Deseret News: How a proposed Utah Bar rule could limit lawyers’ free speech

The Utah Bar is considering a misguided rule that would impose a “code of civility” on Utah lawyers. The rule is vague, giving regulators too much discretion to punish lawyers who work on controversial issues. It will make it much harder for them to do their jobs well and limit their ability to fight for important causes.

Among other things, the rule forbids attorneys from engaging in writing or speech that is “humiliating,” “hostile,” “demeaning” or “discriminatory.” Other expression that displays “disrespect,” “insulting behavior, “ill will” or “inappropriate language” is likewise verboten. The rule applies not only in court, but to any “law-related activity,” including even a law firm party or any professional event. If adopted, the rule will silence attorneys who cannot know exactly what the rule forbids because of its highly subjective language and encourages politicization of the bar’s disciplinary powers.

Consider what such a rule might mean for an attorney like Atticus Finch from the novel “To Kill a Mockingbird.” Even Atticus, a gracious country lawyer who has been referred to as the “embodiment of civility” could have faced bar discipline for defending Tom Robinson, a Black man, against the false rape allegations of Mayella Ewell, a white woman. How could he possibly cross-examine Mayella to expose the truth in a manner that wouldn’t be considered “humiliating” or “demeaning?” In fact, Mayella repeatedly complained that he was mocking her when Atticus pressed her about the details of the incident. His rigorous cross-examination made clear that Tom Robinson could not have been guilty.

In defending Tom, Atticus provoked the ire of the community. Does anyone doubt that the Alabama Bar of the 1930s would have used this rule to try to suspend or disbar Atticus for defending a Black man and “humiliating” a white woman?

That’s the trouble with vague speech restrictions. They open the door to enforcement abuse, where officers construe standards like “humiliating” or “hostile” to punish dissident ideas or unpopular advocates.

If attorneys are unable to candidly discuss controversial topics, then all of us will be worse off as a result. Attorneys speaking out on controversial topics have been instrumental in many of the most significant movements in American history, from abolition to the civil rights movement and from the pro-life cause to the push for LGBTQ+ rights. And just as consistently, state bars have attempted to use ethics rules to silence those brave enough to speak up for individual liberty.

Let’s consider a few more modern hypotheticals. Recall that the rule would prohibit “discriminatory” speech. So what of a public interest lawyer representing Asian college students denied admission due to race-based affirmative action? Does advocacy questioning affirmative action constitute discriminatory conduct? And what about an attorney who intervenes in the same lawsuit on behalf of African American students who favor such policies — could this be construed as discriminatory conduct toward Asians? The trouble is that either position could be viewed as “professional misconduct” under the proposed rule, leaving punishment up to the personal political preferences of the state bar.

And the trouble doesn’t end with what lawyers say in court, but extends also to any “law-related activity” — another nebulous phrase. If an attorney shares a pro-life article on his LinkedIn page, could he be subject to sanctions for sex discrimination? If an attorney wears a MAGA hat at the firm Christmas party, could he face bar discipline? Because it is unclear exactly what speech might be covered by the rule, attorneys will surely censor themselves, afraid to express unpopular views that may be taken the wrong way and result in bar sanctions.

In considering whether to adopt this heavy-handed rule, the Utah Supreme Court should remember the words of Atticus Finch: “The one thing that doesn’t abide by majority rule is a person’s conscience.” The bar has a legitimate interest in attorney professionalism and client well-being. But it must achieve those interests through understandable rules that respect attorneys’ right to express themselves, and cannot be used as a weapon against controversial viewpoints.

This op-ed was originally published by Deseret News on August 20, 2020.