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A Nationwide Speech Code for Lawyers?

| 4 Comments
Eugene Volokh of UCLA has this video for the Federalist Society on proposed ABA Model Rule of Professional Conduct 8.4(g).  The web page caption states the question as, "Is it a violation of the first amendment for the American Bar Association to impose a nationwide speech code for lawyers?"  But of course (as Prof. Volokh makes clear in the video), the ABA has no government power, so it can neither impose its rules nationwide nor violate the First Amendment.  The problem is that too many state rulemaking entities that do have government power tend to go along with whatever the ABA says.

This deference to the ABA is based on a view of the nature of the organization that was obsolete long ago.  The ABA today is a left-wing, political, ideological organization.  It does not represent the profession as a whole, and its views are not entitled to any deference whatever.  That is why the ABA now has a special position in vetting judicial nominees only in Democratic administrations; previously it had that special position in administrations of both parties.  The previous and current Republican administrations both showed the ABA the door and appropriately informed them, in essence, that they are just another interest group, nothing special.

If the the ABA wants to be special again, it needs to purge itself of its heavy political and ideological bias.  Don't hold your breath.  In the meantime, states should write their own rules, considering the ABA's position to be just one opinion of many.

4 Comments

Kent,

As a member of the California State Bar, you are probably aware of the State Bar's attempt to incorporate the left-wing ABA's Model Rule 3.8 into the California Rules of Professional Conduct governing a prosecutor's ethical duties.

However, the State Bar is getting some push-back from the California Supreme Court on the most controversial (and anti-prosecutor) provision in their proposed ABA-inspired ethics rule.

See the link below if interested. It includes a link to the California Supreme Court's administrative order.

Let's see if the State Bar allows further public comment on the provision rejected by the court?

http://www.calbar.ca.gov/AboutUs/News/ThisYearsNewsReleases/201706.aspx

If a state Supreme Court adopts this rule, it should be permanently enjoined from making any rule of professional conduct.

And then who would make the rules? The State Bar? Be careful what you ask for.

I actually almost don't care---if a state Supreme Court is so bad that it would blow off the First Amendment, then it is ipso facto unfit to regulate the practice of law. The State Bar wouldn't get to make the rules either, and I guess we'd just have the practice of law generally unregulated (other than by tort/contract claims), which may not be a bad thing.

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