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"
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.