Lawyers fear being handcuffed by new ABA anti-bias rule

The American Bar Association (ABA) overwhelmingly passed a resolution that will impose a flat prohibition on the use of potentially discriminatory words, like “honey” or “darling.”

ABA’s policy-making House of Delegates approved Resolution 109 on the fifth day of its annual meeting in San Francisco on Monday, thus forbidding any comment that could target someone on the basis of “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status.”

Such behavior will now constitute professional misconduct, with potential punishments ranging from a small fine to outright suspension from practice. The ABA has, however, included a provision stating that attorneys “must know,” or at least “should know,” that the behavior constitutes harassment or discrimination.

Some critics nonetheless worry that the resolution will impinge on attorneys’ First Amendment rights by preventing them from passionately defending their clients, as well as limiting their effectiveness by compelling them to accept cases they find distasteful.

“It would change the attorney-client relationship and impair the ability to zealously represent clients,” Kim Colby, director of the Center for Law and Religious Freedom at the Christian Legal Society, told The New York Times.

Indeed, Colby’s firm has led the charge against Resolution 109, presenting dozens of arguments against the new rule in a 16-page letter to the ABA.

Notably, Colby and her colleagues predict that the proposed rule will likely not accomplish its intended purpose, but will rather be used as a means of retaliation by disgruntled clients.

“The proposed rule change almost certainly will create a huge imbalance between comparatively few instances where the rule punishes misconduct as intended, as opposed to numerous instances where the rule is wielded as a weapon against lawyers by disgruntled job applicants, rejected clients, opposing parties, or opposing counsel,” the letter contends.

The firm goes on to point out that the rule change stands in contradiction to the existing “Rules of Professional Conduct,” which grant an attorney the freedom of conscience to reject a client with whom the attorney disagrees.

“Subjecting an attorney to discipline for refusing to represent a client is a new idea, one that flies in the face of longstanding deference to professional autonomy and freedom of conscience,” the letter argues. “In fact, Model Rule 6.2(C) recognizes that when a lawyer is forced to take on a cause that is ‘repugnant’ to the lawyer, it may impair the lawyer’s ability to represent the client.”

Nonetheless, the ABA’s board of 589 delegates overwhelmingly supported the measure, with only a few objections being raised during an August 8 voice vote.

The National Association of Women Lawyers has been one of the resolution’s leading advocates, arguing that the resolution will prevent sexist behavior in the courtroom. In a profile in The Times, many of its members recall being called “honey” or “darling” by the opposing counsel—the use of which would now likely result in a small fine.

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