Tag Archives: ABA

USA: Gagging Attorneys: A Critical Look at the ABA “Anti-Discrimination” Rule

July 31, 2017

FranklinSpeech

The new ABA Model Rule 8.4(g) prohibits attorneys from engaging in “harmful,” “derogatory,” or “demeaning” speech in any activity “related to the practice of law,” including “bar association, business or social activities.”

Proponents of the rule have advanced several arguments in its favor and raised several defenses in answer to its critics. But these arguments and defenses are unconvincing because they’re based on factual misrepresentations or on mischaracterizations of the rule.

Proponents of the rule summarily dismiss the many claims that it is unconstitutional

Many legal authorities point out that the new rule is unconstitutional. Proponents of the rule simply ignore this ever-increasing chorus of constitutional criticism.

The Texas and South Carolina attorneys general – the only attorneys general to have thus far opined on the rule – have both issued official opinions that it would likely violate the free speech, free association, and free exercise rights of attorneys. Indeed, the South Carolina Supreme Court recently rejected the rule after the South Carolina attorney general issued his opinion against it.

The ABA’s own Standing Committee on Attorney Discipline, as well as the Professional Responsibility Committee of the ABA Business Law Section, warned the ABA that the new Rule may violate attorneys’ First Amendment speech rights.

And prominent legal scholars – such as UCLA constitutional law professor Eugene Volokh, Chapman University constitutional law and legal ethics professor Ronald Rotunda [By Subscription], and former U.S. Attorney General Edwin Meese, III – have all opined that the new rule is constitutionally infirm.

http://www.jurist.org/forum/2017/07/bradley-abramson-aba-rule.php

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USA: Disciplining Lawyers for Harassment and Discrimination: A Time for Change

July 11, 2017

americanbar_MagnaCarta

The American Bar Association (ABA) has proposed a model rule to discipline lawyers who in the practice of law harass or discriminate, by speech or conduct, on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. This proposed rule constitutes Rule 8.4(g) of the Model Rules of Professional Conduct (the Rule). Since each state drafts its own rules of professional conduct for lawyers, each state is free to adopt with or without amendments, or not to adopt any proposed rule.

This commentary urges state legislatures, state bars, and state supreme courts to seriously consider the adoption of the Rule and reject the misguiding assertions that the proposed rule violates the lawyers’ First Amendment rights of free speech, free exercise of religion, and freedom of association. The Nevada Supreme Court has scheduled a public hearing on July 17, 2017 to determine whether Nevada should adopt the Rule.

Rule’s Rationale

As a matter of policy, the Rule assures that the legal profession functions for all participants, including vulnerable groups, such as racial and sexual minorities and persons with disabilities. Inclusion and accountability, rather than exclusion and immunity, are the core values the Rule seeks to protect.

The Rule democratizes access to all persons involved in the legal profession to play their assigned roles without fear of harassment and discrimination. No lawyer –partner or associate, renowned or unknown — has any constitutional or statutory right in the practice of law to harass clients, witnesses, judges, court officials, support staff at the law firm, or colleagues on the basis of race, color, religion, national origin, gender, or any other unlawful classification. Nor does a lawyer have any constitutional or statutory right to engage in unlawful discrimination in the employment of new lawyers and staff.

http://www.jurist.org/forum/2017/07/ali-kahn-aba-rule-change.php

https://www.americanbar.org/publications/youraba/2016/september-2016/aba-adopts-anti-discrimination-rule-8-4-g–at-annual-meeting-in-.html

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct.html

https://www.courts.state.co.us/userfiles/file/Court_Probation/01st_Judicial_District/Feb_%2024%2C%202017%20Additional%20Meeting%20Material.pdf

https://www.sdcba.org/index.cfm?pg=FTR-Oct-2016-2

Turkey/USA: Annual Meeting 2016: ABA supports the independence of the judiciary and the legal profession in Turkey

August 9, 2016

The House of Delegates approves resolution 10B calling on the Government of Turkey to hold fair, impartial hearings before suspending any lawyer or judge from the bar or tribunal; and to commit to protect human rights during the 2016 Annual Meeting session on Aug. 9 in San Francisco. The resolution supports the independence of the judiciary and the legal profession and opposes any nation’s detention of individuals without charge or access to counsel.

http://www.americanbar.org/news/abanews/aba-news-archives/2016/08/annual_meeting_20165.html (VIDEO)

http://www.americanbar.org/content/dam/aba/images/abanews/2016%20Annual%20Resolutions/10b.pdf (RESOLUTION)