Bar Association Bans 'Demeaning Verbal Conduct'

Charlie McKenna | August 10, 2016
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It looks like the entire legal profession is becoming a safe space. After months of controversy, the American Bar Association voted to add a certain anti-discrimination clause to the group’s ethics rules:

“It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is discrimination…harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct.”

Sounds pretty standard this day in age. But as with most legal affairs, the devil is in the details.  

For a document crafted by lawyers, the statement is surprisingly vague. First of all, any laws applying to sexual harassment in the workplace have always been applicable to lawyers. The statement banning sexual harassment screens the problem with this new policy.

The real issue is the ambiguous nature of the verbal harassment ban. Who’s to say what constitutes “derogatory or demeaning verbal” conduct? Of course, no one should be subjected to demeaning verbal abuse. But in today’s micro-aggression-obsessed culture, it's not a stretch to think that perceived “demeaning” conduct could include simply having a conservative opinion.

The document itself displays a liberal bias. It includes several favorite progressive topics such as “gender identity.” UCLA law professor Eugene Volokh found that “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.”

Professor Volokh explained through this hypothetical:

“Say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about… differences between the sexes… One of the people [gets] offended and files a bar complaint. Again, you’ve engaged in ‘verbal … conduct’ that the bar may see as ‘manifest[ing] bias or prejudice’ and thus as ‘harmful.’ This was at a ‘social activity in connection with the practice of law.’ The state bar, if it adopts this rule, might thus discipline you for your ‘harassment.’”   

Nobody would ever advocate for harassment to be acceptable. However, this restriction seems to be a very thinly veiled targeting of conservatives in the legal profession who hold controversial or unpopular views. The vagueness of the terms make almost any conservative statement about the roles of men and women in society vulnerable to getting a person penalized, and even disbarred. Respectable lawyers could be punished by the Bar Association for having a purely personal opinion that another person finds offensive.

I wonder if they’re going to ban lawyer jokes next.

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