March 29, 2013

 Imposing the “Protected Class” on Attorneys? Why Rules of Professional Conduct Should Focus on “Justice,” rather than Social Engineering

By

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 [3] to the Rule be amended to read: “[3] 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.

The organization’s status began to change during the spring of 2011, when the University Administration informed CLS and three other religious groups (Fellowship of Christian Athletes, Graduate Christian Fellowship, and Beta Upsilon Chi, a Christian fraternity) that they would lose university recognition unless they agreed to a new policy stipulating that religious groups could no longer require their leaders to share their beliefs.  More specifically, the new policy was interpreted by administrators to mean that Christian groups could no longer expect their leaders to head Bible studies or worship.  The new policy contained no provisions for addressing situations where leaders change their beliefs, reject biblical lifestyles, or embrace atheism.  Initially, CLS sought to comply with the University’s new policy by making appropriate changes to its constitution, such as the removal of verses of Scripture regarding biblical lifestyles. Unfortunately, these concessions were not enough to appease the university.

After several rounds of having its revisions rejected, CLS joined forces with other Christian ministries who sought to persuade the university to reinstate its longstanding policy of granting allowing religious groups to have religious leadership requirements.  Meetings with University officials, who announced with the introduction of the policy that it was non-negotiable, were to no avail. Our efforts to set up meetings with members of the Board of Trust were thwarted at every turn, as university administrators refused to deliver materials and letters that would have helped Board members understand the issues at stake.  Throughout the process, the University repeatedly changed its explanation of the policy and what it was designed to accomplish.  After months of framing the issue around its “non-discrimination” policy, the university made a sudden switch and began referring to the new policy as an “all-comers.”

In the spring of 2012, CLS and 13 other Christian groups at Vanderbilt applied for organizational status with constitutions that included affirmations of faith.  As expected, the university refused to approve the applications of the groups who stated that their faith required them to have leaders who shared their beliefs.  After the University rejected their applications, 14 of these groups lost the rights and privileges of registered student organizations. These now unregistered groups are paying a high price for their decision to preserve the integrity of their religious beliefs.  On the Vanderbilt campus, unregistered groups can no longer use the University’s mail server to announce their meetings.  They cannot post notices on bulletin boards,   co-sponsor events with other student organizations, or participate in interfaith activities and student fairs.

Vanderbilt University’s intolerance of and open hostility toward these unregistered groups means that they cannot operate effectively as student organizations.  When Vanderbilt’s efforts to exclude the religious groups began, it was estimated that one-third of the student body had had an affiliation with one or more of the unregistered groups.  But, as a result of Vanderbilt’s actions, their numbers have shrunk. They must operate underground when recruiting new members and making others aware of what their organizations have to offer.  If the current trend continues, these organizations may cease to exist in a few years.

Vanderbilt must be held accountable for its decision to trample upon the civil liberties of its students in the name of political correctness. The University’s new policy runs counter to any notion of a university being a marketplace of ideas.  Moreover, it sends to students the chilling message that Vanderbilt’s leaders have the right to unilaterally decide which ideas the university will tolerate and affirm. Through this policy and its targeted application, the University is openly discriminating against Bible-believing religious organizations and perpetrating a troubling double standard by creating elitist exceptions to its “all-comers” policy.

We should be especially troubled that an institution of higher education, irrespective of whether it is public or private, would show open contempt for the foundational principles of religious liberty found in the First Amendment of the U.S. Constitution.  Vanderbilt is a private institution, but its students should not have to check their constitutional rights at the door when they matriculate at the university.  Students at private universities should be taught by educators who model a healthy respect for our basic civil liberties. Even while asserting its liberties as a private institution, Vanderbilt receives over half a billion dollars in federal funds and over 24 million dollars in state funds; its university police are clothed by the state and possess the same police powers as other governmental entities. Therefore, Vanderbilt should be held accountable as a state actor and should not be allowed to feed at the public trough at the same time as it openly discriminates against a significant percentage of its student body.

Although the main focus of my statement is on the rights of students, the University also took action last year that stripped faculty of their freedom of religious expression. Ostensibly, this was done to bring the faculty handbook into alignment with the student handbook.  After first removing language that protected the religious freedom of students, the University took the additional step of removing protections that faculty have enjoyed for decades that were in addition to Title VII’s statutory protections against religious discrimination.  The question arises.  Why would a major university engage in such actions?  We have been told that Vanderbilt hopes to become a model for other universities around the country who find the presence of conservative Christian organizations an unwelcome entity on their campuses, as university administrators advance a new morality of unbridled secularism.

