The ABA's FollyAug 15, 2016
The American Bar Association (ABA) is the nation’s principal professional institution for members of the legal profession. According to the ABA, its mission is “to serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession.” With its nearly 150 years of history, 400,000 active members and 3,500 entities, the ABA wields incredible influence over the legal profession.
One of the most notable roles the ABA has assumed is creating the “Model Rules of Professional Conduct” for lawyers and judges. Although these model rules are not themselves binding on all lawyers, they are very significant because most states have enacted these Model Rules – or else a slightly modified version – as their own standards of professional conduct for licensed attorneys in that state. State policymakers don’t like to reinvent the wheel, so they draw heavily from the standards of the ABA.
It is troubling, then, to learn this past week that the ABA added a new "non-discrimination" provision to its Model Rules which, among other things, elevates certain sexual proclivities to a privileged status in the context of professional conduct. According to the new Rule 8.4:
"It is professional misconduct for a lawyer to: ... (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of...sexual orientation, gender identity, [o]r marital status...in conduct related to the practice of law. …"
“Comment ” supplements this provision of the rule, adding:
“ 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.”
What all this means in practice is that for many attorneys in states that adopt the ABA’s misconduct language (and many states soon will), practicing law in a way that is consistent with their faith or personal convictions may cost them their law license, and hence their livelihood.
This “misconduct” rule, much like other “sexual orientation/gender identity” law or rule we’re seeing governments and other institutions adopt in recent, effectively sets up a collision course between sexual autonomy and the rights of conscience. Meanwhile, these new provisions are designed to ensure that when such conflicts inevitably do arise, sexual autonomy always wins, and therefore that religious freedom will always lose.
In the relevant part, Comment  of the revised rule provides that “discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others.” Viewing this definition in conjunction with the virtually all-encompassing standard of “knows or reasonably should have known”, it is not hard to imagine the myriad of ways a person might target an attorney, such as hitting them with Bar complaints, which can lead to professional reviews, sanctions, and eventually disbarment.
Under this rule, an attorney who declines to represent a same-sex couple in an adoption (e.g. because he believes children should have the benefit of both a mom and a dad whenever possible) may be reported and disciplined for professional misconduct. An attorney who declines to represent someone who wishes to obtain a court order to alter the person’s sex as reflected on their birth certificate (e.g. because he believes that “God made them male and female”) could now be subject to professional discipline for “discriminating” on the basis of “gender identity.” Refusal to perform a same-sex “divorce” (e.g. because he believes doing so implicitly recognizes marriage as including a combination other than one man and one woman) could now cost an attorney big time.
Bringing things a little closer to home, an attorney who regularly advocates for traditional values may be accused by opponents of engaging in “harmful verbal…conduct that manifests bias or prejudice towards others.” The list goes on. And it is worth noting that the merit of these inevitable complaints makes little difference to the attorney who now has a series of complaints for unethical conduct on his record. Adding to his misfortune, that attorney, having become ‘damaged goods’ for having remained true to his guiding principles, is ironically unlikely to be considered for any judicial appointments.
When we leave the conceptual and enter the real world, we find that it isn’t just the faceless value of “religious freedom” that loses, because religious freedom is nothing if not the expression of real-life decisions by a real person with a real family who relies on them, a person with real hopes, dreams, gifts and passions. It is people who lose, and in this case, mostly those attorneys whose faith and conscience are real enough to influence their daily conduct. It also includes, by the way, every attorney who believes in objective facts – like the biological reality of male and female or the complementary nature of male and female in marriage. These are the people who some will insist be driven out of the profession.
It does make me wonder, as someone who’s heard a thousand times how crooked and deceitful lawyers are, why anyone would want to rid the profession of those few who are actually motivated by a sincere faith. One would think we should be clamoring for more conscience-driven professionals to guide and influence our legal system. Yet this new rule has the potential only to drive them away.
Moreover, another disastrous consequence of the ABA’s decision is that this rule effectively eviscerates one of the most sacrosanct and inviolable tenets of the legal profession – that a lawyer cannot be compelled to represent or advocate on behalf of a client whose objectives are “repugnant” to the lawyer’s personal viewpoints. It’s inherently a ‘conflict of interest’ – something an attorney is ethically obliged to avoid whenever possible – to have to zealously and persuasively pursue a client’s objectives when the advocate personally opposes those objectives to his very core.
But more than simply not wanting to force an attorney into that ethical dilemma, we have always recognized that the client’s interests are much better served by having someone else represent them who is not similarly conflicted. The greatness of this principle is that it applies equally and at all times to all attorneys, no matter their belief. It is obvious to the reasonable practitioners among us that, far from causing lawyers to be more “ethical” within their profession, this rule only bursts open Pandora’s Box from which endless new and irreconcilable ethical dilemmas will flow.
Given that it is now only a matter of time until the ABA’s new “misconduct” rule is introduced across the land, attorneys of conscience in each state need to be prepared to make the case as to why and how this new standard corrodes the entire profession while subjecting faith-driven attorneys to unwarranted and unnecessary harms. And if and when state Bars should fail to see the folly of ABA Model Rule 8.4(g) and adopt it anyway, faith-driven attorneys licensed in those states should be prepared to make a decision about how they will respond on that soon-coming day of conflict. As for me, that decision is already made.
Joshua A. Hetzler, Esq.