Flipping Ethical Behavior for Lawyers


Readers might have come across a recent New York Times article about the American Bar Association’s (ABA’s) move to prohibit the use of language that might offend lawyers in protected classes.  Oddly — not because it’s surprising, but because writer Elizabeth Olson didn’t think it would undermine the point of her story — the article actually opens with an anecdote that arguably proves that the new restrictions on lawyers’ speech aren’t necessary:

When Lori Rifkin asked the opposing lawyer to stop interrupting her while she questioned a potential witness, he replied: “Don’t raise your voice at me. It’s not becoming of a woman.”

The remark drew a rebuke and fine in January from a federal magistrate who declared that the lawyer had “endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.”

“A sexist remark,” said the judge, Paul S. Grewal of the Federal District Court in San Jose, Calif., “is not just a professional discourtesy, although that in itself is regrettable and all too common.”

With a culture changing for the better in this regard, there’s no need to impose rules, because a rebuke from a judge or a bad impression on a jury is not worth whatever little thrill such remarks might give.  One might suggest that imposing such rules at exactly the time at which they’re becoming superfluous is an attempt from the Left to seize the moment and create a one way shield that will actually grant special privileges to Leftists.  As conservative lawyer David French puts it, while stating his intent to fight the rule with contempt:

It is troubling indeed that there are so few defenders of free speech in the ABA that exactly “no lawyers signed up to speak against the proposed rule”; it passed by a voice vote at the ABA’s annual convention. There’s no groupthink quite like liberal-lawyer groupthink. When they feel strong enough, they will mobilize to crush dissent. The legal Left obviously feels strong.

As interesting as this narrow issue might be, it’s actually part of a larger trend… a flipping of ethics on its ear.  Recall a few months ago when a federal judge lambasted some Dept. of Justice attorneys for outright lying to him, about which George Mason University School of Law Professor Michael Greve had this to say:

In a saner day and age a judge might simply have reported the lawyers to their DoJ superiors. They’d be fired; and if you get fired by Ted Olson or someone with an equally refined, near-obsessive sense of propriety, you might not work again any time soon, at least not as a lawyer. Alternatively or additionally, a judge might have sanctioned the attorneys and referred them to their state bar.

What this order is meant to signal, and what in fact it says, is that we no longer have that kind of DoJ. The lawyers in this case didn’t freelance; they were ordered to lie as part of a plan to create facts on the ground before some ornery judge could obsess over legal technicalities. And Judge Hanen pointedly cites and discusses other recent cases in which appellate courts complained of and cracked down on comparable DoJ misconduct. For what it’s worth this is consistent with what I hear, with increasing frequency, from my friends in the appellate bar: you can no longer trust government attorneys to play it straight.

When everything is political, and when progressives are in power, every contest becomes tilted, even when it’s in an arena, like the law, in which we’re supposed to be able to believe in objectivity and fairness so that we can resolve our differences without frustrated and oppressed people resorting to violence.  In the progressive era that President Obama and his politicized Dept. of Justice have helped to usher in, lawyers with the wrong views will find themselves sanctioned for using any phrases that leave a finger-hold for a pretense of offense while lawyers with the right views can behave in any way that furthers progressive ends.