So, not a milestone for some, but, for me, it feels like an achievement to have made it to my 200th post. And because I’m a sucker for wordplay, I’ll use a “post” milestone to talk about an issue I’ve written about a good bit before but with a twist that also involves the word “post” but as a prefix.
If you’ve been paying attention at all to U.S. politics, you may have seen some discussion about how we seem to be living in a “post-fact” world and lots of accompanying criticism about how the media has played a large role in making it easy for prominent people to simply refuse to acknowledge facts and then inculcate beliefs in those who support them or identify with them that such facts are not actually facts.
Well, here’s something of an example — but in the world of legal ethics — of just how easily it is for that kind of thing to seem to happen.
So, in late October, the Montana Supreme Court put an order out for public comment about potentially adopting the new ABA Model Rule 8.4(g) addressing harassment and discrimination by lawyers in conduct related to the practice of law. The Montana Supreme Court has floated adopting the entirety of the ABA Model Rule black-letter language such that if adopted, Montana’s 8.4(g):
would provide that it is 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. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
You can read the Montana Supreme Court order here. The deadline for public comments is actually today and, within the last few days, there was some publicity in Montana about the proposal.
This story is what has prompted me to write. The reporter has included a quote from a law professor at a Montana law school who stakes out the position that the rule would suppress free speech and who is quoted as saying:
“There’s a wide variety of attorneys from a wide variety of backgrounds that are opposing this proposed rule, not necessarily on faith based reasons, but on the ability to ask questions in depositions and determining who should be seated on a jury. So it’s raised concerns amongst all types of attorneys.”
But, you might say to yourself, I just read that the proposed rule, if adopted, would have a sentence that says: “This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.” And, also since you read the blog, it probably means you keep up enough with these issues to know that the ABA Model Rule, at least, has specific language in an accompanying comment even addressing peremptory challenges, but that even if Montana isn’t also looking at adopting the comments, as long as what the lawyer does in jury selection is “legitimate advocacy,” it ought to be protected. Yet, the news article contains no push back against the law professor’s statement and not even a competing quote from someone saying the actual rule would raise no such issues.
How can that be? Well, there is a fairly easy and revealing answer that is pertinent to a number of much larger issues going on in the world around us these days (in my opinion). The news article, describing the rule for the public, merely says this about the content of the proposed rule:
Proposed rule 8.4 (g) states: It is 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.
So, the news report simply omits two of the sentences of the proposed rule including the one that contradicts the law professor’s stated concerns. Thus, regular folks would have no idea of the rest of the content of the proposed rule when reading the story and certainly no reason to question why the law professor would be willing to make claims that appear to be contrary to clear language in the rule.
(And, if you are in Chattanooga or Knoxville, I’ll be doing those stops on the Ethics Roadshow next week and ABA Model Rule 8.4(g) is one of the topics on the menu for discussion. It’s not too late to register and attend if you are so inclined.)