A New ABA Model Rule 8.5 to Promote Diversity and Inclusion?

"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"

|The Volokh Conspiracy |

David Douglas authored an essay in the ABA Journal, titled "The ethics argument for promoting equality in the profession." He proposes a modification to ABA Model Rule 8.5.

The first portion of the rule would impose a duty on all attorneys to promote diversity and inclusion.

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.

The second portion of the rule is aspirational: lawyers should try to spend at least 20 hours a year to promote diversity and inclusion.

Every lawyer should aspire to devote at least 20 hours per year to efforts to eliminate bias and promote equality, diversity and inclusion in the legal profession. Examples of such efforts include but are not limited to: adopting measures to promote the identification, hiring and advancement of diverse lawyers and legal professionals; attending CLE and non-CLE programs concerning issues of discrimination, explicit and implicit bias, and diversity; and active participation in and financial support of organizations and associations dedicated to remedying bias and promoting equality, diversity and inclusion in the profession.

I have long criticized ABA Model Rule 8.4(g). It imposes an unconstitutional speech code for attorneys. In addition, Rule 8.4(g)'s comment creates a special carve-out for speech that promotes diversity and inclusion:

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.

This comment creates an unconstitutional form of viewpoint discrimination. Eugene Volokh and I discussed this comment in a letter submitted to the Iowa Supreme Court:

Here, the critical language is "conduct undertaken to promote," which in this context obviously includes speech promoting "diversity and inclusion." Yet, this provision explicitly exempts one perspective on a set of divisive issues—affirmative action, alleged systemic prejudice, implicit bias, and the like—while continuing to potentially punish as "harassment" those who promote the opposite perspective. That disparate treatment constitutes unconstitutional viewpoint discrimination.

Consider a debate hosted by a bar association about affirmative action. One speaker promotes racial preferences as a means to advance diversity. His speech would be entirely protected under the proposed amendments. Another speaker critiques racial preferences in ways that some people view as racially "offensive." His speech would not be protected under the proposed amendments.

The proposed ABA Model Rule 8.5 would suffer the same problem as the comment from 8.4(g). The Rule adopts a specific philosophical viewpoint–promoting diversity and inclusion–and makes it the orthodoxy for attorneys. Under this proposed rule, those who do not adopt that philosophy will be violating a "duty" and "ethical obligation." Those who choose not to attend certain CLE classes would now be disregarding an aspirational goal.

Scott Greenfield pithily encapsulates the problem with this proposed rule:

You want to be a hero to the cause? Go for it. I'm just a lawyer trying to save lives one at a time.

Not every attorney agrees that "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." Far too many attorneys–especially academics–take this statement as an unassailable fact of life. It's not.

Bar associations exist to promote and regulate the legal profession. They do not exist to promote specific ideologies. Indeed, they lack the power to promote ideologies. In my article, I discuss the limits on this authority:

As speech bears a weaker and weaker connection to the delivery of legal services, the bar's justification in regulating it becomes less and less compelling. The bar lacks a sufficiently compelling interest to censor an attorney who makes a remark deemed "demeaning" at a CLE lecture, or makes a comment viewed as "derogatory" at the dinner table during a bar association gala. These are the sorts of problems that can be resolved by refusing to re-invite offending speakers—not by threatening to suspend or revoke a lawyer's license. Here, the nexus between the bar's mission to regulate the practice of law is far too attenuated to justify this incursion into constitutionally protected speech.

Bar associations should resist the urge to stray from their core functions. Not every lawyer wants to be a hero. Some simply want to be attorneys.

NEXT: Today in Supreme Court History: January 6, 1964

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. It’s sad that you equate “. . .remed[ing] de facto and de jure discrimination, eliminat[ing] bias, and promot[ing] equality, diversity and inclusion in the legal profession” with being a hero.

    I call it being a normal human being.

    1. You possess a tenuous grasp upon free speech.

    2. Are you a lawyer? Do you currently feel that you have an ethical obligation to seek out discrimination and bias? What are the contours of that obligation?

    3. Progressivism asa millenarian cult ?

    4. “I call it being a normal human being.”

      Wow. What a virtuous individual you must be.

  2. Bar associations should resist the urge to stray from their core functions.

    So true. We have enough politicans and political correctness. Don’t add to it, ABA.

  3. Well, you have an eminently sane opinion.

    It really is true that any organization that isn’t started as being explicitly right wing eventually gets taken over by leftists. It’s nuts. Then they use their positions of power to push their ideological ideas as if they’re THE ONLY acceptable opinions to have. This type of stuff is really getting out of control in a lot of areas of life nowadays.

