The ABA’s Control Over What Lawyers Say, Whom They Hire, What They May “Legitimately” Advocate Ronald D. Rotunda Doy & Dee Henley Chair &Distinguished Professor of Jurisprudence, Chapman U., Fowler School of Law, Nov. 18, 2017 National Convention 2017

I am to the left.

Our P. C. World: Dunn v. Leath, S. D. Iowa, filed 11/27/16, Civ Our P.C. World: Dunn v. Leath, S.D. Iowa, filed 11/27/16, Civ. #4:16-cv-553, ww.adfmedia.org/News/PRDetail/10096 Verified Complaint against Iowa State University (ISU): ISU “harassment” policies specifically provide: “engaging in First Amendment protected speech activities” may be punished as “harassment.” ¶¶ 135,145 “First Amendment protected speech activities” may constitute harassment including if other students believe the speech is not “legitimate,” not “necessary,” or lacks “constructive purpose.” ¶55 ISU says “expressing opposition to same-sex marriage could be construed as harassment” ¶91, but OK to reject 2nd Amend. rights

Can the ABA be far behind? Prior to Aug., 2016: ABA Rule 8.4, Comment 3: “in the course of representing a client,” a lawyer should not knowingly manifest bias based on “race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status” “when such actions are prejudicial to the administration of justice.” Not black letter rule, a bit vague, AND “A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule”

New 8.4(g): professional misconduct to “engage in conduct” the lawyer “reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.” What’s illegitimate?

Comment 3 “discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct.” “The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).”

Comment 4: “Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.”

Why adopt 8.4(g)? To protect clients? court? NO ABA: “There is a need for a cultural shift in understanding the inherent integrity of people regardless of their race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation, marital status, or disability, to be captured in the rules of professional conduct” ABA Standing Committee, 12/12/2015

Rule 8.4(g) “does not limit the ability of a lawyer to accept, decline or withdraw from a representation” under Rule 1.16. Lawyer won’t represent man in drafting palimony agreement for quasi-wife #4: violation; discrimination on marital status. Lawyer won’t accept client suing Mormon Church for gender identity discrimination; Violation, NY Eth. Op. 1111, 2017 WL 527371 BUT Rule 1.16 only governs when you must or may withdraw

Lawyer will not represent religious couple who objects to being forced to cater gay wedding: no violation (comment 5) Lawyer engages in racial discrimination in choosing jury: no violation (comment 5) Lawyer won’t hire heterosexual messenger because he’s heterosexual: no violation (comment 5) Deborah Rhode: “we would be trusting that the organizations would not be going after people that they don’t like, such as . . . conservatives. We would have to just trust them”

Rule 8.4(g) “socioeconomic status” – Comment 4: “Conduct related to the practice of law includes” “interacting with” “lawyers and others while engaged in the practice of law” Law firm water cooler, lawyer says, “raise capital gains taxes; I hate idle rich.” Bad “You’re just saying that because you’re a short, fat, hillbilly Nazi.” Good

ABA claims some courts already have such a rule with no problems reported. “The Minnesota Supreme Court in 2013 disciplined a lawyer who, while acting as an adjunct professor and supervising law students in a clinic, made unwelcome comments about the student’s appearance; engaged in unwelcome physical contact of a sexual nature with the student; and attempted to convince the student to recant complaints she had made to authorities about him. In re Griffith, 838 N.W.2d 792 (2013).” From Report to House of Delegates

Rule 8.4(g) goes far beyond that; it bans “verbal conduct” EEOC, it can be racist if viewer thinks so; full-scale investigation 2016 WL 3361228, at *2 (June 3, 2016) even though . . . S.Ct. says, Next Friend LaShonda D. v. Monroe City Board of Educ., 526 U.S. 629, 633 (1999), “an action will lie only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit.” Name-calling not enough U.S.P.O. worker wears cap that says —

At bar panel discussion Black lives matter-OK, but not: All lives matter Blue lives matter Assume state or country bar drafts ethics opinion that St. Thomas More Society [Catholic lawyers] is not “inclusive” and membership is “verbal conduct” that “manifests bias”

“firms built ‘Chinese Walls’—a barrier between the conflicted attorney and the rest of the firm” http://www.americanbar.org/content/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/solo_lawyer_conflicts_ethics_client.html “‘Chinese Wall’ is one such piece of legal flotsam which should be emphatically abandoned. The term has an ethnic focus which many would consider a subtle form of linguistic discrimination. Certainly, the continued use of the term would be insensitive to the ethnic identity of the many persons of Chinese descent. Modern courts should not perpetuate the biases which creep into language from outmoded, and more primitive, ways of thought.” Peat, Marwick, Mitchell & Co. v. Superior Court, 200 Cal. App. 3d 272, 293 (Ct. App. 1988)(Low, J., concurring).

Law firm not hires messenger Disgruntled messenger sues – “you did not hire me because I asked to use the wrong restroom” tort implied by Rule 8.4(g), which governs firm management & “gender identity” Discipline also possible Local bar advisory opinion may announce lack of unisex restrooms violates 8.4(g)-even if no state or federal law violated