Thursday, August 11, 2016
The ABA wants to suppress my exposition of Catholic philosophical and moral teachings. It's simple: define everything that the urban secular elites don't like as "bias" and define all bias against ideas that the urban secular elites don't like as not bias,and - Hey, Presto! - you have a world of thoughtcrime. //The American Bar Association has adopted a new provision in its Model Rules of Professional Conduct — an influential document that many states have adopted as binding on lawyers in their state. I blogged about it when it was just proposed, in slightly different form, but I thought it was worth repeating my analysis now that the ABA is formally recommending it to state bars and state courts. Here is the relevant text (emphasis added): It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or 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. Discrimination and harassment . . . 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. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g). 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. So say that some lawyers put on a Continuing Legal Education event that included a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side said something that was critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar: 1. He has engaged in “verbal . . . conduct” that “manifests bias or prejudice” toward gays, Muslims or transgender people. 2. Some people view such statements as “harmful”; those people may well include bar authorities. 3. This was done in an activity “in connection with the practice of law” — Continuing Legal Education events are certainly connected with the practice of law. (The event could be labeled a bar activity, if it’s organized through a local bar association, or a business activity.) 4. The statement isn’t about one person in particular (though it could be — say the debater says something critical about a specific political activist or religious figure based on that person’s sexual orientation, religion or gender identity). But “anti-harassment . . . case law” has read “harassment” as potentially covering statements about a group generally, even when they aren’t said to or about a particular offended person, and the rule is broad enough to cover statements about “others” as groups and not just as individuals. Indeed, one of the comments to the rule originally read “Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups.” But the italicized text was deleted, further reaffirming that the statement didn’t have to be focused on any particular person. Or say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint.// We are a long, long way from the understanding of freedom of speech that existed when I was in law school.