The struggle between free speech and speech codes that are intended to prevent harassment and discrimination appears set to leap from college campuses to law offices around the United States.
On August 8, 2016, the American Bar Association (ABA) approved resolution 109, which curtails freedom of speech. The approved resolution amended its model rule of professional conduct 8.4. It prohibits
“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.”
The official comment explains:
“discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct.”
The model rule is non-binding, but has potentially great influence on professional conduct rules that state courts require lawyers to follow. Should state courts adopt the change, lawyers found to violate it could be sanctioned and possibly disbarred. Because professional rules are legally binding on lawyers, the prospect that states may regulate “verbal conduct” implicates First Amendment concerns.
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