In October 2016, the Supreme Court of Montana proposed the adoption of ABA Rule of Professional Conduct 8.4(g). That new rule, which the ABA adopted at its 2016 annual meeting, would make it professional misconduct for a lawyer to “engage in conduct 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, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” New comment (g)(4) defines conduct related to the practice of law to include “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.” [Read More]
On February 20, fifteen law professors submitted a complaint to the D.C. bar seeking discipline of Kellyanne Conway for public comments she made in television interviews during her first month as Counselor to the President. These professors based their challenge on specific statements Conway made about observers of the presidential inauguration, a supposed Bowling Green massacre, the Iraqi refugee program, and Ivanka Trump’s clothing line. [Read More]
In a recent ad,the State Bar of Texas announced that it is accepting applications for an open position on its Board of Directors. As required by Texas law, however, the State Bar is refusing to consider any attorney who is not “female, African-American, Hispanic-American, Native American, or Asian-American.”
On Monday, Greg Gegenheimer, a family-law attorney in Austin, filed a civil-rights suit against the State Bar in the Western District of Texas. Mr. Gegenheimer, a white male, alleges that the State Bar is violating the Equal Protection Clause by excluding him from consideration for the open position based on his race and sex. Mr. Gegenheimer’s lawsuit is being supported by the Project on Fair Representation, the organization that successfully challenged the constitutionality of Section 4(b) of the Voting Rights Act in Shelby County v. Holder.
Federalist Society member Ron Rotunda writes for Verdict:
In 2008, the American Bar Association (ABA) House of Delegates adopted what it called “GOAL III: Eliminate Bias and Enhance Diversity.” This goal: (1) “Promote full and equal participation in the association, our profession, and the justice system by all persons,” and (2) “Eliminate bias in the legal profession and the Justice System.”
These goals are very important and worthy. The ABA is no longer the kind of organization it once was. The ABA once prohibited black lawyers from membership, and did not lift its rule until 1943. That color ban caused black lawyers, in 1925, to found the “Negro Bar Association,” now called the National Bar Association. A quarter of a century earlier, in 1918, the ABA allowed women to join. It was not until 2015 that the ABA had its first black female president, Paulette Brown, who was only third black lawyer to serve as ABA president in its 136-year history.
The ABA has made remarkable strides in eliminating bias and forcefully acknowledging the need to remove barriers. The problem is how the ABA implements these goals. It does not advance the ball if it removes old barriers while creating new ones.
Bill Olson and Herb Titus comment on the American Bar Association's proposed changes to their Model Rule of Professional Conduct 8.4:
Justice Samuel Alito got it right. Dissenting from the Supreme Court’s same-sex marriage decision and responding to the majority’s reassurance that those who oppose same-sex marriage would have their “rights of conscience ... protected,” Justice Alito cautioned:
We will soon see whether this proves to be true. I assume that those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employees, and schools. [Obergefell v. Hodges, No. 14-556 (June 26, 2015) (emphasis added).]
It took only six months for Justice Alito to be proven right.