Unethical Headline Of The Month: The Daily Caller

Dewey Truman

You can hardly publish a more inaccurate. misleading and dumb headline than this one, appearing on the right-wing news and opinion site, over a report by Kevin Daily about the American Bar Association passing a new addition to its Rule 8.4, the ethics rule that defines ethical misconduct, as follows:

It is professional misconduct for a lawyer to: . . . (g) knowingly harass or discriminate against persons, on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status, while engaged [in conduct related to] [in] the practice of law.

Now here is the headline:

Lawyer Lobby Will Now Disbar You For Making An Off Color Remark

And here is how unconscionably misleading and absurd it is:

“Lawyer Lobby”: The American Bar Association is a lawyer’s professional association, and sure, it does some lobbying. However, lobbying is a small, small proportion of its activities. [ Full disclosure: I usually do a couple of ethics seminars for the ABA every year.] Calling it  a lobby suggest that the ABA is primarily political, which it is not. The ABA publishes books, holds educational events, provides indispensable legal assistance to all branches of the profession, facilitates networking, issues critical legal ethics opinions, and many other useful and important services for lawyers.  One reason the ABA doesn’t lobby much is because it represents all kinds of lawyers, and being lawyers, they don’t agree on many issues.Prosecutors, judges and criminal defense attorneys have very different perspectives; so do plaintiffs lawyers and corporate attorneys. “Lawyer Lobby” is an inept and misleading description of the ABA.

“Will Now”: No. Not even close. The proper wording would be “NEVER has, can or will.” The ABA isn’t a bar, and can’t disbar anyone. Any lawyer can belong to the ABA, but the ABA doesn’t have any say in who practices law. The Robert DeNiro “Cape Fear” had an embarrassing line where a lawyer played by Gregory Peck, who should have known better, talks about making an ethics complaint to the ABA to get Nick Nolte’s character “disbarred.” Embarrassing. This part of the headline affirmatively makes Daily Caller readers stupid.

“Disbar You”: Violating the ethics rules seldom results in discipline, much less disbarment. A one-time violation has to be very serious to result in any kind of discipline, and the standard for disbarment is that the lawyer’s conduct makes him or her appear untrustworthy or dishonest to the extent that there are doubts about the lawyer’s fitness to practice law. Maybe, if a state adopts this rule, some repeat harasser or blatant  bigot may be disbarred, but I doubt it. Admonished, reprimanded, suspended maybe. There are many forms of bar discipline. This kind of rule is more for guidance and in line with the various bar associations’ role of providing standards to improve the image of lawyer as well as the public’s trust in their fairness and integrity.

“For Making An Off-Color Remark”: Again, never. Never! While IF the ABA ‘s 8.4 g is adopted by a state or states, and IF a bar investigation found that a lawyer’s violation of the rule was so egregious that it warranted disbarment, the offense prompting such a rare and draconian measure would never be something as trivial as an ill-considered “off-color” remark. For one thing, such a punishment, taking away a citizen’s livelihood, would almost certainly prompt a legal appeal on First Amendment grounds, and one that might end up voiding the whole rule.

In summary, every single word in the headline is misleading or wrong. Moreover, the article following  contradicts most of the headline.

This was really hack work, incompetent, disrespectful of readers, dishonest, lazy. It  doesn’t get much worse than this

4 thoughts on “Unethical Headline Of The Month: The Daily Caller

  1. So if a lawyer uses the f word in any context he can be disbarred, right? Not likely. In a divorce case, it would probably get him more clients.

  2. Ridiculous headline for sure. But only in degree — the amendment to 8.4 is in fact a slippery slope. It is a common left-wing tactic to advocate a change by arguing how it is not really that big a change. But it is only a matter of time before some white guy lawyer is strung up on some ridiculous charges based on this change. The First Amendment is of little use against race-based charges once Hillary fills Scalia’s seat.

    The change to 8.4 is unnecessary given the other ethics rules/laws. And in a world where people increasingly want “safe spaces” from those with other views, and confuse differences of opinion or disappointment with racism or sexism, the change is potentially chilling to right of center lawyers who want to candidly discuss racial and other issues. Now every significant attorney decision on client selection, vendor selection, expert witness selection, etc. is potentially subject to the same second-guessing that employment decisions are subject to.

    • I agree with that, Dan. It’s a bad rule, but the ABA is a nest of SWJ’s and was one before anyone started using that term. It’s the main reason, despite its other undeniable virtues and services, that I don’t belong to it.

      I am certain that only the most egregious violators will face any discipline at all, and the first bar that uses it the way you suggest will prompt other bars to kill it, just like Indiana’s abuse of 8.2 resulted in several bars junking it.

      True, I belong to two bars that are famous for not taking cues from the ABA, but I don’t expect this rule to be widely adopted. Sensible lawyers tend to hate it: I’ve been talking about it in seminars in my “current developments” section for a while. You know such rules are often ignored by the states, and this one is especially bad.

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