    Something like this is just absurd on so many levels. What will they be demanding next, that 80% of the awesome Jewish attorneys out there retire from law to make room for more black or Hispanic lawyers, because Jewish people may be over represented as is now? Who knows with these whack jobs.

    Let people do what they want to do, and that’s it. Let the chips fall where they will. No bonus BS needed.

    1. That’s why I’ve long said that it’s not enough to counter liberal ideas. As long as these nutty leftists are still in existence, they’ll continue to propagate their despicable ideals. They need to be exterminated.

      1. There’s a time and a place for everything… I have a sneaking suspicion that the time for watering the tree of liberty with the blood of patriots and tyrants may be getting rather close.

        1. Love to read the growing bloodthirst over on the Conspiracy.

  4. They already indoctrinate college kids with this garbage, and they are starting to do it further down the educational chain (https://reason.com/2019/10/22/seattle-math-oppressive-cultural-woke/). Might as well make it cradle to grave woke agitprop in every sector of society at all times

  5. Sounds like the ABA needs some free market competition…

    1. I was thinking the same; the best way to promote diversity is to get the bureaucrats out of the way, to allow people to choose anybody they want for their lawyer, regardless of what bar associations think of their qualifications, so more people can afford lawyers instead of having to rely on public defenders.

    2. Clingers have already established a number of separatist right-wing organizations — there’s a right-wing AARP, a right-wing ACLU, etc.

      It doesn’t seem to affect the trajectory of the culture war, though.

      The dividing lines are reason, tolerance, modernity, education, science, and inclusivity against intolerance, backwardness, superstition, dogma, ignorance and insularity. Until conservatives stop taking the wrong side in that contest, they should expect to continue to watch others shape American progress against conservatives’ wishes and efforts.

    3. FWIW, not all lawyers are members of the ABA. According to Wikipedia, as of 2017, only 14.4% of U.S. attorneys were dues paying members of the ABA.

      The ABA’s model rules seem to have more influence, though, than its membership numbers indicate it should.

      1. Of that 14%, most are newly minted lawyers who get cheap membership in their first 5 years and have their employer pay their nut.

        It is truly amazing what disproportional impact the ABA has on state bar associations and the judiciary. They are a busy-body group just looking to justify their “leadership” in the legal community with meddlesome micromanaging schemes that are invariably politically correct left wing orthodoxy.

    4. In what way isn’t there a free market for whatever it is the ABA provides?

      1. If you conflate the ABA with your local compulsory bar association to practice (and in some places they are nearly one in the same, though that’s rare), then there’s no free market – you must adhere to engage in the practice of law.

        I think it’s more often people conflating the ABA with local bars that’s the problem, since there are few places where I’ve heard that the ABA effectively controls the local bar. And that’s likely especially true of moderately informed readers who understand about compulsory bar membership, but not being lawyers, don’t realize the ABA is not one of them.

  6. I always get a good chuckle when lawyers talk about diversity and inclusion. I can’t think of another profession where the children of that profession get the path cut for them, save maybe professional athletes.

    It seems half of law schools are children/grandchildren/nieces/nephews of lawyers, particularly highly compensated lawyers (that’s only a slight exaggeration). These kids get inside edges on job interviews and, once in practice, get assignments to good cases, client referrals, and origination credits. They’re often going to have a more welcome reaction from judges, mediators, or other practitioners.

    Whenever I hear lawyers talk about promoting diversity in the profession, it’s always with an asterisk of “except for my kids and the kids of my friends.”

    1. David Bremer, children of ranking academics in the humanities and social sciences do not seem to struggle professionally. There are also notable parent/child duos to be found among natural scientists, including among physicists. Of course, you might suppose that Niels Bohr’s Nobel winning son, Aage Bohr, profited intellectually from the privilege of close connection with his father— perhaps to an extent which helped him get over whatever merits bars he encountered in his path. Maybe they all do.

      1. Quick question… of the lawyers on the SCOTUS and arguing in front of the SCOTUS, how many didn’t go to an Ivy League school?

        Next question… of the scientists at NASA, how many didn’t go to an Ivy League school?

        Yes, the children of middle/upper-class families have certain structural advantages. What lawyers do goes well beyond what’s seen in almost every other field, with the notable exception of politics.
        ____
        Hint: the answers are “most of them” and “no one knows”, because while lawyers brag -a lot- about their education and going to “prestigious schools”, folks in most other fields quickly move on to doing actual work, even when they’re from the same schools.

