The Montana Supreme Court has delayed action on a proposed change in the professional code of conduct for lawyers that has drawn hundreds of complaints from people who say the change threatens lawyers’ First Amendment rights.
The proposed change comes from the American Bar Association, which adopted it in August. The change considers 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.”
A comment added to the ABA rule says that conduct related to the practice of law includes “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.”
The deadline for public comments to the Montana Supreme Court had been Dec. 9. But on Dec. 6, the State Bar of Montana requested extending the comment period until April 21.
The State Bar requested the additional time, it said, “to allow vetting of the ABA’s proposed rule by the State Bar’s Ethics Committee and recommendation to the Board of Trustees. Following customary procedure, the Trustees then decide whether or not to petition the Court for rule adoption.”
The latest issue of Montana Lawyer noted that the proposed rule has become controversial. It added, “Some State Bar Board of Trustees members said they were surprised the court hadn’t asked for guidance from the bar’s Ethics Committee before calling for a comment period on the proposal, which they said has been customary in the past.”
Montana Lawyer also points out that David Aronofsky, a former University of Montana School of Law professor and former general counsel of the university, has suggested amending the proposal to clarify what constitutes harassment.
According to the ABA’s website, more than 70 people signed up to speak in favor of the new rule before it was adopted at the annual meeting in San Francisco. No one spoke against it. About a third of America’s 1.3 million lawyers are members of the ABA.
In Montana, the proposed rule has been far more contentious. Last Best News examined many of the comments at the Montana Supreme Court clerk’s website and was unable to find a single one in support of the new rule.
Many of the comments, including at least a dozen forwarded by the Montana Family Foundation, simply said the rule violated free speech and religious liberty. Some commenters seemed to think the rule originated from the federal government, rather than the Bar Association. And many saw it as part of an ongoing dispute over the way religious liberty applies to gay rights, including the right to marry.
Other comments, including some from judges and legislators, provided detailed responses.
Blair Jones, a district judge in Columbus and a member of the Supreme Court’s Commission on the Code of Judicial Conduct, commented, “We live in a time when the Bill of Rights is under assault from both the left and the right. In my view, our number one priority as judges is to protect individual rights from authoritarian abridgement at all levels. The proposed rule change is one such abridgment that I urge the Court to reject.”
State Rep. Matthew Monforton and Sen. Nels Swandal asked that newly elected Supreme Court Justice Dirk Sandefur be disqualified from considering adoption of the new rule, which is identified by the ABA as Rule 8.4 (g).
The letter says that during his campaign Sandefur characterized opponents of gay marriage as “bigots and haters” before a “crowd of LGBT extremists.”
“These statements clearly appear to commit Justice-elect Sandefur to approving Rule 8.4(g) and enforcing it vigorously,” the letter said. “Christian attorneys whose faith prevents them from officiating same-sex ‘marriages’ or aiding adoptions by unmarried couples are exactly the kind of ‘bigots and haters’ Sandefur denounced during his campaign.”
In a telephone interview, Sandefur said he had heard about the letter but had not responded to it.
“I just regarded it as more political rhetoric that’s a hangover from the campaign,” he said. He said he had not examined the rule and would not comment on it, especially since he has not even joined the court yet.
At his Republican Uprising website, Monforton also said, “Real Christians, and real Americans, in the thousands and in the millions, must begin resisting these kinds of threats to our constitutional rights. If the Montana Supreme Court formally attempts to shove Rule 8.4(g) down our throats, I will openly defy it and urge other Montana attorneys to do so as well.”
Sandefur’s comments came in a campaign against Kristen Juras, who teaches law at the University of Montana. She also has served as an adviser to UM’s student chapter of the Christian Legal Society, which requires members to sign a statement of faith indicating that they hold certain Christian beliefs.
The Christian Legal Society filed a 16-page letter with the clerk of the Montana Supreme Court warning that the ABA comment encompassing “business or social activities in connection with the practice of law” could prohibit lawyers from exercising religious rights.
“For example, a lawyer may be asked to help craft her church’s policy regarding whether its clergy will perform same-sex marriages or whether it will allow receptions for same-sex marriages in its facilities,” the letter says. It adds, “The proposed rule creates a cloud of doubt that will inevitably chill lawyers’ public speech on one side of these current political and social issues, while simultaneously creating no disincentive for lawyers who speak on the opposing side of these controversies. Sadly, we live at a time when many people, including lawyers, are willing to suppress the free speech of those with whom they disagree.”
