Legal Ethics

Are Professional Conduct Rules Fascist? Let's Watch This Guy Slide Down His Own Slippery Slope!

Lawyers shouldn't make lawyers look like assholes is not a step removed from quartering troops.

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A law professor once asked my class if we could justify extending the death penalty beyond murder. He posed the possibility of allowing the death penalty for violent, serial rapists. A student pushed back, arguing that such a move would “take us down the slippery slope to executions for all sorts of crimes.” The professor stared coldly and responded to her concern, “yeah… I’m going to stop the slope at ‘rape’ so you can go ahead and answer my question.”

I was reminded of this exchange while reading this op-ed from Idaho lawyer Jim Harris complaining about the Idaho Bar Association’s recent vote to approve new professional conduct rules. In a nutshell, the rules instruct lawyers to not be belligerent dicks and allow for possible disbarment for lawyers who harass, threaten, or humiliate others while “engaged in the practice of law” or while “participating in social activities in connection with the practice of law.”

On its face, this bundle of rules seems entirely reasonable. Lawyers across the country are already barred from engaging in harassing litigation and attorneys who breach the standards of civility are routinely admonished or slapped with contempt on an ad hoc basis. These rules just institutionalize the state bar’s commitment to civility and professionalism. That’s probably why over 60 percent of the membership voted to approve the rules.

Harris, however, disagrees:

This new rule could have been torn from the pages of Huxley’s “Brave New World.”

For those of you betting, Brave New World edged out “1984” in this round of hyperbolic literary allusion roulette.

The enforcement available to the Bar and courts pursuant to this rule clearly brings it into violation of the First Amendment and goes against 200 years of U.S. Supreme Court rulings.

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On the one hand, policing speech is always troubling. On the other hand, from the Lawyers’ Manual on Professional Conduct:

As members of the bar and officers of the court, lawyers are beneficiaries of the privilege of the practice of law and also are subject to higher duties and responsibilities than are non-lawyers.

Suck it up buttercup. The bar has an interest in not, well, reinforcing everything people think about lawyers, and you don’t have some God-given right to be an embarrassment to the profession.

At first blush you may want to dismiss this new piece of social engineering as a lawyer’s problem and, thus, not yours, or as just another attempt to create a “safe space” to avoid uncomfortable or bothersome ideas. You would be wrong.

It is correct that you would be wrong. It is not about social engineering or a “safe space” or any other empty conglomeration of buzzwords. It’s about protecting the occupation from the deleterious impact of “that lawyer” that everyone talks about. Every locality has “that lawyer” whose vexatious, unprofessional, badgering behavior far exceeds “zealousness” and poisons the whole community. Obviously, there’s the risk that passionate lawyer’s diligence is branded by an adversary as “harassment,” but, newsflash, that happens now. Judges already hear sob stories about “harassment” dished out by good, hard-charging lawyers and judges evaluate those accusations on their merits.

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First, lawyers (like it or not) are opinion-makers in every community in the country. They make up a large percentage of mayors, city council members, legislators and elected federal representatives (three-quarters in Idaho, for example).

Sure? And that means it’s acceptable for them to vex and threaten adversaries in litigation? This guy seems to be assuming Idaho is about to wildly expand the definition of hostility. If being a public servant involves statements and actions that can reasonably be classified as “hostile” or “threatening” then there’s a more fundamental problem.

This argument for changing or at least ignoring the Bill of Rights will be expanded to other entities, individuals and governments – and, importantly, to other constitutional protections (the nine other articles of the Bill of Rights). The emotionally based “necessity” for such invalidation of liberty and traditions will soon be advocated for reinterpretation of all civil rights that stand in the way of societal control.

Dude, you’ve slid a long way down that slippery slope. Lawyers shouldn’t make lawyers look like assholes is not a step removed from quartering troops.

Imagine, if you will, how much success will be had by using the argument that the Second Amendment must be limited and regulated to avoid the provable “fear” generated by ownership of firearms.

Good point. Someone might even be crazy enough to say it must be “well-regulated” or limited to “militias.”
Judges are likely to do what they usually do and follow the lead of lawyers who appear before them and the political, popular and philosophical movements of the day (slavery was upheld as constitutional for more than 150 years).

Yes, professional decorum is just like chattel slavery.

Who is next? Perhaps religious leaders or gun owners? Probably the press.

I’m going to go ahead and say, as someone in the press, that the threats facing this industry have a lot more to do with lunkheads saying, “fake news” whenever confronted with reality.
Being a lawyer is not a religion. It is not reporting. It is not living secure in your own person from unreasonable search and seizure. It’s not even owning a gun. It’s not a right of any kind. It’s a privilege. Go out and be a prick on your own time. The legal profession doesn’t need to condone it.

First, they came for the lawyers: Beware the Idaho Bar’s proposed limits on free speech [Idaho Statesman]

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