        1. Dammit, “most of them” should be “almost none”.

          1. But replace “Ivy League” with “Cal Tech and MIT” and you get a similar answer. Expand that to include the next half-tier down (Cornell, etc) and it’s the same answer.

            The difference though is that most physicist and engineers don’t care where you went to school, they care only about your published work, since that’s how you communicate ideas in the sciences. Once you’re reasonably well-published it doesn’t matter where you went to school at all, except for the very narrow niche of hiring at Ivy League schools (there’s a study I’m not quite remembering the name of that found that Ivy League schools were insular in their hiring, even in the sciences, and were less competent because of it, while MIT, Cal Tech, and the next tier if mostly state engineering schools were far more ecumenical in their hiring and punched above their weight class in the sciences because of it – basically the Ivy League schools were crippling themselves by not hiring based on competence alone, but one competence plus lineage and so had a narrower hiring market available to them).

            1. But replace “Ivy League” with “Cal Tech and MIT” and you get a similar answer. Expand that to include the next half-tier down (Cornell, etc) and it’s the same answer.

              Hard data is harder to get ’cause scientists aren’t nearly as flamboyant and public as lawyers, but if you go through the list of people have been Chief Scientist at NASA, Brown pops up twice, and there are no more repeats.

              Which jives with my personal experience, actually working with scientists and engineers, including at NASA: the leg-up from going to the “right” school is much smaller then for lawyers, who obsess over such things.

              Which is to say… no. The insular, incestuous self-gratifying obsession with legacy common to lawyers is not normal for other professions.

      2. I don’t deny that parents of every stripe pave the way for their kids. And it’s sensible for kids to match or exceed their parents when they follow that field (since they generally know more about it going in).

        But it seems far more common in the legal profession. Think of all the law firms where the kids of the named attorneys end up on staff. I don’t see the same thing (or certainly not to the degree) with teachers, doctors, scientists, or any number of other professions. And it’s not just about being successful; it’s about the level of success they get because of assistance from family members.

        1. Think of all the law firms where the kids of the named attorneys end up on staff.

          All what law firms? Other than small firms where their kids are joining their parents’ business — no different than tradesmen in any other field — where are you seeing this?

      3. Even with reversion towards the mean, the children of brilliant people are, on average, going to be rather smart themselves. Just as the children of people raised to value academic excellence are, by social inheritance, likely to value it themselves.

        So, wouldn’t you expect this sort of “like father, like son” pattern even without any sort of bias?

        1. You should, though then you raise the question of what attributes you’re selecting on.

          Picking on the Bush family: George Bush was heavily involved in politics, the CIA, VP, and finally President. His sons both became state governors, one became president, and the ran for it.

          Assuming that the Bush family is passing on some “government executive” trait, what are the component parts? Name recognition is assuredly one of them, but how much? Family connections? I would guess those are the two most important traits, and if I’m right, are those traits that are good for society to base personal advantages on? That seems to be the very point of the “white privilege” crowd, that some people have by accident of association benefits that others with accident of birth traits don’t have – the Bushes were successful politicians not because they themselves were competent (accident of birth) but because they happened to be born into a family with the right connections (accident of association).

          We may want people to advance based on a combination of their own inherent skills (accident of birth) combined with their maximal exploitation of what they have (personal perseverance), but I doubt many think that people who have neither should be particularly successful as they are inherently less likely to be competent. That’s how you got idiot kings in the past – a meritorious man (where often meritorious = good at killing, but that was the metric of the day) would round a dynasty (good, again the standards of the time) to ultimately give power to an imbecile descendent whose sole claim to power was the mere accident of his association with the prior meritorious man.

  7. I look forward to the announcement of the new CBA (Conservative Bar Association).

    I mean seriously, Republicans have been crying about bias in the ABA and denouncing it for years. Given one of the two main political groups is so anti-ABA, it really shouldn’t be hard to start-up an alternative.

    1. Republicans whine about everything:

      Good schools do not have enough conservatives.

      Good entertainment isn’t conservative enough.

      Modern, successful communities aren’t conservative enough.

      Mainstream institutions aren’t conservative enough.

      What is stopping right-wingers from addressing the ostensible market failure by establishing strong conservative schools for fun, profit, and ideological advantage? Why are the better comedians, directors, musicians, and actors not conservative? Why do conservatives control the can’t-keep-up backwaters but struggle politically in modern, successful, accomplished communities?

      Rather than address those points, conservatives whine about the reality-based world.