Among other Montana comments:
♦ The Rev. Alex Chai of Word of Life Fellowship in Billings: “This is an attempt by a small segment of society to force their personal views on others even if it violates their conscience.”
♦ The Rev. Chad Hesler of Canyon Ferry Road Baptist Church in Helena: “The lawyer would simply be unable to advise, advocate, or participate in any social gathering fearing that he or she would be discriminating against one opinion over the other. What position could the attorney take? To be for something is to be against something else: a contradiction within the law promotes anarchy from the law.”
♦ Scott and Michelle Kiekover of Billings: “Under this rule change, only the ‘favored’ classes will enjoy the support of Montana attorneys while the rest will be denied due to lawyers’ fear of facing discipline for not being ‘politically correct’. This rule change was not proposed to protect clients, attorneys, or the court. It was proposed because the ABA is trying to push an ideological agenda.”
♦ Daniel D. O’Hara of Billings: “The Montana Supreme Court is considering a bigoted, Nazi-esque and totalitarian test to penalize Christian attorneys and others of conscience who would speak out against the evil of homosexual marriage.”
♦ State Sen. Keith Regier of Kalispell: “This new rule would restrict freedom of speech and freedom of religion. lt’s disappointing that this new rule would even be considered.”
♦ Mrs. Garnett Rope of Great Falls: “The new rule, in my view, would be better served up in Cuba, the Soviet Union, North Korea, Iraq, China … not in the USA.”
♦ Missoula attorney Douglas D. Harris: “Boorish behavior, in discrimination and harassment law, doesn’t always amount to unlawful behavior. It should not amount to professional misconduct, either. For the offended, it’s best to slap the offender’s mouth and leave it at that.”
While nearly two dozen states have adopted similar rules, national critics of the rule say that most don’t go as far as the ABA rule. Some people have praised the rule because of its potential to curb harassment in court, particularly of women, but others are concerned about the effects of the rule outside of court.
In an op-ed for the Washington Times, former U.S. Attorney General Edwin Meese and Kelly J. Shackelford, a lawyer who heads First Liberty Institute, wrote, “The ABA’s un-American censorship regime is beyond draconian; it coerces conformity regarding religious and political beliefs on a level unprecedented in American history. It borders on fascism, and must be explicitly repudiated.”
Eugene Volokh, founder of the respected Volokh Conspiracy blog now affiliated with the Washington Post, said the rule would not be objectionable if it applied only to courtroom behavior and other matters directly associated with the administration of justice. But it goes much further than that, he said.
“Say that you’re at a lawyer social activity, such as a local bar dinner,” Volokh wrote at his blog, “and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint.”
The bar might see such conduct as “harassment,” Volokh said, adding, “And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.”
Commenters on Volokh’s blog post suggested that even his post might be considered harassment and subject him to sanctions by the bar.
A 29-page letter to the ABA signed by 52 lawyers and members of the group also said the proposed rule might violate constitutional rights.
“To what sorts of behavior does the proposed Rule apply?” the letter asks. “Would it apply to an attorney making an offensive comment that could be perceived as relating to a protected class member? Would it apply to an attorney writing an article for a legal publication, or giving a speech? Would it apply to an attorney’s internal law firm practices—such as hiring and employee disciplinary decisions?”
The nearest thing to a Montana defense of the rule that online research turned up was from attorney John Mudd, who directs development efforts for the Alexander Blewett III School of Law at the University of Montana. In a post in November at his Life at the Peak blog, Mudd said that “one need not search far to find tales of boorish behavior and worse in the practice of law. The addition of a specific rule for the same will be welcomed in many quarters.”
He noted, “Montana law does not presently protect individuals on the basis of sexual orientation and/or gender identity. If adopted, the bar in Montana will have a higher standard, and many will argue appropriately so. While some Montana cities and towns have adopted non-discrimination ordinances others, such as Billings with the second largest bar in the state, have declined to do so.”
But he also acknowledges, “With the country perhaps more attuned to these issues in the wake of the 2016 presidential election and ongoing, high-profile sexual harassment scandals involving entities like Fox News, the Rule comes at a time when it might be expected to stir controversy.”