ABA Delegate’s Report, 1216 WYBJ, Vol. 39 No. 6. 14
| Author | Darin B. Scheer, J. |
Darin B. Scheer, J.
Wyoming State Bar Delegate to the ABA dscheer@crowleyfleck.com
ABA Resolution 109 A “Speech Code for Lawyers”
After more than two years of intensive drafting and negotiation, a resolution regarding a new professional conduct rule was adopted by the ABA House of Delegates at the ABA Annual Meeting in San Francisco in August.
Resolution 109 proposed to revise Rule 8.4 of the ABA Model Rules of Professional Conduct to add knowing harassment or discrimination as professional misconduct; provided, the provision does not preclude legitimate advice or advocacy consistent with the rules. Prior to the annual meeting, the proposed rule had generated significant discussion and criticism. The Washington Post’ s Eugene Volokh characterized it as a “speech code for lawyers”1 – a point of view held by a number of those who commented on the original proposal.2
For me, the most significant takeaway regarding Resolution 109 was this: although the original language was overly-broad and fairly controversial, the proponents of the resolution did a commendable job of inviting and accepting input and utilizing that input to craft a better resolution that was more narrowly tailored to accomplish the intended result while, at the same time, removing the unnecessarily controversial aspects that caused most of the concern. As a result of these changes, the resolution evolved from a potential disciplinary trap for the unwary to a thoughtful statement of non-discrimination principles. Although I intended to oppose Resolution 109 as initially proposed, the thoughtfulness of the substantive changes and the persuasiveness of the presenters ultimately caused me—and the overwhelming majority of the House of Delegates—to vote in favor of the resolution, as revised. Ultimately, not a single speaker stood up to address the House in opposition to the resolution. This was not due to a lack of initial criticism but, rather, a refection of the fact that the revised resolution incorporated numerous meaningful changes in response to that criticism.
The new rule, as adopted, reads as follows:
It is professional misconduct for a lawyer to: (g) 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...
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