Jurist: States should not adopt a speech code for lawyers

March 09, 2020 | By DANIEL ORTNER

Attorneys litigate on both sides of some of the most contentious issues in the country: affirmative action, rent control, abortion rights, gun rights, you name it. Sometimes the positions attorneys take may be seen as offensive, as those positions may run contrary to more “popular” opinions. But in our adversarial system of justice, free speech is necessary on these and other thorny subjects.  

Unfortunately, a proposed rule of professional conduct under consideration by policymakers in several states across the country would stifle controversial speech by attorneys. Should this rule be adopted, attorneys who speak out on controversial matters or represent unpopular clients will risk discipline and may even lose their ability to practice law – a disastrous outcome for the spirit of free speech and open inquiry. States should reject this dangerous rule without delay.  

The proposed rule is based on the American Bar Association’s Model Rule 8.4(g). Parts of the proposed rule are uncontroversial and welcome. For instance, the rule prohibits sexual harassment and other forms of harassment against co-workers or subordinates.  

Unfortunately, the rule goes far beyond preventing harassment. It prohibits any “verbal … conduct that manifests bias or prejudice towards others” based on race, sex, religion, sexual orientation or socioeconomic status. The vagueness of this language invites arbitrary and subjective enforcement – which invariably creates a conflict with our tradition of freedom of speech. By regulating speech that falls well short of harassment, attorneys will have to think twice about taking public stances on controversial issues for fear that their speech will be considered offensive.  

For instance, imagine if two attorneys are asked to debate whether the state should adopt rent control. The speaker arguing in favor of rent control argues that absentee landlords are profiteering off the poor and that rent control is needed to mitigate their greed. The speaker arguing against rent control extols the virtues of private property ownership and entrepreneurship and argues that renters need to work harder in order to meet the rising cost of rent rather than demand subsidies from landlords. If a listener is offended, the state bar could conceivably discipline either of these attorneys for manifesting “bias” on the basis of socioeconomic status. So the model rule would chill the willingness of any attorney to speak publicly of matters of great consequence.  

The model rule also blatantly discriminates in favor of certain viewpoints. The rule exempts “conduct undertaken to promote diversity and inclusion.” In other words, an attorney may safely argue affirmative action programs are necessary to combat the evils of white supremacy. But an attorney might be in jeopardy if they were to argue we should reject affirmative action in order to strive for a colorblind society. If the latter attorney were to quote, say, Justice Antonin Scalia’s declaration that “In the eyes of government, we are just one race here. It is American,” they could face professional sanctions.  

As if all of that weren’t bad enough, this misguided rule reaches beyond the public realm into the private. The rule is not limited to when a lawyer operates a law firm or appears in court. Instead, it applies even to social activities such as bar association events. So an attorney discussing a controversial topic with a friend at dinner could be in jeopardy of discipline if someone were to overhear the conversation and take offense.  

When the ABA proposes a model rule, it is usually embraced and quickly adopted by states across the country. Thankfully, Model Rule 8.4(g) has thus far been soundly rejected in most states where it came under consideration. Only one state, Vermont, has chosen to adopt the rule in full, and Maine has adopted a version of the rule that stripped out some of the more egregious elements. At least 11 states have flatly rejected it.  

Attorneys General in several states have spoken out, calling the law an unconstitutional speech code. Alaska’s Attorney General concluded that the rule would “function as a civility code covering every aspect of a lawyer’s conduct, however peripheral to the administration of justice.” The Attorney General of Texas was even more blunt, declaring that Model Rule “8.4(g), if adopted in Texas, would unconstitutionally restrict freedom of speech, free exercise of religion, and freedom of association for members of the State Bar.” 

The Supreme Court recently reemphasized that regulations that burden professional speech, such as attorney speech, are presumptively unconstitutional. Such laws “pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” That is exactly what Model Rule 8.4(g) would threaten to do if it were adopted and why it would almost certainly be invalidated after a lengthy and unnecessary legal battle.  

Fortunately, states across the country have been rejecting the model rule in order to avoid unnecessary threats to free speech and years of litigation. The Disciplinary Board of the Supreme Court of Pennsylvania still has the chance to do likewise. They should do so, and send a clear message that the right to free speech remains inviolable – for attorneys as well as all Americans.  

Daniel Ortner practices with the Pacific Legal Foundation with a focus on the First Amendment, property rights, economic liberty, and curtailing the overreach of the administrative state. Daniel graduated first in his class from the J. Reuben Clark Law School at Brigham Young University. He completed two appellate clerkships on the Utah Supreme Court and the Third Circuit Federal Court of Appeals.

This op-ed was originally published by Jurist on March 9, 2020.