Liberty, Prudence, Imperfection, and Law

“The Borg Strikes Again: The Lawyers’ Guild Wants You to Know that Resistance to Its Social Agenda Is Useless,” By Bruce Frohnen

“Resistance is futile.” Photo by Bruno Girin, CC BY-SA 2.0.

The American Bar Association (ABA) recently announced an important revision to its model rules of professional conduct. The new rule would impose speech and behavior codes that would deny representation to religious viewpoints and to religious Americans. The ABA’s house organ (the ABA Journal) rather snippily noted that some people from outside the ABA have criticized the new rule but that, at the meeting where it was approved, “there were no speakers in opposition.” The article might leave the impression that no rational, decent lawyer would oppose the new rule. The reality is quite different. For decades, now, dissent against revolutionary social change intolerant of traditional beliefs has been squelched within the ABA. Today few lawyers who retain their commitment to the rule of law and the basic freedoms of religion, speech, and association retain membership, let alone leadership, in that univocally leftist organization.

ABA Resolution 109 recommends changes to the rules of professional conduct in all states, potentially governing the ability of lawyers to continue practicing their profession. It is written with typical lack of concision. Some key provisions:

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. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct.

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.

What do these provisions mean in practice? That someone hosting a debate, conducting a class, or even discussing in front of other lawyers issues such as same-sex marriage, rules regarding transgender bathroom usage, potential limits on immigration from Muslim countries, gender roles, race- and sex-based hiring practices, and a host of other issues could be subject to professional discipline. As civil rights commentator and UCLA law professor Eugene Volokh remarks, “even a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.”

Obviously, some will seek to downplay the possibility that the new standard would be used in such draconian fashion. Consider, then, ABA leaders’ own view of the new rule, as reported in a letter opposing the rule written by former Attorney General Edwin Meese and Kelly Shackelford, President of the First Liberty Institute. They note that, in discussing the “reform,”

ABA leadership clarified that they believe certain viewpoints and policies should be removed from public discussion—including legislative and legal venues—and indeed, the ABA will ban attorneys from advocating on one side of the debate in order to ensure that the law moves in a particular direction on controversial social and policy issues. ABA leaders have indicated that the proposed rule, in addition to discipline, “could be used strategically against lawyers and law firms” based upon their viewpoints and religious beliefs.

One committee member, Drucilla Ramey, added that bar leadership must go “to the top of the legal profession” in order to “incentivize” attorneys to change their conscious and unconscious views and speech on everything from sex, race, gender, to law firm hiring and compensation, to “interrupt” their supposed “bias” and change their beliefs.

The ABA has been utterly taken over by an ideology that sees the law as mere institutional power. Whether wrapped in the academic jargon of the critical legal studies movement or simply asserted in the name of resentment, this ideology holds that law-as-power should be used to undermine “institutionalized racism” and reconfigure the opinions and very minds of the American people. It is not too much to say that the ABA has thrown in its lot with the most radical of political ideologues as a means of making its members feel good about themselves (as “Social Justice Warriors”) while increasing the already enormous overuse of law. This rule would further increase the tendency of Americans to sue one another in the name of “fairness” and a form of “nondiscrimination” that specifically targets some opinions while it encourages hiring practices favoring groups deemed “victims” at the expense of others.

The prospect of a professional organization using its power over the right to pursue one’s livelihood as a means of inculcating the “correct” views on contentious social issues should frighten us all. That the ABA seeks to do so in a manner intentionally prejudicial to the views and livelihoods of literally millions of Americans, be they Catholic, evangelical Protestant, Mormon, Orthodox Jewish, or otherwise connected with traditional religions, is a fact inimical to our constitutional traditions. This is an attempt at secular cleansing, of forcing out of the public square and even a prominent, important profession, those whose beliefs were deemed mainstream not ten years ago, but who now are to be treated as bigoted pariahs.

There is more to consider. Lawyers have earned a prominent place in American life in two ways: by quietly assisting Americans in going about their business and by defending fundamental principles of American law and constitutionalism in unpopular cases. This new rule would overtly subordinate law to politics. Lawyers would be unwilling to help churches or religious individuals to conduct their business for fear of crossing an unseen line that might get them reported as “discriminators.” As for unpopular cases, would John Adams be willing to defend the British soldiers accused of murder after the Boston Massacre in a like situation today? Perhaps not if one of them were accused of making disparaging remarks toward members of some protected group.

By further politicizing the law, the ABA seeks to further its own politically correct ends, further transform our society into one hostile toward traditional religion, and maintain its own power. In the process, unfortunately, it is undermining the rule of law and the Constitution.


Bruce P. Frohnen is Professor of Law at the Ohio Northern University Pettit College of Law.

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