I was not born in the South but have lived here for the overwhelming majority of my life. I’ve never understood, however, the uniquely Southern interest in the history of the Civil War. And, I don’t mean just at the role-playing levels of Civil War re-enactment events but even at the more subtle levels at which it is fervently studied but not seemingly for the purpose of trying to learn lessons from history to avoid repeating history. It has always puzzled me that anyone would present that time period in American history as anything other than the darkest time in the history of our nation and something for which we should be ashamed and reluctant to speak about it unless absolutely necessary. But that’s just me, your mileage may vary.
So when I saw this headline at the ABA Journal online “Lawyer removes Confederate flags from civil war cemetery, sparking calls for disbarment,” I thought for certain that reading it would leave me overwhelmed with more sentiments I cannot understand. But having read it, what I really cannot understand is why the ABA would present such a misleading title. Having now read the news sources to which the ABA Journal links (the most thorough of which seems to be this one), none of them really contain anyone willing to actually call for the lawyer’s disbarment.
And, of course, no one should. Even if you have a problem with him removing the flags and want to go so far as to raise questions about whether the conduct is in violation of the Alabama law regarding real and personal property in cemeteries and graveyards, it is difficult to get to a disciplinary violation from there, much less one for which disbarment would be in order. Alabama, like Tennessee, has a version of RPC 8.4 patterned after the ABA Model Rules that treats the commission of crimes by lawyers even when not acting as a lawyer as grounds for discipline if the criminal act is one “that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Comment [2] to the Rule does the best it can to try to stress the point that lawyers, like all other human beings are personally answerable to criminal laws, but “should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” This most certainly is not that.
I think the “click-bait” nature of the ABA Journal’s headline comes closer to being “conduct involving . . . misrepresentation” that would run afoul of RPC 8.4(c) then the removal of flags, bagging them up, and leaving them at city hall to be picked up by the owners comes to being a violation of RPC 8.4(b).