Rights of Attorneys in Montana Under Fire
By Gregory Ammondson and Chris Tootell
March 15, 2017
Recently, the American Bar Association, a non-profit Political Advocacy Group that greatly influences lawyers in America, made far reaching rule change. This particular rule is being pushed by Montana’s Supreme Court, and it could drastically alter the ability of lawyers to practice rights that are guaranteed by the First Amendment.
On February 20, the Senate Judiciary Committee of the Montana Legislature received public testimony on a resolution (SJ 015.)
This resolution urged the State Supreme Court to not adopt a newly modified American Bar Association (ABA) model rule called 8.4(g.) Basically, a lawyer could very well lose his or her license to practice law if he or she verbally or professionally violated rule 8.4g.
Opponents of the rule change say the content of the ABA rule would be unconstitutional under both Montana’s Constitution and the First Amendment of the U.S. Constitution. The resolution argues that the rule’s definition of discrimination would violate freedom of speech and religious freedom for lawyers. The new rule states in part:
“It is professional misconduct for a lawyer to:…(d) 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. … This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”
According to Sen. Dave Howard, sponsor of the resolution, the key to understanding this rule is the official ABA comments that accompany it. The ABA makes it clear that the rule applies to “verbal conduct” as well as “physical conduct,” Howard said, and can apply anytime a lawyer is speaking to another person outside of a courtroom even in a social environment.
The last sentence of the rule above suggests that a lawyer’s personal behavior must be consistent with the list of non-discrimination.
So, for example, a lawyer that belongs to the Catholic Church and openly espouses that marriage is only between one man and one woman could be sanctioned for discriminatory misconduct under this rule.
Further a lawyer making a political speech decrying an organization such as “Black Lives Matter” could also be disciplined or debarred for racial discrimination that does not exist in law. Professionally, lawyers would be restricted on who they represent. If they wanted to represent a church that was being sued for refusing to perform a same-sex marriage, they could not take the case under rule 8.4g.
Remarkably the American Bar Association’s own Discipline Committee cautioned against Rule 8.4(g.) They told the ABA’s ethics committee, which was sponsoring this rule, that it clearly violates the Constitution of the United States of America, before they actively promoted ratification of the rule, said Sen. Howard.
During the hearing before the Senate committee, the testimony offered was heavily in favor of the resolution to stop rule 8.4g from being implemented. The resolution passed in Senate. It now proceeds on to the House. If passed by the House, a strong message will be sent by Montana’s Legislature saying the Legislature is an equal branch of government to the Montana’s State Supreme Court, which will eventually approve or disapprove this rule.