      1. Well, moron, if you had any brains, you would realize that a lot of that stuff is stymied on purpose because the leftists can’t stand opposing viewpoints. Hollywood for example.

        Lots of Hollywood stars are conservative or libertarian. Clint Eastwood, Vince Vaughn, Bruce Willis, Mel Gibson, Kurt Russell, Jon Voight, even Keanu Reeves is said to be legitimately pro gun. I could go on for ages.

        Yet, because of the structural control the commies have on the industry, they practically black list any major productions being made that has too strong of a conservative message. Magically when something slides through that isn’t raging leftist claptrap, it is often times a hit. However even when it is, the leftist media will shit talk it, or cancel it, try to screw with the producers, etc.

        The bottom line is when one side is okay with trying ti completely suppress the other sides views, and the other side isn’t willing to do it back… You end up with leftist oppression like we have now. Which is why sane people need to start hitting back at all the commie BS.

        1. Hollywood has a quasi-official leftist bent, but I’ll bet anyone who shoots their mouth off about politics gets on the doglist regardless of leanings.

          Deep pockets investors don’t want to risk that kind of money to anyone who’s pissed off half the country, halving their chance of making it back.

          1. That’s an empirical claim, that if an actor spouts political vitriol then their careers will decline: can we test it?

            Can you name a single actor where this has occurred?

            Can you name actors where it did not occur? I certainly can, but maybe there are many more who spoke and were subsequently blacklisted who I just don’t know about.

            Remember also that your thesis is: ranting about politics gets you blacklisted, countering the prior claim that supporting conservative causes gets you blacklisted (I’m stretching the prior claim for simplicity, that’s not quite the prior argument).

            1. I can’t think of a single leftist that has taken any flack or had any obvious career harm from going super hard left in their public statements. I can think of some conservatives though. The thing is the leftists who control the media don’t CARE if they piss off the “bad” half of the country. They crank out lefty flops all the time, yet almost nobody tries to produce an action movie that just follows all the traditional arch types that people actually like. There always has to be feminist virtue signalling in it.

              Given that I’m quite positive a straight forward, non political action movie starring nothing but a bunch of badass dudes (which would actually be realistic, unlike 90 pound women beating up 6’6″ dudes), would do very well… There is only one conclusion as to why NO movies like this are made: Commie politics.

    2. Isn’t that just the Federalist Society?

      1. I dunno if that’s true anymore – after the Barr speech and it’s glowing reception, the Federalist Society appears to have become captured by Republican politics.

  8. When consuming legal services I am looking for the best balance between cost and competence in the area of interest.

    Should this new rule be adopted and I hear that a law firm has been called out for failing to satisfy its requirements, I will be more likely to utilize that firm. This reduces my odds of getting a lawyer working on my case that would not be competent enough to work at the firm except for their “diversity” contribution. It also means I’m not paying for time being spent needlessly on activities that are actually destructive because they favor specific religions, races, genders, sexual orientations, etc over competence.

    1. Yup.

      Honestly, in a lot of professional situations I don’t want a person serving me who isn’t a white or Asian man anymore. Take doctors for example. Things are heavily slanted against white and Asian men getting into medical school nowadays because of all the diversity BS…

      You’re talking about YOUR FUCKING LIFE OR DEATH. I don’t want some diversity hire determining if I live or die. I want the best person possible. And nowadays if it’s anybody other than a white or Asian man, you have no way of knowing if they’re actually competent.

      Either way, the result has been that only the best of the best white and Asian men make it in in the first place, so in most highly credentialed professions they’re kind of SUPER super achievers just because they made it in even with extra high bars set for them.

      So if I have a choice in the future, that’s what I’m all about… Because it just makes logical sense.

  9. Would this mean a lawyer who makes a career defending white men accused of sexual misconduct could be subject to discipline while a lawyer suing white men for sexual misconduct would be promoting “diversity and inclusion”?

  10. What does it mean “to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession”? Seriously. Note that these phrases are connected by “and”, not “or”. You’ve got to do everything to qualify. Would any competent lawyer recommend to a client that she agree to be bound by such a commitment?

    In my early years as a partner in a large law firm I voted for our first (I think) Gay partner and for several of our early female partners. I didn’t do so to affirmatively remedy discrimination or promote diversity, but because I thought they were good lawyers who would contribute to the firm. Turns out I was right. But I think I would fail the ABA test.

    I terminated my membership in the ABA decades ago, for other reasons. This post makes me want to rejoin the ABA so I could quit again.

Please to post comments

Comments are closed.