I urge the Court to deny Petition R-17-0032 and reject ABA Model Rule 8.4(g) for the reasons stated in my letter to the editor published in the March 2017 edition of the Arizona Attorney set forth again below:
“What should ye do then, should ye suppress all this flowery crop of knowledge and new light sprung up and yet springing daily in this city? Should ye set an oligarchy of twenty engrossers over it, to bring a famine upon our minds again, when we shall know nothing but what is measured to us by their bushel? …Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” John Milton
John Milton’s twenty engrossers are at it again. This time they’re the 589 members of the ABA’s policy-making House of Delegates. And two Ethics Counsel of the State Bar of Arizona.
In January’s Arizona Attorney, after pages of analysis, Ethics Counsel matter-of-factly advise us that a “racist and sexist joke about a member of the U.S. women’s national soccer team” told by a partner in a law firm at a firm-sponsored dinner party would “clearly be prohibited” by new Section 8.4(g) of the ABA’s Model Rules of Professional Conduct. That is to say, if Section 8.4(g) of the Model Rules were the law in Arizona (which, thankfully, it is not…yet), you or I could be subject to complaint, hearing, discipline and possible disbarment… for telling a joke.
To refresh your recollection, the new Model Rule makes it professional misconduct for a lawyer “to 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, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”
The hypothetical offered by Ethics Counsel has a law firm associate (whom you, the reader, mentor) attending the aforementioned dinner party. After the joke is told, awkward silence ensues, the moment passes, and the dinner concludes without incident, except that the associate is DEEPLY OFFENDED [emphasis added]. The associate, as your mentee, wants your opinion as to whether the partner’s conduct is unethical under the Model Rule.
I submit that Ethics Counsel’s conclusion that it clearly is, is clear as mud.
Since the Model Rule proscribes only “conduct,” it is fair to ask if speech is even covered. Comment 3 to the Model Rule answers that question, uncorking the spectacular euphemism “verbal… conduct.” We are all familiar with Supreme Court cases holding that conduct (e.g., flag burning) is speech in order to gain the protection of the First Amendment. Here, drafters of the Model Rule have perversely concocted “verbal… conduct” in an apparent attempt to avoid the protection of the First Amendment. (It should be noted that the specious turn of phrase actually used in Comment 3 is “verbal or physical conduct,” obscuring all the more the sinister ultimate objective of suppressing free speech.)
The tenuousness of this ruse is exposed by merely substituting “speech” for “verbal… conduct” in the text of Comment 3: “…discrimination includes harmful speech… that manifests bias or prejudice towards others. Harassment includes… derogatory or demeaning speech.” This is just another attempt by end-around to punish “hate speech.” But “hate speech” (as commonly understood), last I checked, is still eminently protected by the First Amendment, as are lawyers from attempts by government to limit their speech via bar rules. See Shapero v. Ky. Bar Ass’n, 486 U.S. 466, 469 (1988)
What a joke. What a joke it must be. Let’s hear the joke. I challenge Ethics Counsel, for our compleat edification, to tell us all a joke that Ethics Counsel considers so odious as to warrant bar discipline under the Model Rule. And then tell us who decides what constitutes a racist or sexist joke, or racist and sexist (presumably twice as reprehensible). All hearers? A majority by show of hands? The listener with the most delicate sensibilities? A judge who tells us “I know it when I hear it”? Are listener(s) the victim(s)? (Who else? Humankind? Womankind? Soccerkind? (the WNBA?)) To complain, must the listener(s) be the same race and gender as the soccer player (who is presumably the butt of the joke) - otherwise, is there standing? What if the listener is only mildly offended rather than deeply offended (or more likely (excuse my cynicism) feigning deep offense in order to sanctimoniously virtue-signal by punishing others for bad taste or thinking out loud)? What if the partner telling the joke is the same race and gender as the soccer player? What if the joke’s butt is instead a male, white, Christian chess player? What if the joke is an adept double entendre that is merely misconstrued? What if instead of awkward silence, a suppressed chuckle or a hearty guffaw is heard? Is mirth a defense?
The enduring beauty of the First Amendment is that none of this nonsense matters. A mere joke, howsoever heinous, is protected speech in the United States of America. And a lawyer’s free speech should be no less protected than that of any other citizen. Why didn’t this niggling detail cross the minds of the Delegates, or enter into Ethics Counsel’s calculus?
And what about harm? Where is the harm? On pain of bar discipline and possible disbarment shouldn’t the harm be severe, pervasive, lasting, objectively damaging harm? Harm prejudicial to the administration of justice? What have we here? Deep offense? That’s it? What we might call in today’s vernacular “snowflake hurt”? Snowflake hurt is no harm at all, or nominal harm at most, and is merely the acceptable consequence of the robust verbal rough and tumble that accompanies our revered foundational principle of free speech. Snowflake hurt, which must be endured by each of us willingly if not cheerfully, daily, is part and parcel of the free society we enjoy as Americans.
My advice to the associate? #chilloutbro (I try to speak their language.) Find a safe space and wait quietly until the sensation of deep offense completely subsides. If it happens within a reasonable time, congratulations, success in the legal profession is yet thinkable. And it’ll get easier with practice. But if it does not go away, or takes inordinately long, consider a move to China or North Korea, where “the birds have ears and the bees have eyes,” and even family members routinely rat each other out to the thought police. See Life and Death in Shanghai by Nien Cheng, or In Order To Live by Yeonmi Park.
John Milton ran afoul of government censors in 1644 and chose at considerable personal risk to directly challenge his masters in a speech before Parliament, quoted in part above. Now nearly 400 years later, nothing has changed. Powerful lawyers whose core function is to protect your rights meet on weekends in vacation destinations scheming to take them away. And minions across the land back them up. When Section 8.4(g) of the Model Rules comes to a theater near you, as it inevitably will, resist it. And if it is adopted in Arizona, as it full well may someday be, defy it. Let John Milton’s fine example be your guide.
Very truly yours,
Stephen W. Baum
Arizona State Bar No. 005381
P.O. Box 44678
Phoenix, Arizona 85064
602-265-3350 [email protected]
P.S. I wonder if Ethics Counsel would opine that this very communication, which is arguably “derogatory or demeaning” to, or “manifests bias” toward, Ethics Counsel, would “clearly be prohibited” by the Model Rule….