Gavel In The Opposition
August 11th, 2016 – The American Bar Association is keeping the conversation of gender equality and freedom of speech in the headlines with their recent ruling. After the ABA House of Delegates meeting Monday in San Fransisco, a resolution was passed which now makes it professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination” on the basis of race, sex, religion and gender identity to name a few. The initial discussions focused heavily on the harassment and discrimination of women after many female attorneys spoke up about the often used “honeys” and “darlings” in a derogatory manner.
Proponents of the new standard argued that the demeaning use of words and actions undermine competing counsel and are then met with no consequences. A judge ruling over a case where a male lawyer told a female lawyer in court to not raise her voice at him because it’s not becoming of a woman said this behavior “endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.”
Judge Paul S. Grewal followed up by saying “a sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common.”
The ABA acknowledged receipt of letters from conservative attorneys and organizations arguing that the rule harms free speech and religious freedoms. One particular op-ed also ran in the National Law Journal and claimed that the resolution was driven by “PC politics rather than professional ability.” The Christian Legal Society voiced many concerns to the proposed amendment to the “Rules of Professional Misconduct” and encouraged followers to reach out to their ABA delegates. At the crux of their argument, they believe that “the rule still operates as a speech code that will have a chlling effect on lawyers’ legitimate speech.” They also pointed out the potential problems surrounding discipline for attorneys serving on boards of religious institutions and limiting the autonomy of lawyers in accepting and declining representation.
Despite the continuing concerns, the ABA said that there were no speakers present at the vote who were in opposition. And during the final voice vote the ruling clearly passed. One attorney who was pleased with the outcome but believes the law still has a long way to go is Adria East Mossing, partner at Chicago’s Mossing & Navarre and president of the Women’s Bar Association of Illinois. She had the following to say to the Chicago Tribune:
“It brings awareness to the issue and holds feet to the fire,” she said. “It’s not just (discrimination) against women. It’s a multitude of groups. And sometimes it takes knowing these rules exist to bring up the discussion and (make clear) this is not appropriate conduct and you need to be aware if you act like that, you will be held responsible.”
Nearly two dozen state bars and the District of Columbia already had similar rules of conduct in place. Is It Funny or Offensive spoke with past president of State Bar of Georgia Ken Shigley Sr. who pointed out that ultimately State Bar organizations in each state consider the ABA model rules and recommends adoption, rejection or modification. “In Georgia, we adopted a version of the 2000 edition of ABA model rules about 2011,” he said. “I was on the committee that spent 2 or 3 years combing through the long document line by line. We modified several of the model rules. Those rules were eventually approved by the State Bar Board of Governors and the Supreme Court of Georgia, which has the final say.”
Do you think the American Bar Association resolution is a long-needed win in the fight against discrimination or is this another example of PC politics infringing upon freedom of speech? Let us know your thoughts in the comments section below.