ETHICS COMMITTEE PREOCCUPIED WITH POLITICAL CORRECTNESS MANDATE

The Ethical Practices and Procedures Committee of the American Bar Association's Family Law Section met in April in Charleston, South Carolina, and its agenda was devoted entirely to Rule 8.4(g). The new proposed Model Rule of Professional Conduct 8.4(g) would allow disbarment of lawyers for expressing certain incorrect thoughts, but it will take the American Bar Association into realms of ideological purity where no rule has ever gone before. The ethics rule, being advanced by the Young Lawyers' Division and the Standing Committee on Ethics and Professional Responsibility, forbids a lawyer from saying or doing anything that is demeaning to any individual's race, sex, national origin, age, disability, sexual orientation or "socio-economic status," or to advocate discrimination on such a basis. Committee Chairman Anita Bolanos Ward explained that the SCEPR and Young Lawyers Division were expecting the Family Law Section on that day to endorse the new rule, and they wanted debate to focus on whether the rule should extend to lawyers in all of life at all times, or only "in the course of representing a client," or, as a third alternative, only in litigation.

Ms. Ward explained that at the mid-year meeting of the ABA in Kansas City, two competing but very similar proposals to add Rule 8.4(g), submitted by the Young Lawyers' Division and the Standing Committee on Ethics and Professional Responsibility, had been withdrawn in the face of opposition, but that the proponents had now combined their proposals and were seeking to take the matter to the House of Delegates again. They wanted the endorsement of the various sections, including the Family Law Section.

The Family Law Section's problem, Ms. Ward explained, is that apparently it does not like the rule at all. She explained also that the two proponent Sections had received a number of unfavorable reactions to the rule and decided that one answer to that was to amend it to provide that a lawyer will be excused from discipline if he or she truly and reasonably believed that the insult was necessary in order to protect the interests of the client and would not be demeaning or discriminatory to the victim. Another answer was to offer these options and decide by vote how broadly the ABA wanted the rule to apply.

Ms. Ward, who said she had solicited and received a number of opinions from Ethics Committee members, was worried about a number of predictable scenarios in which the rule might apply to divorce and custody lawyers conscientiously doing what they do now. Her classic example was a custody fight in which the attorney tries to help matters by explaining to the judge a temperamental difference between Italian families and Scandinavian families -- a matter of comparing volatility and reserve that occasionally arises in Chicago where she practices.

Other Committee members contemplated with alarm the ease with which someone might conceivably insult homosexuals when trying to argue that all facts concerning social and home life are pertinent in a custody dispute.

Apparently all who attended the Committee meeting spoke up, and opposition to Rule 8.4(g) was unanimous. Opinions differed on whether it would be better for family lawyers and their clients if the Section voted to make the law applicable to all of life, all representation, or only in-court litigation. Most attendees were extremely apprehensive about the ease with which one can, intentionally or not, say something that others subjectively perceive as discriminatory or demeaning today, particularly when the range of punishable offendee categories is so broad.

Most of the Committee members were concerned that family law is an area especially vulnerable to this kind of punitive ambush, since it deals with personal factors, emotions, and subjective things. This makes the rule enormously discriminatory against family law attorneys. It was pointed out that the stocks-and-bonds lawyers, etc., in the huge urban law firms from which the leaders of both the SCEPR and the YLD tend to come are unlikely to see the rule in operation. They would have to go out of their way to incur a significant chance of running up against this rule. A lawyer giving advice on tax-free municipals would have to go to considerable trouble and be a spectacular jerk to create opportunities to make politically incorrect opinions known. The family law practitioner, on the other hand, takes his or her chances on treading this dangerous ground in hundreds of personal interactions, with clients, courts, opposing parties, witnesses and others practically every day. Divorce and custody litigators have to speak of those messy subject areas relating to people's personal attributes all the time.

It was pointed out that the proponent Sections now argue that the rule is justified because judges in their own ethics code are held to such a rule. Several members urged that the considerations applying to judges are entirely different.

Others opined that we cannot assign the punishment of every sin, lapse in judgment, rudeness and faux pas to government agencies, including integrated bars. Others said that the very idea that attorneys are so important that their speech must be regulated for the good of society is erroneous. It was also suggested that just as virtue has its own reward so rudeness does also. Thus the punishment of gross, vulgar and impolite behavior in attorneys, though perhaps gradual, is loss of business.