I am encouraged by the U.S. Civil Rights Commission’s decision to investigate the discrimination taking place at Vanderbilt University and other campuses across the nation.  I hope that this information will be helpful as the Commission pursues its investigations.

Links to Supporting Information

Vanderbilt’s e-mail to CLS chapter president

http://www.clsnet.org/document.doc?id=268

Vanderbilt orders group to drop allegiance to Jesus Christ

http://www.clsnet.org/page.aspx?pid=791

Vanderbilt’s 2010/2011 Student Handbook protected religious liberty

http://www.vanderbilt.edu/student_handbook/2010-2011/101208/?page_id=4#equal

Vanderbilt’s 2010/2011 handbook eliminated religious protections

http://www.vanderbilt.edu/student_handbook/2011-2012/110902/university-policies-and-regulations#equal

Vanderbilt’s new policy for student groups

http://www.vanderbilt.edu/studentorganizations/

(LEBANON, TN) – After much debate and input from constituents, State Representative Mark Pody (R- Lebanon) has taken HB­­1150 off notice in the House.  The intent of this legislation was to protect students against discrimination on the basis of religion.  Private institutions enjoy special privileges granted to them by the state.  Some receive millions of taxpayer dollars and they have been granted full police powers from the State of Tennessee. This would seem to make them state actors rather than merely private institutions.  With these state granted privileges should come a higher level of accountability and scrutiny. Based on the evidence, Rep Pody believes Vanderbilt University’s “all-comers policy” is a violation  of the Tennessee Constitution, Article 1 section 3 concerning religious freedom.

Rep. Pody has been working diligently on this bill to ensure that it does not exceed the State’s authority.  He has consulted with many people, including Speaker Beth Harwell, who have pointed out potential issues with this legislation in its current form. This resulted in a consultation with the State’s Attorney General.

The purpose of the bill was never to undermine Vanderbilt’s police force. The purpose was to ensure that institutions that discriminated against students and employees would not have special police powers.  The University would have a choice of ending its discrimination or see its police force’s authority returned to what most other private universities have been granted.  Nothing in this legislation was directed at the quality or professionalism of the Vanderbilt police force.

Private Universities cannot operate without some oversight from the State Government.    Rep Mark Pody has plainly stated, “I want to be sure to stand up for our students’ religious rights without overstepping our state authority. At this point, I am still not satisfied with the “all-comers policy” at some private institutions.  However, it needs to be addressed in a different way. I am taking this bill off notice until a more appropriate solution can be found.”

Students at the University should pursue multiple forms of redress.  A judicial option is certainly one of these.  The Legislature will continue to seek a resolution that will protect students from religious discrimination.  It should be treated just as diligently as racial and ethnic discrimination.

BE THE PEOPLE is a new hard-hitting television series directly confronting the hot topic issues facing Americans today.  Featuring one-on-one interviews and panel discussions with influential politicians, businessmen, journalists, celebrities, entertainers and nationally known political pundits, no opinion will go unheard and the truth will prevail.

Hosted by Dr. Carol M. Swain, a frequent guest on Fox News Channel and CNN, “Be the People” is the source to uncover truth, awaken people and restore America.  The show bears the same name as a thought- provoking book written by Swain, who is a professor at the Vanderbilt University School of Law.

New York Times Best Selling Author and Fox News  Channel host, Sean Hannity, says, “Be the People is a courageous analysis of today’s most pressing issues, exposing the deceptions by the cultural elite and urging ‘We the People’ to restore America’s faith and values.”

Representative Lamar Smith (R-TX), Chair of the Committee on the Judiciary for the US House of Representatives, states, “Dr. Swain’s Be the People is an excellent piece of work—a thorough and honest examination of how politics and America’s history intertwine in the real world. Dr. Swain explores many public policy topics. I strongly recommend her chapter on immigration policy and politics; she provides a thoughtful examination of a complex topic that often generates strong feelings.”

Lou Dobbs,  Host of Host, Fox Business Network’s Lou Dobbs Tonight; nationally-syndicated radio host, Lou Dobbs Show and Lou Dobbs Financial Reports , says, “In Be the People Professor Carol Swain thoughtfully examines the biblical roots and religious significance of today’s most pressing issues. Professor Swain shows how to make your voice heard and how to reclaim America’s faith and values.”

