The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2016, the American Bar Association proposed a new ethical rule for lawyers, 8.4(g) (plus the official comment). Many, including me, have argued that this rule, if adopted, would create an unconstitutional speech code for lawyers—and one that extends not just to speech in court or in other litigation activities, but also to "bar association, business or social activities in connection with the practice of law" (in the words of the official comment):
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.
As I've argued, the restriction is potentially very broad:
Say that some lawyers put on a Continuing Legal Education event that included a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side said something that was critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar:
[1.] He has engaged in "verbal … conduct" that "manifests bias or prejudice" toward gays, Muslims or transgender people.
[2.] Some people view such statements as "harmful"; those people may well include bar authorities.
[3.] This was done in an activity "in connection with the practice of law"—Continuing Legal Education events are certainly connected with the practice of law. (The event could be labeled a bar activity, if it's organized through a local bar association, or a business activity.)
[4.] The statement isn't about one person in particular (though it could be—say the debater says something critical about a specific political activist or religious figure based on that person's sexual orientation, religion or gender identity). But "anti-harassment … case law" has read "harassment" as potentially covering statements about a group generally, even when they aren't said to or about a particular offended person, and the rule is broad enough to cover statements about "others" as groups and not just as individuals. Indeed, one of the comments to the rule originally read "Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups." But the italicized text was deleted, further reaffirming that the statement didn't have to be focused on any particular person.
Or say that you're at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters—Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint.
Again, you've engaged in "verbal … conduct" that the bar may see as "manifest[ing] bias or prejudice" and thus as "harmful." This was at a "social activit[y] in connection with the practice of law." The state bar, if it adopts this rule, might thus discipline you for your "harassment." And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you're fine; if you express the contrary viewpoints, you're risking disciplinary action.
This also goes beyond existing hostile-work-environment harassment law under Title VII and similar state statutes. That law itself has potential First Amendment problems, as I've argued and as some courts have recognized (though others have disagreed); see, for instance, the recent "Don't Tread on Me" controversy. But in most states, it doesn't include sexual orientation, gender identity, marital status or socioeconomic status. It also generally doesn't cover social activities at which co-workers aren't present; but under the proposed rule, even a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.
And now we have a data point about the kind of speech that the proposal's supporters—here, Lambda Legal, one of the leading gay rights litigation organizations—want to restrict. The Arizona Bar is considering the proposal (for my statement opposing it, see here), and Lambda just submitted a statement in support. And here is one of the examples it gave, which I take it is an example of the kind of speech the Rule is intended to forbid:
In 2017, Lambda Legal assisted a transgender woman with addressing discriminatory treatment she experienced when in a Georgia municipal court regarding a traffic ticket. The prosecuting attorney in the case repeatedly referred to her as "he" and "him" when addressing or speaking about her. Prior to the hearing, he took her aside in a small room with four other people who were not identified to her to discuss the case. He then asked her whether she'd "had the full surgery," an inquiry about genital surgery. This experience was humiliating and dangerous for her. Violence directed at LGBTQ people has seen an increase in recent years. In 2016, among LGBTQ hate-motivated homicide victims, transgender women of color made up the majority of victims in the U.S. The attorney in this case purposefully disclosed the woman's transgender status to everyone within earshot and refused to acknowledge a core aspect of her identity. The judge presiding over this case did not take steps to address the misgendering and disrespectful treatment. Lambda Legal brought this matter directly to the attention of the judge, who responded with an acknowledgment of her responsibilities and assurances that any future misgendering or other disrespectful treatment directed to transgender people in her courtroom would be promptly and appropriately addressed.
Now if the rule were only aimed at restricting lawyer speech—especially government lawyer speech—in the courtroom, then it would certainly be constitutional as part of the court system's power to control speech in the courtroom (which is necessarily constrained by all sorts of rules, whether of evidence or of professional responsibility). The same might extend to speech in the pretrial litigation process. (How the legal system should reconcile some people's desire to be referred to using particular pronouns with some lawyers' desire not to be compelled to say things that they think are factually false is a complicated question, but I think courts would rightly have considerable discretion in setting the rules there.)
But the rule is deliberately not limited to speech that is part of the legal process; indeed, many states have such rules that ban discrimination and harassment within that process, and the ABA expressly went beyond that. The rule expressly covers speech engaged in while "participating in bar association, business or social activities in connection with the practice of law," and would thus cover Continuing Legal Education panels, political discussions over dinner at bar functions, and so on.
If you think X is really a man, but X identifies as a woman, and in a CLE or bar association debate on transgender rights you refer to X as "he," then under 8.4—as read by its supporters at Lambda Legal—you would be subject to bar discipline. Likewise if you're engaging in the same discussion in a social event at a lawyers' conference. After all, in Lambda's words, that is "misgendering and disrespectful treatment," and the comment to the Rule expressly says the rule covers "harmful verbal … conduct that manifests bias or prejudice." Better go along with with the pronoun orthodoxy, including in debates and in social events. And while Lambda Legal's response focuses on an example where "he" was used to refer to someone who identifies as female, presumably the same logic would apply if people didn't use other preferred pronouns, whether "they" to refer to people who insist on that, or "ze" or "hir" or whatever else to refer to people who insist on that.
Now I think that the ethical question of what pronouns to use for people who don't fit within the usual clearly-male-"he" / clearly-female-"she" mold is a complicated one. My tentative personal inclination is to go along with people's preferences as to "he" or "she," but to balk at "they" and at more innovative pronouns; but I'm not sure about the right answer, and I think it's worth discussing what it should be. As I said, the preferences of those who are being referred to surely count for something. But so do the preferences of those who are deciding which words to say, especially if they think certain words represent what they view as falsehoods (e.g., using "he" to refer to someone who the speaker thinks is not really male, under the speaker's understanding of the meaning of "male").
But I don't think this is something that the law, or the legally enforceable rules of a profession, should force on people, at least outside the courtroom and related aspects of the legal process. It certainly isn't something that should be expressly extended to "social" activities, even those "in connection with the practice of law," or to bar association panels or debates. Yet the logic of Lambda Legal's comments suggests that, if 8.4 is adopted, that is exactly what could end up happening.