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RC ID # 2020-012 Aa EXPRESSING CONSCIENCE WITH CANDOR: SAINT..., 42 Harv. J.L. & Pub.... 42 Harv. J.L. & Pub. Pol'y 173 Harvard Journal of Law & Public Policy Winter, 2019 Article Michael S. McGinniss a1 Copyright © 2019 by the Harvard Society for Law & Public Policy, Inc.; Michael S. McGinniss EXPRESSING CONSCIENCE WITH CANDOR: SAINT THOMAS MORE AND FIRST FREEDOMS IN THE LEGAL PROFESSION This Article explores recent challenges to lawyers' “first freedoms” under the First Amendment to the United States Constitution, especially freedom of speech, with particular attention to the ABA's 2016 adoption of Rule 8.4(g) of the Model Rules of Professional Conduct. It begins with a brief reflection on sixteenth-century England's Thomas More, patron saint of lawyers, and the meaning that his life and example may offer for lawyers today. Next, it analyzes a profoundly flawed 1996 Tennessee ethics opinion advising a lawyer who was court appointed to represent minors seeking abortions, and its troubling implications for lawyers with traditional religious and moral views relating to their practice of law. It then examines multiple aspects of the ongoing Model Rule 8.4(g) controversy, including the rule's background and deficiencies, states' reception (and widespread rejection) of it, socially conservative lawyers' justified distrust of new speech restrictions, and the impact of the United States Supreme Court's 2018 decision in National Institute of Family & Life Advocates v. Becerra on “professional speech” under the First Amendment. It concludes with a call for the American legal profession to embrace a vision of diversity that includes, rather than excludes, socially conservative lawyers who dissent from its currently dominant moral views, including on matters of sexual ethics. INTRODUCTION 175 I. SAINT THOMAS MORE: SILENCE FOR CONSCIENCE'S SAKE 178 II. THE 1996 TENNESSEE ETHICS OPINION: COMPELLED ADVOCACY AND ADVICE AGAINST 184 PRO-LIFE ADVICE A. Compelled Advocacy: “But Let Us at Least Refuse to Say What We Do Not Think” 184 B. Advice Against Pro-Life Advice: Your Client Has a Right to Your Silence 192 C. The Continued Importance of the 1996 Tennessee Ethics Opinion 197 III. MODEL RULE 8.4(G) AND THE MOVEMENT TO MARGINALIZE SOCIALLY CONSERVATIVE 198 LAWYERS AND DETER THEIR SPEECH A. Model Rule 8.4(g): Its Background and Its Deficiencies 199 1. What Is “Conduct Related to the Practice of Law”? 201 2. What Are “Discrimination” and “Harassment”? 202 3. Mens Rea Requirement: “Knows,” “Reasonably Should Know,” or None at All? 204 4. Is Model Rule 8.4(g) a Content-Based Speech Prohibition That, on the Face of its Comment, 206 Discriminates Based on Viewpoint? 5. Does Model Rule 8.4(g) Actually Protect Lawyers' Freedom of Client Selection, Including Declinations 207 Based on Their Moral Objections to Client Objectives? 6. What Does Model Rule 8.4(g) Mean by “Legitimate Advice or Advocacy,” and Whose Standard of 209 “Legitimacy” Will Be Applied? 7. Why Was the Exclusion for “Conduct Protected by the First Amendment” Removed from the New 212 Comment, and What Does this Deliberate Silence Betoken for its Intended Application to (and Chilling Effects on) Lawyers' Speech? B. States' Reception (and Widespread Rejection) of Model Rule 8.4(g) 213 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 EXPRESSING CONSCIENCE WITH CANDOR: SAINT..., 42 Harv. J.L. & Pub.... C. Justified Distrust of Speech Restrictions: “Cultural Shift” in the Legal Profession against Socially 217 Conservative Viewpoints 1. The ABA's Support for Expansive Abortion Rights, and Progressive Lawyers' Longstanding Advocacy for 225 Broad Restrictions on Speech Opposing Abortion 2. Recent Advocacy of Speech Restrictions and Compulsions Relating to Same-Sex Marriage 233 3. Rising Opposition to Free Speech on College Campuses and in Law Schools 243 D. “Professional Speech” and Model Rule 8.4(g): National Institute of Family & Life Advocates v. Becerra 245 IV. CONCLUSION 249 *175 INTRODUCTION I do none harm, I say none harm, I think none harm. --Thomas More, in A Man for All Seasons 1 It isn't difficult to keep alive, friends--just don't make trouble--or if you must make trouble, make the sort of trouble that's expected. --The Common Man, in A Man for All Seasons 2 *176 In June 1996, the Board of Professional Responsibility of the Supreme Court of Tennessee issued an ethics opinion (the “1996 Tennessee Ethics Opinion”) 3 that marked a new and troubling turning point in the already ongoing cultural movement in the legal profession to marginalize and deter its traditionalist moral dissenters. It involved a “devout Catholic” lawyer who had been court appointed to represent a client who was requesting a judicial bypass to Tennessee's statutory parental-consent requirement for minors seeking abortions. 