Of Dr Swain’s book, Tony Perkins of the Family Council says, “There are many good books but only a few really important ones. Dr. Carol Swain’s Be the People is one of the latter. Brave, informed, candid, and thoughtful, she brings her fine academic mind to bear on the most pressing needs facing our country. She calls on ‘We the People’ to be the people our nation’s founders envisioned, a people united around a common set of moral convictions who have the courage to live them out. Dr. Swain proves that Christian faith and deep patriotism are alive and well and offers a recipe of hope for America’s future.”

Carol Swain’s personal story is one of faith and determination overcoming adversity.  Early in her life she was a high school dropout, a teenage mother, and a low wageworker.  She went on to become a professor at Princeton University and now at Vanderbilt.

The show is airing on midnight, Sundays on WSMV Channel 4, Nashville.

Dr. Carol M. Swain is represented by Eclectic Media Productions National PR Firm and is available for interviews.

Contact:

Shannon Rose

Eclectic Media Productions
info@mediaproductions.tv
(347) 92-STARS or (347) 927-8277

SCOTUS Arizona Immigration Law Decision: Who Wins? (Pt. 2)

Score 1 for the rule of law in America.

The U.S. Supreme Court’s divided decision in Arizona vs. the United States represents a small victory for those concerned about public safety and the need for sovereign nations to maintain control over their borders. The provision allows police officers to check the immigration status of persons suspected of committing crimes. Police officers can ask the individuals they stop for other purposes to show proper documentation to prove that they are in the country legally.

Although the police can report unauthorized persons to the Department of Homeland Security, there is absolutely no guarantee that this will result in the removal of detained persons. In fact, it is more likely that the only people to get in trouble will be the law enforcement personnel who make the report. These individuals will face accusations of racial profiling even when their suspicions were justified.

We have an unfortunate situation in this country. Individuals in the highest echelons of power are disrespecting the Constitution. The President sets the tone for the entire nation. If the President disrespects the Constitution and the rule of law, it sends a signal and sets an example for those who look to him for guidance. Especially troubling are the immigrants we see interviewed who openly flaunt their illegal presence in this country and act as if they are entitled to social welfare benefits, jobs, and education at public expense. By not enforcing our laws, we have taught them how to treat us.

I recently heard an eye-witness account of two illegal aliens from Mexico who were caught shoplifting in a Wal-Mart in Greenfield, California. When they were apprehended by the security guard, one of the men said: “you can’t arrest me, I have protected status.” The shoplifters left the store without being arrested. This incident took place in a sanctuary city where illegal aliens operate by their own rules while law enforcement personnel turn a blind eye to the violence and chaos that ensue.

What many Americans see as mercy, justice, and kindness have harmed us and the illegal aliens among us. We have created an environment that fails legal immigrants and law-abiding citizens who can no longer expect protection from their government. Meanwhile, the people who have entered our country without authorization are protected from the legal consequences of many of the crimes they inflict on our communities.

Unfortunately, we have created a situation where people who have fled the lawlessness of other nations have used our kindness against us. True mercy requires immigrants to respect the laws and cultures of the nations they enter. We contribute to the destruction of our nation and we contribute to the delinquency of law-breakers when we settle for anything less than demanding the best from unauthorized migrants who enter our country for a variety of reasons that include the search for better lifestyles and the escape from corruption and vice.

We are foolish if we fail to acknowledge that scattered among the newcomers are plenty of people who seek to do us harm.

Carol M. Swain

Speaking at Vanderbilt University last week on a forum titled, “Threats to Religious liberty: on Campus, and Across the Nation (YouTube link),” law professor, Michael Paulsen confidently predicted that in the next 5-7 years, the Supreme Court will be forced to step into the fray and reverse its wrong 5-4 decision in CLS v. Martinez.  In the meantime, we need to roll up our sleeves and get ready for a long protracted battle to preserve our civil rights and civil liberties against institutions that seem determined to remake our society into their utopian dream.

Restoring the status quo that prevailed at the University until ten months ago, this
statement reflects the common sense understanding that religious groups should have leaders
who share the groups’ core religious beliefs. Nondiscrimination policies serve important
purposes. But to use a nondiscrimination policy that is supposed to protect religious students to penalize those students actually undermines the University’s nondiscrimination policy and the essential good it serves.
The statement would restore religious liberty and authentic pluralism to campus.

In addition, this brief video contains excellent material about Greek Life and the “all-comers”policy.  (Greek Life-2:20)

Video of Town Hall Meeting

Articles about the Town Hall Meeting:

The Hustler (2/1/2012)

The City Paper (2/1/2012)