Eugene Volokh: A Nationwide Speech Code for Lawyers?
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Eugene Volokh: A Nationwide Speech Code for Lawyers?


The American Bar Association has recently
proposed a new rule that would basically be a nationwide speech code for lawyers. It explicitly made clear that the speech code
would apply not just operations in courtroom, or in depositions, or in interactions with
clients or opposing counsel, but also in professional activities including Bar Association activities
and social activities related to the practice of law. So, uh, if, um, a, a lawyer’s group puts on
a debate about same-sex marriage, or about, uh, a discrimination based on gender identity,
or about, uh, immigration from Muslim countries or about illegal immigration, uh, and, uh,
somebody expresses a view in the process that the Bar might find to be derogatory, uh, that
person, if he’s a lawyer, could be subject to Bar discipline, uh, for engaging in so-called
harassment in busi-, in professional activities or in social activities if people are just
talking about this at dinner after a Bar Association event or talking about this at a, at a dinner
at a law firm event or something like that. The Bar Association is not Congress. It’s not a court. It can’t mandate this rule. But, it’s often quite influential in its proposal,
so-called Model Rules of Professional Conduct. A lot of state bars or state supreme courts
just adopt it on the theory that the Bar Association knows what rules are sensible for members
of the Bar. The American Bar Association is trying to
restrict the speech of America’s lawyers, and it’s trying to get, uh, state bars and
state supreme courts to essentially ban certain kinds of speech on pain of possibly losing
one’s Bar license or at the very least, uh, being, uh, publicly reprimanded or even suspended,
something that no lawyer wants to have happen. Then we have a powerful, powerful chilling
effect on lawyer’s willingness, uh, to talk about controversial issues. And, whether or not you agree with the viewpoints
that the Bar Association’s rule would end up suppressing, it’s very bad for any profession,
but especially for lawyers, uh, to be put in a position where they’re essentially, uh,
in danger if they express those opinions in danger o-of, of losing their ability to make
a living.

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