March 29, 2013
Imposing the “Protected Class” on Attorneys? Why Rules of Professional Conduct Should Focus on “Justice,” rather than Social Engineering
Scott Friedman and Carol M. Swain
America often turns to its lawyers to resolve conflicts – from social issues such as same-sex marriage to business disputes gone awry. Recognizing that men are not angels, our adversarial legal system wisely places constraints on a lawyer’s zealous advocacy, namely in the form of Rules of Professional Conduct. For example, lawyers know to recuse themselves when there is a clear conflict of interests. In Tennessee, threatening the administration of justice is a seemingly harmless rule proposal prohibiting lawyers from engaging in “conduct, in a professional capacity, manifesting prejudice or bias.” What seems like an innocent, well-meaning proposal to modify Rule 8.4 is actually an effort to engage in social engineering in a manner that does not strengthen the integrity of the system, in fact it could lead to frivolous lawsuits and mischief.
State rules of professional responsibility provide a non-exhaustive framework for the ethical practice of law, including rules similar to the one above. Tennessee’s Board of Professional Responsibility (Board), for example, is charged with “assisting the legal profession to maintain high standards of skill and conduct.”
But why should the public care about attorneys’ internal regulations on professional misconduct? As consumers of legal services, the public should take a keen interest in the limitations on conduct for which, if violated, our advisors, advocates, and negotiators may be disciplined, especially since this may affect their professional capacity. But besides this obvious answer, part of what seems to motivate these rules is public perception. In Tennessee, the controversial Rule 8.4 amendment proposal suggests that attorneys should embrace the “protected class” – including the non-traditional ones of sexual orientation and socio-economic status. A protected class is a concept found in federal anti-discrimination law designed to protect individuals from discrimination based on factors like race, ethnicity, national origin, religion, color, and familial status. Now the big push is to add sexual orientation and other groups deemed deserving of protection.
The paradigm of appropriate behavior vis-à-vis homosexuality is shifting to preclude outward dissension, but extending this embrace to attorneys seems contrary to the fair administration of justice.
Encouraging lawyers to play nice with fellow lawyers, their clients, and the judiciary is one thing; mandating impartiality in accepting clients or in advocacy along these dimensions is an entirely new and dangerous proposition. The current rule 8.4 in Tennessee, which tracks the equivalent from the ABA Model Rules – a standard adopted broadly across the country – disciplines conduct prejudicial to the administration of justice. Only does a comment to the Rule indicate that knowing manifestations of “bias or prejudice” when such conduct is “prejudicial to the administration of justice” violate the rule. Whereas comments are intended as guides to interpretation, the text of each Rule is authoritative so Tennessee’s seemingly innocuous rule change has real consequences.
The language at issue reads as follows: ““It is professional misconduct for a lawyer to: . . . (h) engage in conduct, in a professional capacity, manifesting bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status. Legitimate advocacy respecting the foregoing factors does not violate this provision.”
In addition, the Board then proposes that Comment  to the Rule be amended to read: “ A lawyer who declines to represent a person based on his or her inability to pay the lawyer’s fee does not violate paragraph (h).”
All the words used to describe troublesome government regulations and statutes fit the above language: ambiguous, vague, overly broad, short-sighted, etc. The proposed Rule change addresses all conduct undertaken “in a professional capacity,” expanding its scope to the point where a lawyer can apparently no longer choose their clients. Moreover, the proposed comment 3 underlines the limits on a lawyer’s ability to decline representation. It carves an exception for persons who cannot afford the lawyer’s services while supporting a violation when a lawyer turns away a client based on sexual orientation, for example. The safe harbor for “legitimate advocacy” offers little reassurance. What is legitimate advocacy can easily depend on which side of an issue a person falls.
Imagine the lawyer who argues against adding sexual orientation to the official list of protected classes. (In Tennessee, this is unsettled.) The employment law case centers on whether discrimination based upon sexual orientation should be illegal. Despite the intent of the lawyer to zealously advocate for his client, the effect of the action could be “manifesting prejudice or bias.” The proposed Rule infringes the lawyer’s constitutional right to free speech since lawyers would operate under the cloud of a standard imposing discipline for “illegitimate” words judged to demonstrate prejudice or bias. Lawyers – our advocates –are the last group a society wants operating in fear of speaking out.
If adopted in its present form, Rule 8.4 would clash with other logical ABA Rules of Professional Conduct. The lawyer retains the prerogative to withdraw from representation if a “client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” Lawyers also have an obligation to “exercise independent professional judgment and render candid advice…[by referring] not only to law but to other considerations such as moral, economic, social and political factors.”
Equally important, if the intent behind the proposed Rule was merely to ensure attorneys act respectfully towards a diverse group of people — and not to impose cultural change — the Rules already provide such a protection. Lawyers “shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” Other avenues exist for a wronged party to seek redress, namely lawsuits for ineffective assistance of counsel, defamation, etc.
Broadening the scope of covered conduct and incorporating the group of so-called “protected classes” into Rule 8.4 irrationally alters its fundamental purpose to assure the “administration of justice.” The Rule also would have unintended consequences, including subjecting attorneys to a stream of disciplinary complaints. If adopted, the Rule would make it easier for disgruntled parties to file “viable” complaints with the Board. Though these complaints are not normally in the public record, attorneys must disclose such complaints to legal malpractice insurers who hike rates upon disclosure of a complaint, regardless of its merit.
The biggest consequence of adopting this rule – imposing cultural change on attorneys – may have been intended. Somehow the proposed Amendment to Rule 8.4 ignores the traditional and legal authority of an attorney to maintain his own convictions and give a voice to those with whom he feels comfortable representing. “The pace of cultural change seems to be accelerating and those who maintain traditional perspectives on matters such as sexuality and the family are under increasing pressure to compromise those values to find acceptance.” This Rule opens the door to attacks against so-called illegitimate views against homosexuality and a host of others. The Board of Professional Responsibility should stick to rules of conduct fostering the fair “administration of justice” – not social engineering; thus, we vehemently object to the Board’s proposed Amendment to Rule 8.4 of the Tennessee Code of Professional Conduct.
Scott Friedman is a third-year student at Vanderbilt Law School and American Bar Association member.
Carol M. Swain, Professor of Political Science and Professor of Law at Vanderbilt University, is the host of the Be the People Television Show and is author of Be the People: A Call to Reclaim America’s Faith and Promise.