The ABA recently adopted, by voice vote, an amendment to the model rules of professional conduct containing a speech code for lawyers. Speech codes have become increasingly popular on college campuses, and when challenged in court, are unsurprisingly almost always found to violate the First Amendment (when enacted in a public college or university). Eugene Volokh explains the meaning of the new model rule and its chilling implications:
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. . . . 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. . . . Discrimination and harassment . . . includes harmful verbal or physical conduct that manifests bias or prejudice towards others. . . . 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. . . .
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 . . . .
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.
Again, you’ve engaged in “verbal . . . conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The state bar, if it adopts this rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.
Volokh concludes that the goal of the speech code appears to be suppression of speech with which the ABA disagrees:
Many people pointed out possible problems with this proposed rule — yet the ABA adopted it with only minor changes that do nothing to limit the rule’s effect on speech. My inference is that the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of.
While this rule could likely be successfully challenged in court should any state bar or state courts adopt it, it will suppress speech merely by its existence. Attorneys should not need to live in fear of an ethics complaint for expressing an unpopular view, any more than organizations should have to live in fear of government investigation for expressing politically incorrect views.