The ABA’s Attempt to Muzzle Lawyers

We hear more and more about the attack on conscience rights in the health care and counseling professions: the Obama administration early on moved to reverse federal protections from health care workers having to take part in morally objectionable procedures; Washington State’s requirement (sustained by the U.S. Supreme Court) that pharmacies sell abortifacients; the new Illinois law requiring health care providers who object to taking part in abortions to inform women where they can get them (effectively demanding a pro-life referral service for the abortion industry); and states like New Jersey forbidding counselors to try to help minors to overcome same-sex attraction when they and their parents seek such help (homosexualist organizations even want to ban such therapy outright). Now, we have brewing a substantial attack on the free speech rights of lawyers across the country.

In his well-known blog, “The Volokh Conspiracy,” UCLA law professor Eugene Volokh has recently written about a disturbing new American Bar Association addition to its Model Rules of Professional Conduct, which it recommends to the state bars that actually regulate the legal profession and which they have widely adopted. The new rule asserts that it is “professional misconduct” for lawyers to engage in conduct in any way “related to the practice of law”—he says that what this means is open-ended—which constitutes “harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” While the ABA claims that this does not preclude “legitimate advice or advocacy,” Volokh says that is hardly reassuring. Apparently having in mind how the left has increasingly tried to shut down even speech that makes people “feel uncomfortable” often just because they disagree with it and has viewed criticism of the actions or views of some members of certain demographic groups as a biased attack on the group itself, Volokh argues that this provision could easily be used in an array of insidious, repressive ways.

For example, he says that if a speaker at a continuing legal education event—lawyers in most states are required to take a certain number of hours of continuing education credit to keep their licenses active—called for limits on immigration from Islamic countries, or opposed same-sex “marriage,” or opposed allowing public restrooms to be used according to the sex that a person “identifies” with, he could face official discipline or sanction. (By the way, Volokh supports same-sex “marriage,” but unlike so many of its advocates who are trying to force a universal consensus supporting it he seems to believe that free speech is important.) Even if a lawyer at a bar association dinner said something critical in conversation about, say, the “Black Lives Matter” movement that offended someone at his table, that person could file a complaint with the state bar and discipline could follow. Volokh says that the model rule doesn’t require even a certain level of severity or that it stimulate a hostile environment—like the old “fighting words” standard of U.S. constitutional law—and so, indeed, a mere comment is all that’s needed.

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By contrast, if a lawyer is “pro-equality”—which seems to imply the egalitarian viewpoint of the left—or wants to advocate and even act to promote “diversity and inclusion”—which, again, seems to mean what the left has in mind, such as pushing favored groups—this seems to be acceptable. Volokh has no illusion about what’s behind the ABA’s model “harassment” rule. He says in an article in The Washington Post that it simply wants to “limit lawyers’ expression of viewpoints that it disapproves of.” He suggests that it’s picking up on what the Obama Equal Employment Opportunity Commission has claimed about workplace harassment: an employer should be legally liable if he doesn’t shut down political speech (supporting some “conservative” positions?) that one of his employees might claim are, say, racially offensive.

It’s interesting that for all its concern about equality the ABA has said nothing about the legal anomaly of Islamic truck-drivers—as least as far as the Obama administration is concerned—not having to deliver liquor, while Christian pharmacists in Washington State are required to stock abortifacients.

The ABA’s politics have been clear for some time. Robert J. Olson and Herbert W. Titus—Titus was the founding dean of the Evangelical-oriented Regent University Law School—have catalogued the ABA’s stands in recent years. These read like the usual leftist fare: support for legal abortion (the ABA actually had to backtrack on that because it caused so many of their members to quit), support for affirmative action, embracing the homosexualist agenda (including same-sex “marriage”), support for gun control, and opposition to efforts to check illegal immigration. Like Volokh, Olson and Titus skewer the ABA’s attempt at “re-defining lawyer ‘Misconduct’ to prohibit discrimination against a slew of broad new ‘classes’ of people around which the left organizes politically.” They also call to task state bar associations for “blindly adopting new ABA proposed rules like lemmings.” Furthermore, they tell us that despite the ABA’s outsized influence—which was even evident in the late nineteenth century, when it was impervious to the natural law in a different way by pushing an absolutist notion of property rights to benefit large corporate interests—only 17 percent of U.S. lawyers today are due-paying members and membership isn’t even limited to the legal profession.

Despite excluding “legitimate advice or advocacy” from its definition of “harassment”—one wonders what is acceptable as “legitimate” and why that qualifier was even included—can anyone be sanguine that if state bars adopt this ABA model rule it will not deter some lawyers from associating with or assisting politically unpopular—from the leftist standpoint—organizations (read: pro-life, pro-family, anti-homosexualist, etc.), and even wanting to take on or defend clients who get into a legal jam because these positions (e.g., sidewalk counselors at abortion clinics who supposedly get too close to entering women or violate a noise ordinance)?

What do the ABA’s action and the cases mentioned of professional freedom and conscience rights in other learned professions mean? They suggest that the left is trying to push out of the professions those whose views on basic morality are opposed to theirs—including, especially, serious Christians—or at least silence them. This is of critical importance in the culture war, of course, because these people tend to be the leaders, the ones who forge attitudes about practices in crucial areas and in society overall. One has to look no further than the psychological and psychiatric organizations and the major medical organizations to see the crucial roles they played in advancing, respectively, the homosexualist and pro-abortion agendas.

What is to be done? Members of the legal and other professions who don’t want to be bowled over any more need to mount concerted public opposition to the major organizations, seek to publicly discredit them just by telling the truth about what’s happening and the flawed pronouncements they make, oppose efforts to let them shape state regulations as the ABA tries to do, and when possible form active alternative organizations and make a sustained push to have public decision-makers and the media listen to them. They also need to respond to fraudulent disciplinary complaints—like the ABA rule is certain to provoke—with lawsuits against the individuals and organizations making the complaints. Average citizens and pro-life, pro-family, religious liberty advocacy, and other religious groups need to follow what the mainline professional organizations are scheming and denounce these things regularly in letters to the editor, press conferences, and with picketing and rallies at their conventions and periodic meetings. Even a small number of protesters can have an unsettling effect on professional convention-goers who are there as much for a break and vacation time as for professional enrichment, and this might motivate them to tell their leaders to watch their p’s and q’s more. Organized, consistent opposition to what has become an increasingly intolerant, ideologically-driven ruling establishment in the learned professions, coupled with proclaiming the truth through whatever means possible, perhaps can lead to their reclamation.


  • Stephen M. Krason

    Stephen M. Krason is Professor of Political Science and Legal Studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists.

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