The District Of Columbia Bar’s Proposed New Anti-Discrimination And Harassment Rule

In May of 2018, I wrote about the ABA’s new anti-discrimination and harassment rule, 8.4 g, which has been heavily criticized, and, in Tennessee, declared unconstitutional. Here, again, is the text:

“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.”

Undeterred (and as I predicted), the always “woke” District of Columbia Bar is charging ahead with a version of the rule, and asking for comments from members (like me) on its proposed version, which would replace the current, much narrower anti-discrimination rule currently enforced, Rule 9.1. Here is the D.C. draft:

D.C. Rule 9.1 (Nondiscrimination and Antiharassment)

It is professional misconduct for a lawyer, with respect to the practice of law, 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, family responsibility, or socioeconomic status. This Rule does not limit the ability of a lawyer to accept, decline or, in accordance with Rule 1.16, withdraw from a representation. This Rule does not preclude providing legitimate advice or engaging in legitimate advocacy consistent with these Rules.

Hmmmm. Continue reading

Sunday Morning Ethics Warm-Up, 5/6/2018: Moore, Marx, Polls, And #MeToo And Legal Ethics Don’t Mix

Good Morning!

1. Remember, this creep is a popular and influential “progressive.” Here was what Michael Moore tweeted yesterday on Karl Marx’s birthday:

“Happy 200th Birthday Karl Marx! You believed that everyone should have a seat at the table & that the greed of the rich would eventually bring us all down. You believed that everyone deserves a slice of the pie. You knew that the super wealthy were out to grab whatever they could.”

Nobody who spins Marx this way after his abstract theories were used to enslave and kill millions while leaving nations devastated and impoverished is worthy of respect, or indeed anything but horror. Such a statement requires ignorance, delusion, dishonesty or idiocy, probably all three. Moore is the Left’s Richard Spencer.

Birthdays deserving of more public remembrance than Karl’s: Arnold Stange, Harold Staasen, Melody Patterson, and Phil Linz, among others, as well as every world citizen who lived his or her life without playing a role in making the planet more miserable. Continue reading

Calling This Lawyer Unethical And Incompetent Doesn’t Quite Capture His Basic Problem: He’s An Idiot

Defending his client of rape charges, Tennessee criminal defense lawyer Steve Farese told the jury during his closing argument,

“People can be very good at lying. Women can be especially good at it because they’re the weaker sex and we … and we want to protect them and not have anybody take advantage of them at least I do.”

Head-exploding  fact #1: The jury Ferese was appealing to by emphasizing the inherent dishonest nature of  “the weaker sex”  was made up of eleven  women and three men.

Head-exploding  fact #2: The jury still acquitted Ferese’s client.

That doesn’t make his argument ethical. The statement appealing to anti-women bias was a direct ethics violation, a breach of  Tennessee Rule of Professional 8.4 (d) forbidding lawyers from engaging in conduct that is prejudicial to the administration of justice, which deliberately appealing to anti-woman bias clearly is. For the future, the episode also raises questions about whether such a closing would breach the new ABA rule 8.4 g,  yet to be adopted in Tennessee or any state, which states that it is unethical 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.”

The ABA notes specify that “This paragraph  does not preclude legitimate advice or advocacy consistent with these Rules.”

I am certain Ferese’s statement would breach 8.4 (g), not that it isn’t unethical anyway.

Continue reading

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. Continue reading