This is the kind of thing I keep talking about: that orthodox Christians are going to be de facto excluded from entire professions through licensing and related requirements. We have to fight it whenever and wherever we can. Eugene Volokh is not a Christian, but he’s a staunch free speech and expression advocate, so he can be counted on to take a strong stand. What about liberal lawyers? The fact that something this outrageous passed the ABA is not a good sign.

Well, it has happened. Law professor Eugene Volokh blogs about the latest move from the American Bar Association. In this excerpt, Volokh quotes from a new provision in the ABA’s Model Rules of Professional Conduct, described by Volokh as “an influential document that many states have adopted as binding on lawyers in their state.” In the passage below, the boldfaced parts were highlighted by Volokh:

It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.

Discrimination and harassment . . . includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing [diverse] employees or sponsoring diverse law student organizations.

Volokh points out that under this rule, a legal education seminar in which a lawyer, in discussing a case or a legal dilemma, said something that could be construed as critical of, say, Muslims, or gays, or transgenders, he could be disciplined by his state bar.

Read More