Last week the American Bar Association (ABA) changed its model ethics rules for lawyers, prohibiting attorneys from engaging in speech or being a member of any organization — even churches — that holds traditional views on marriage, sexuality and other issues. It now goes to each state’s courts for consideration, which must emphatically reject Model Rule 8.4 as an unprecedented threat to religious liberty, both for attorneys and their clients.
The ABA adopted Model Rule 8.4, which makes it unethical — and thus something for which a lawyer could lose his or her license to practice law — to “discriminate on the basis of sexual orientation, gender identity or socioeconomic status in conduct related to the practice of law.”
The rule’s official comments sweepingly interpret discrimination “related” to practicing law to include “verbal conduct” and “business or social activities.” Anything a lawyer says to another person — whether speaking in church or over dinner — sharing his viewpoints on same-sex marriage, transgenderism, Black Lives Matter or illegal immigration, would enable any hearer to file a complaint with the state bar authority.
Indeed, a lawyer’s church membership and worship activities are “social activities.” Churches that are evangelical, Roman Catholic or numerous other faiths (such as Orthodox Jews), have official doctrinal positions that marriage is between one man with one woman and that God purposefully creates each person with a fixed biological sex. Many churches also have certain views about socioeconomic issues. A liberal activist could file a complaint based solely upon such membership or participation, or even casual discussions over coffee.
The speaker could then be punished by the state’s bar, possibly losing his or her law license. Even if the complaint ultimately fails, the effects are devastating. Any person can file an ethics complaint against a lawyer. Any plausible complaint can precipitate a formal investigation by a state supreme court, requiring the lawyer to spend thousands of dollars on legal representation, attend hearings, and create a permanent public record that the lawyer was officially investigated for potentially unethical conduct. Bar complaints are toxic to any lawyer’s business and career.
The ABA is a private organization with 400,000 members; most of America’s 1.3 million lawyers are not part of the ABA. But while licenses to practice law are granted by each state’s judiciary, most state bars fashion their ethics rules after the ABA’s model rules, or adopt ABA rules outright.
A lawyer who loses a license can no longer earn a living, either in private practice or working for a law firm or company performing legal work. This fuses economic and social issues. Nobody should want to ban any productive adult from being economically self-sufficient; everyone needs the ability to work at a job to support his or her family.
Nor do we want to destroy any citizen’s constitutionally protected freedoms of speech and religion, or for people of faith to go unprotected when religious or moral values are threatened because lawyers fear to represent them.
Frighteningly, the ABA leaders’ statements verify that they understand — and intend — the ramifications of Model Rule 8.4. President Paulette Brown advocates that the ABA must prevent “bias” in ways that go far beyond current law. Committee member Drucilla Ramey insists bar authorities go “to the top of the legal profession” to “incentivize” attorneys to change their views and speech on these issues, views and speech often informed by attorneys’ religion. All this, despite committee testimony that such a rule has “little relation to concerns” arising in most lawyers’ offices, could be “used tactically against someone inappropriately,” and will “have a chilling effect on something that has always been in the best traditions of the bar: representing minority views and unpopular positions or clients.”
The purpose of our legal system is to ensure freedom. Popular speech rarely needs legal protection. The law protects dissenters’ right to disagree with governmental orthodoxy. It must not become a weapon to oppress those dissenters.
We must launch a nationwide campaign encouraging each state’s judiciary to reject such a requirement, and litigate in federal court if necessary. State supreme courts and state bars are government actors, bound by the First Amendment rights of free speech, freedom of association, and free exercise of religion. This rule grossly violates all of those fundamental rights.
The ABA’s un-American censorship regime is beyond draconian; it coerces conformity regarding religious and political beliefs on a level unprecedented in American history. It borders on fascism, and must be explicitly repudiated.
• Edwin Meese III was the 75th attorney general of the United States. Kelly J. Shackelford is president and CEO of First Liberty Institute.