More Speech Rules from the ABA?

Lawyers. Hardly poor cobblers are we; as a profession that deals in the arcana of regulation we seem to delight in larding ever more regulation upon ourselves. The attitude of our profession might be summarized as “if a little regulation is good, then surely more regulation is even better!”

So if diversity — and the encouragement thereof — is a good thing, then the reaction of many in the profession is: let’s have a regulation that requires that. Or, at least, that requires lawyers to do and say things that are supportive of diversity. That’s the core of a proposed new ABA Model Rule 8.5.

It should come as little surprise that I’m skeptical of proposals that add to the weighty-and-crufty mass of rules that govern the practice of law. This is particularly true when it comes to rules that limit or compel professional speech, as this rule would:

As a learned member of society with an ethical obligation to promote the ideal of equality for all members of society, every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession. 

What does “undertake affirmative steps” mean here? It may mean that expression deemed antagonistic to these goals violates the rule. It may also mean that the failure to engage in expression sufficiently observant of these goals violates the rule. Either way, in making orthodox a particular point of view the proposed Rule represents unconstitutional viewpoint discrimination.

Many lawyers will, of course, make some combination of the argument that “diversity is important, and no one is going to interpret the rules this way anyway.” But the first part of that argument is completely irrelevant, while the second part is provably false. We need look no further than the advertising rules to see how far lawyers and the Bars are willing to stretch the regulatory language — and the chilling effect this has on the speech of lawyers and the ability of audiences to hear that speech.

We need fewer rules governing the practice of law, not more. And as proposals such as this continue to proliferate, we need the Supreme Court to firmly establish a professional speech doctrine making it crystal clear that a license to practice law cannot be conditioned on abandoning one’s free speech rights.