By DEACON MIKE MANNO
(Editor’s Note: Deacon Mike Manno, an attorney, is director of deacons for the Diocese of Des Moines and host of Iowa Catholic Radio’s Faith On Trial program [www.iowacatholicradio.com]. He can be reached at deaconmike@iowacatholic
radio.com.)
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Religious and conservative commentators have rightly complained about the current wave of political correctness sweeping through the nation’s liberal enclaves. No longer do old traditions or rules apply for, according to our modern illuminati, any words or conduct that could cause anyone to feel uncomfortable — whether intended to or not — could justify investigating even the most benign activities or conversations.
A good example is a recent ruling by the EEOC to investigate whether a Postal Service employee created a “hostile work environment” by wearing a cap with a reproduction of the Gadsden flag (“don’t tread on me”). The complaint was filed by a black employee who said the hat was offensive because the flag was designed by Christopher Gadsden, a “slave trader & owner of slaves,” and that it’s a “historical indicator of white resentment against blacks stemming largely from the Tea Party.”
While admitting that the flag was originated during the Revolutionary War in a non-racial context, the claim that some might consider it racist warranted a full investigation, said the EEOC.
And, of course, we’re all familiar with the ongoing PC culture on college campuses. The wrong word in front of an impressionable co-ed, minority, gender confused, or you name it, can get an unsuspecting student suspended or even expelled, even if it was something as simple as telling a fellow student that she looks nice today. There is, however, one hard and fast rule in all of this: Nothing anyone can say or do can offend a conservative or Christian because they are the root cause of others being offended.
Sorry, those are the rules; I didn’t make them up!
Enter the American Bar Association. Now one would think that the ABA would be in the vanguard fighting for freedom of expression and First Amendment rights (as we would have expected the ACLU to do, but I digress), but you would be wrong.
The enlightened leaders of the ABA (full disclosure: I resigned my membership over its endorsement of abortion years ago) have decided to embrace the PC culture in full force adopting a rule that brings PC not only into the practice of law, but into other areas of a lawyer’s life that may be related to the practice of law, such as teaching or serving on a panel discussing social and moral evils.
The PC hammer is ABA Model Rule 8.4(g), adopted last August by the House of Delegates which, under the right circumstances, might cause a lawyer who expresses a non-politically correct (or Christian) opinion on any social issue to face disciplinary action by the bar. A rule that is so reactionary in its ability to muzzle lawyers that former U. S. Attorney General Edwin Meese and Kelly Shackelford, president and CEO of First Liberty Institute, a public affairs law firm dedicated to protecting religious freedom, among others, lobbied the ABA — unsuccessfully — not to adopt the rule.
Let’s start from a very basic point. Free speech rights under the First Amendment are not absolute. There are plenty of restraints on that freedom: You can’t yell “fire” in a crowded theater, you can’t libel a person or misrepresent the goods you are selling. And for the lawyer there are additional restrictions which, as they say, go with the territory. We can’t say certain things to a jury, or make misleading statements to a judge. Information that we receive confidentially we cannot disclose. And to preserve a person’s right to a fair and impartial trial we can be placed under gag orders limiting what we can say publicly about a pending case, if we can say anything at all.
Prior to the adoption of the new rule, the ABA model rules prohibited attorney conduct in three areas: 1) Conduct during the practice of law or representing a client; 2) conduct that reflects on an attorney’s fitness to practice law; and, 3) conduct prejudicing the administration of justice. Lawyers running afoul of these provisions could be reprimanded, suspended from practice, or disbarred.
The primary concern in this context is number one above, conduct during the practice of law or in representing a client that has now been extended to cover all “conduct related to the practice of law.” And it is that extension that has created a firestorm of reaction — not only among practicing attorneys, but legal commentators and professors as well.
The text of the offending part of the rule reads as follows: “It is professional misconduct for a lawyer to:…(g) 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.” Thus an attorney can be disciplined for conduct unrelated to representation of a client so long as it is related to the practice of law.
According to leading legal experts, here is a list of some of the things that an attorney could do, related to the practice of law, which might cause disciplinary action against him:
Attending or promoting a Red Mass — a Mass celebrated annually for judges, lawyers, law school professors, law students, and government officials
Giving advice on moral matters where Christian values and societal principles clash.
Statements made by a law professor in the classroom; or by a participant in a continuing legal education seminar (a statement such as “all lives matter”), in a newspaper op-ed column, in a radio or television appearance, or even in a social media post.
Serving on a board of a religious or charitable activity, a fraternity or sorority.
Working in ministry or political organizations.
Having gender specific restrooms in the office.
And, of course, the list could go on. In short, the danger posed is that an attorney could be subject to disciplinary action by an entity that has the power to end the attorney’s career by revoking his or her license to practice. Naturally, that will tend to chill lawyers’ speech since any “aggrieved” person, with or without merit, can file a complaint that could cost the lawyer thousands of dollars to defend, even if the complaint is subsequently dismissed.
But the problems don’t end there. Under most state rules, professional codes of conduct provide a basis of standards of practice by the professional in civil matters. Thus the “offending” attorney could be sued in a civil court for words spoken during a television interview by any aggrieved individual; client or not, employee or not, acquainted with the attorney or not, again costing the lawyer and his or her firm thousands of dollars to defend.
How might that affect someone like me, a deacon who regularly speaks on moral issues and has a radio talk show that deals specifically with legal issues and their effects on the faithful? Hopefully, we won’t have to face that problem, but there is no guarantee we won’t.
There is one silver lining in this matter. The ABA model rules are not automatically effective. They are just that: model rules. In order to become effective, a state must adopt a rule as part of its own state regulation of attorneys. Thus far, in light of the concerns raised over this rule, there has been a general reluctance for states to adopt the new rule; most states seem happy with their current rules and those that are considering the model rule have generally taken a wait and see attitude.
But even in this “silver lining” there are still a few dark clouds. Prospective attorneys seeking a bar admission — in nearly all states — are required to pass a bar examination. On that examination there will be questions about professional ethics that, since the test is a uniform multi-state examination, will be based upon the ABA model rules. Thus, law schools across the nation will be teaching their ethics classes from the model rules which include the new 8.4(g) verbiage, shaping the minds of future bar leaders and judges.
The other dark cloud is that in a civil case a plaintiff may argue that the proper standard by which to judge a lawyer is contained in the ABA rules, which it will be argued, represent the professional standards nationwide rather than an outdated standard adopted by the state for “purely parochial” reasons.
Of course, the fact that there is little effort to adopt the new rule in most states doesn’t mean that there won’t be an attempt later, especially as new lawyers, schooled in the purpose of the new rule (according to the ABA, to promote a “cultural shift” in the United States) take their places in their local bar associations and begin to explore politically correct ways to foment that cultural shift.
Perhaps this is the PC version of Shakespeare’s Dick the Butcher (Henry VI, Part II): “The first thing we do, let’s kill all the lawyers.” Or at least shut them up, the non-PC ones, anyway.
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