Model Rules of Professional Responsibility. The amendment would subject lawyers to professional discipline for "harassment" or "discrimination," even if the conduct was unintentional or committed unknowingly, and even if the harassment or discrimination is not prejudicial to he administration of justice.
The rule proposes that any conduct "related to the practice of law," including running a law firm, representing a client, or engaging in social conduct as a lawyer, would fall under the rule. The rule also expands the classes against which unknowing "discrimination" is prohibited to include "socioeconomic status," "gender identity," and "sexual orientation." Given the current cultural winds, this rule is a dangerous minefield for lawyers, particularly those who don't see "gender identity" or "sexual orientation" as cultural "causes" to be celebrated.
Brad Abramson, Senior Counsel with the Alliance Defending Freedom, has been following this issue for several years. About three years ago, a handful of states moved to enact similar changes, and Brad has been on top of the issue ever since. Now that the ABA is following suit, there is a danger that many more states will jump on the bandwagon.
Join host Mike Schutt as he and Brad discuss the proposed rule and its specific dangers to practicing lawyers. They discuss the proposal's break with the tradition of lawyer autonomy, its Constitutional difficulties, and the specific changes the new rule would make. They also speculate as to why the ABA Standing Committee on Ethics and Professional Responsibility would ignore 477 lawyers' comments opposing the rule (in contrast to the 17-- just 17!-- in favor of the rule) when revising it. In closing, Schutt and Abramson suggest that attorneys everywhere contact their delegates and urge a "NO" vote on the proposed amendment, Resolution 109, at the ABA House of Delegates meeting August 8 and 9. A list of delegates is available here.
Both Christian Legal Society and ADF submitted detailed comments opposing the rule. Read them here (CLS) and here (ADF).
Mike Schutt is the host of Cross & Gavel audio, and Associate Professor at Regent University School of Law, where he has taught Professional Responsibility and Torts, among other things. He is a graduate of the University of Texas School of Law. He currently teaches American Legal Thought in the Regent MA program and directs Attorney Ministries for the Christian Legal Society. Contact him at firstname.lastname@example.org.
Bradley Abramson serves as senior counsel with Alliance Defending Freedom, where he plays an integral role on the Alliance Coordination Team. He also directs the Bar Association Project, which focuses on encouraging allied attorneys to participate in and influence bar associations to advance religious freedom. He earned his J.D. from the University of Minnesota Law School. Contact him at email@example.com.