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Catholics beware: the ABA is not on your side, and rule 8.4(g) is especially troubling.
By Amy E. Swearer, The Cardinal Newman Society, March 22, 2018
My dear law school students (and those pondering the path of law school), about this time of year, you have many things on your plates. It’s rough. But soon, God willing, you will be real attorneys and then the “real” lawyer education will begin.
Being a real lawyer is hard. There are some things that everyone tries to prepare you for mentally, like dealing with difficult clients and navigating the waters of law firm life. But there are also inevitably problems you run into that you wish someone had thought to warn you about beforehand.
I’m going to tell you about one of those things. Buckle up, this will be a long ride.
If you are a Christian preparing for the legal profession, you need to know about the American Bar Association’s adoption of rule 8.4(g), and how its adoption or rejection by various jurisdictions can impact your entire career.
Yes, I know you may vaguely remember this rule if you’ve already studied for the MPRE or have taken a standard Legal Profession class. But if you’re anything like me—and I suspect too many of you are—then you paid very little attention. After all, you only need a score showing you are negligibly ethical in order to practice law. You may only think of the American Bar Association as some nebulous entity whose rules are essentially meaningless as long as you don’t hide bodies under your floorboards or start a meth lab in your bathroom. You would be wrong.
The American Bar Association is a private trade organization, and less than 25 percent of America’s lawyers are members. But the ABA wields a tremendous amount of power because states have unanimously authorized it to accredit their law schools, and in most states, graduating from an ABA accredited law school is a prerequisite for taking the bar exam.
The ABA’s power is especially evident in regard to its Model Rules of Professional Conduct, which are tested on the Multistate Professional Responsibility Exam (MPRE)—a test ABA accredited law schools must require their students to pass. The ABA zealously lobbies state courts to adopt these Model Rules, which many routinely do under the unspoken premise that the rules constitute the “gold standard” of legal professionalism.
Through these rules and their subsequent adoption by state courts, the ABA effectively governs every aspect of how you will practice law, even when you are not in a court room or interacting with a client. If you don’t believe me, study for the MPRE.
Failure to abide by these rules is no laughing matter.
Let me explain something to you—you do not want to find yourself in front of an ethics board. If you think representing a client in a lawsuit is hard, imagine being the actual client. Now imagine that you have limited due process rights in a system that isn’t exactly conducive to fairness, and that your career can be ruined even if you defeat the ethics complaint.
Trust me, the ethics rules adopted by your licensing state are important.
And that’s what makes the ABA’s adoption of 8.4(g) so worthy of note for Christian law students: despite the placations of proponents, this rule could have drastic consequences for your future in the legal profession.
Model Rule 8.4(g)—and the three Comments added to explain it—replaces the previous Comment that addressed harassing and discriminatory conduct by lawyers. 8.4(g) prohibits a lawyer from engaging in speech he “knows or reasonably should know” is “harmful,” “derogatory,” or “demeaning” on the basis of “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status” in any activity “related to the practice of law,” including “bar association, business or social activities.”
This is a dramatic expansion of the previous Comment, which was limited in scope only to actions the lawyer actually knew were biased or prejudicial, and only where such actions both were made during the course of representing a client and were prejudicial to the administration of justice.
Numerous articles have been written expounding the many ways 8.4(g) is likely an unconstitutional restriction on the free speech and free exercise rights of lawyers, and I won’t reiterate details of the analyses.
The practical problem for Christian lawyers is that this rule can easily be weaponized to silence viewpoints the ABA—or any state ethics board in states that adopt the measure—finds incompatible with its subjective mission.
Now, I’m not a fan of conspiracy theories and doomsday scenarios. I really, truly want to believe proponents of 8.4(g) who say the rule is directed at serious, glaring cases of misconduct and will not be used to silence political or religious views that have fallen from official favor. And, to a large extent, I believe that many proponents truly believe this will be the case.
But I do not for one second believe that once this door is opened, it will not be walked through by the same small but motivated group of “social justice” activists that has for the last few decades made war against Christian professionals. And I do not for one second believe that the ABA will rise to defend us when this happens.
Why? Because history indicates that we are dangerously mistaken in concluding that social justice-based norms will not be used to punish people of faith or of dissenting political views.
We were promised campus speech codes are necessary to protect young minds from offensive words, and would not be used as tools to stifle intellectual debate and silence dissident voices. This is objectively untrue.
We were promised that a judicially-created right to abortion would not lead to demands that pro-life medical practitioners abandon their consciences and promote or participate in an act they consider legalized murder. This is objectively untrue. (See also here, here, and here.)
We were promised that the legalization of same-sex marriage via judicial fiat from a divided court would not impact straight people of sincere faith. This is objectively untrue.
