The Volokh Conspiracy
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Maine Lawyer Tries to Get Federal Government Lawyer Investigated for Litigating Government's Claim Related to Transgender Athletes
The federal judge rightly rejects the request.
From WMTW:
A federal judge has denied a motion from a Maine lawyer asking for a special counsel to investigate the attorney representing the federal government in its Title IX lawsuit against the Maine Department Education.
{On April 16, U.S. Attorney General Pam Bondi announced the Department of Justice was suing the Maine DOE for violating Title IX by allowing transgender athletes who were assigned male at birth to compete in girls' sports.}
Randy Creswell … filed a motion in federal court Thursday that accuses U.S. Department of Justice attorney Matthew Donnelly of discriminating against Maine students on the basis of gender identity by continuing to pursue the case.
No, said Judge Stacey Neumann (D. Me.):
ORDER re 9 NOTICE to Appoint Special Counsel to Investigate and Prosecute, as Necessary, Formal Disciplinary Proceedings Against Matthew J. Donnelly, Esq. for Professional Misconduct …. I conclude the appointment of special counsel is not warranted, and no further action on this filing is necessary.
You can read Creswell's motion here, and here's the relevant professional conduct rule:
It is professional misconduct for a lawyer to …
(d) engage in conduct that is prejudicial to the administration of justice;
(g) engage in conduct or communication related to the practice of law 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, or gender identity.
(1) "Discrimination" on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity as used in this section means conduct or communication that a lawyer knows or reasonably should know manifests an intention: to treat a person as inferior based on one or more of the characteristics listed in this paragraph; to disregard relevant considerations of individual characteristics or merit because of one or more of the listed characteristics; or to cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics….
(4) Declining representation, limiting one's practice to particular clients or types of clients, and advocacy of policy positions or changes in the law are not regulated by Rule 8.4(g)….
The comments to the 2009 version of the rule, before paragraph (g) was added, say:
Legitimate advocacy does not violate paragraph (d). However, by way of example, a lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice….
The comments accompanying paragraph (g) don't expressly say that legitimate advocacy doesn't violate (g). But they do suggest that 8.4(g) is supposed to elaborate on the existing rules: "This amendment, which adds new Rule 8.4(g), is intended to dispel uncertainty as to what conduct is prohibited." The addition of paragraph (g) thus shouldn't be read as purporting to bar legitimate advocacy (i.e., advocacy supported by nonfrivolous legal arguments).
This is also reinforced by (g)(4) stating that "advocacy of policy positions or changes in the law [is] not regulated by Rule 8.4(g)." Creswell argues that the federal government lawyer wasn't arguing for "policy positions or changes in the law," since the federal government's position is that federal law (not just a policy position) already calls (without any change in the law) for limiting women's sports to biological females, and thus excluding transgender athletes. But surely if the rule allows arguing that the law should be changed in a way that discriminates based on race, sex, religion, age, socioeconomic status, gender identity, and so on, the rule must equally allow arguing that the law already calls for such discrimination.
And in any event, I don't think that the Maine courts can simply create rules that forbid advocacy substantively urging what the courts view as discrimination, even if the courts wanted to. Professional conduct rules are intended to set up guidelines about how lawyers can make their arguments, not about what legal positions lawyers are allowed to endorse.
That's especially clear with regard to federal government lawyers making arguments under federal law in federal court, something state courts can't substantively restrain. But I think it should be equally true for private lawyers making state law arguments in state court as well: If Maine courts disagree with legal positions that would treat people differently based on race, sex, religion, age, socioeconomic status, and so on, they can reject those arguments, but they can't sanction lawyers simply for making them.
And that's of course equally true for arguments that transgender athletes shouldn't be allowed in women's sports; for arguments that men generally shouldn't be allowed in women's sports; for arguments in favor of race- or sex-based preferences in admissions or employment; for arguments in favor of various preferences for or against religious institutions or religious observers; various sorts of perfectly legal age discrimination and socioeconomic status discrimination; and more.
