At a national meeting of the American Bar Association now underway in San Francisco, a proposed rule change has been met with widespread concern over its implications for religious freedom and freedom of conscience for attorneys across the U.S.
Under the new rule, attorneys could be disciplined by state bar authorities for expressing views, representing clients or belonging to an organization that holds views that aren’t politically correct or socially acceptable on controversial issues. Former United States Attorney General Edwin Meese III and Kelly Shackelford, President and CEO of First Liberty Institute, say this rule would create a virtual “speech code” for attorneys, which could be used to punish “political viewpoints” and “religious beliefs” of lawyers and clients.
In a letter to the ABA, Meese and Shackelford said the proposed ethics rule would be an “unprecedented violation of the First Amendment”:
“As many scholars and experts assert, this rule entails severe constitutional infirmities and would punish both lawyers and the clients they represent for their protected speech and personal religious and moral beliefs,” the wrote. “This proposed rule violates the very spirit—in addition to the text—of the First Amendment’s guarantees, and transgresses the most fundamental principles that American lawyers have adhered to since 1776 regarding a lawyer’s right to express and live out his own belief system, as well as the right to full and zealous legal representation on behalf of any client, including (and indeed, especially) those whose views diverge from political correctness or modern social orthodoxy.”
The letter also quotes UCLA School of Law professor Eugene Volokh, who said such a rule would mean “a discussion with people” at dinner about “Christianity, black-on-black crime, illegal immigration, differences between the sexes,” or other topics may also result in bar discipline for any attorney involved in the conversation. Meese and Shackelford said the ABA rule could result in a ban of Orthodox Jews, Christians, Muslims, and those of other faiths from practicing law or obtaining legal counsel on controversial issues.
“This proposal goes far beyond state law, violating the very spirit of the First Amendment,” Meese said. “If implemented nationally, it could lead to the automatic disbarment of attorneys and judges over their private speech and beliefs.”
“The fundamental purpose of our legal system is to ensure freedom,” Shackelford added. “The law should protect the right of people to disagree with each other regarding important issues, not be used as a weapon to punish those who dissent from government-mandated orthodoxy.”
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