We were promised that the promotion of social justice policies would not lead to an inquisition against Christians in the public sphere. This is objectively untrue. (See also here, here, and here.)
Forgive me for being wary of promises that the unnecessary, unlimited, and overly-broad language of 8.4(g) will not lead to passionate “social justice” warriors weaponizing very rational interpretations of the rule to bludgeon Christians, Orthodox Jews, devout Muslims, pro-life advocates, and any other voice that dissents from a social justice norm. It won’t happen overnight, but slowly, by pushing the issue again and again and again. Eventually, as the tide of public opinion continues to turn away from protections for the political incorrect and inconvenient, they will start to succeed.
As for the ABA, don’t expect to find friends there, either. The ABA is not on your side. In fact, the ABA’s leadership has already admitted that 8.4(g) is not about solving an existing problem as much as it is about effectuating a “cultural shift” in the way lawyers behave in public. Based on the ABA’s history, I promise you this cultural shift means not just a shift away from legitimate bias and harassment, but away from a “culture” it considers equally detrimental to the legal profession—political and philosophical dissent.
The ABA, for all its bluster of desiring diversity and promoting the interests of all lawyers, is far from an apolitical arbiter of neutral standards. It is interested in advancing socially progressive causes at the expense of basic constitutional principles—if the rights of Christians stand in the way of those causes, the ABA has shown little hesitancy in demanding our rights be trampled for the good of the cause.
Since the 1990s, it has been a steadfast proponent of abortion rights. It voted in favor of this policy platform despite knowing it would cause a mass exodus of pro-life members, and continues to show active hostility to “anti-abortion legislative zealotry” by “conservative lawmakers.”
It argued that Texas should not be allowed to execute a convicted murderer because its 10th Amendment Police Power must bow to judgments issued by the International Court of Justice.
It supported denying law-abiding American citizens their constitutional right to keep and bear arms in their own homes for purposes of self-defense.
It advocated in favor of forcing a Christian baker to violate his conscience by designing a custom wedding cake celebrating a same-sex marriage, despite the fact that the couple went out of their way to hunt down this particular baker and the fact that other qualified individuals were willing to design a similar cake.
It maintained that colleges should be able to threaten Christian organizations with the revocation of their institutional recognition if they did not admit members who categorically rejected the organization’s foundational beliefs and principles.
It has, in the last two decades, either intentionally or unintentionally showed significant bias against conservative and Christian judges nominated to federal courts. Ironically, during this same time, the ABA has trumpeted its fight against “implicit bias,” which has been repeatedly debunked as a credible measure of racist attitudes or disparate outcomes.
No, the same ABA with a long history of taking positions hostile to the rights of Christians, with a stated desire to effectuate a cultural shift away from their “harmful” attitudes, and with thinly veiled declarations that “you people” are personae non gratae is not exactly the organization I would count on to defend them against the inevitable assault.
So, where does that leave you? In a precarious situation. It’s quite possible that your futures—and mine—as Christian lawyers just became a bit more complicated.
The Christian Legal Society has been keeping close tabs on developments. Its most recent updates on states that have or are currently considering adopting 8.4(g) can be found here.
The best thing you can do right now is remain aware of developments within states you are considering for law school, bar passage, or transfer of licensing, and make informed decisions on whether and how to approach practice in an 8.4(g) jurisdiction. This does not necessarily mean you should avoid 8.4(g) jurisdictions like Vermont, though it is certainly a step one might consider now that the Vermont Supreme Court has issued its opinion that 8.4(g) is the lens through which other rules will be interpreted and understood.
Note something very important—I said “be aware” and not “be afraid.”
The ABA’s rule change, and its subsequent consideration and adoption by states, has not been without significant backlash. Attorneys General from Texas, South Carolina, and Louisiana took the rare step of issuing opinions condemning the rule and urging their respective states to refrain from adopting it, noting its numerous tensions with basic constitutional rights. The Montana Legislature passed a joint resolutioncondemning the rule, the Illinois State Bar Association Assembly voted overwhelminglyagainst its adoption, and the Disciplinary Board of the Supreme Court of Pennsylvaniawrote that “the breadth of ABA Model Rule 8.4(g) will pose difficulties for already resource-strapped disciplinary authorities.”
My Christian brethren, you are not without hope, and you are not without support. The legal profession needs you, despite the ABA’s repeated suggestions to the contrary. It needs you both as qualified legal advocates, and as precisely the people you are: conservative and Christian. It needs your voice to speak. It needs your voice to dissent. It needs your voice, even if it hates you for it.
Be aware. Be informed. But do not be afraid.