4 In sum, the Board advised the lawyer: (1) it would be ethically improper to seek relief from the appointed representation on religious and moral grounds; and (2) it would be ethically suspect to offer counseling to the client with insights borne of the lawyer's religious and moral convictions concerning abortion, including the possible benefits of notifying her parents instead of pursuing the judicial bypass. 5 Twenty years later, in August 2016, the House of Delegates of the American Bar Association (“ABA”) adopted Rule 8.4(g) of the Model Rules of Professional Conduct (the “Model Rules”). Its provisions, which elicited strong external opposition and rapidly evolved only weeks before the vote occurred, included broad language prohibiting “discrimination” and “harassment” by lawyers in conduct “related to the practice of law.” 6 The Comment to Model Rule 8.4(g) defines “discrimination” as including “verbal ... conduct” (that is, speech) that “manifests bias or prejudice towards others” and “harassment” as including “derogatory or demeaning verbal ... conduct” (that is, speech). 7 Many lawyers and legal academics, both before and after its adoption, recognized Model Rule 8.4(g)'s deliberately broad prohibitions on lawyers' “manifest[ing] bias or prejudice towards others” and “verbal ... conduct” not involving *177 the representation of clients as effectively creating an ideological speech code for the American legal profession. 8 This Article explores the need to sustain strong protections for lawyers in maintaining their personal integrity relating to the practice of law, 9 and examines how recent developments in the legal profession are imperiling lawyers' “first freedoms” under the First Amendment to the United States Constitution. 10 It advocates for a robust understanding of lawyers' freedom to speak (or not speak) consistently with their religious and moral convictions. Part I sets the stage by considering the example of Saint Thomas More (1478-1535), who served as Lord Chancellor of England during the tumultuous reign of King Henry VIII 11 and was canonized as a saint in the Catholic Church in 1935, four hundred years after his martyrdom. 12 Part II considers the 1996 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 EXPRESSING CONSCIENCE WITH CANDOR: SAINT..., 42 Harv. J.L. & Pub.... Tennessee Ethics Opinion in detail, including academic scholarship that has criticized its narrow vision of the *178 lawyer's role as one separated from moral considerations, and its implicit expectations that lawyers must consistently subordinate and set aside their religious faith in deference to the positive law of lawyering. Part III examines Model Rule 8.4(g) and its reception in state courts, the practicing bar, and legal academia. It also considers how Model Rule 8.4(g) constitutes an armed-and-ready weapon for marginalizing and deterring expression by lawyers whose traditional religious and moral convictions on matters of sexual ethics dissent from those endorsed by the organized bar and currently dominant in the American legal profession. It also explains why the rule's history and its advocates' expressed objectives for a “cultural shift” in the legal profession make its adoption a significant risk to lawyers with such traditional views. Finally, it briefly considers the 2018 United States Supreme Court decision in National Institute of Family & Life Advocates v. Becerra, 13 how the Court's decision reinforces Model Rule 8.4(g)'s First Amendment infirmities, and why states should reject such a rule. I. SAINT THOMAS MORE: SILENCE FOR CONSCIENCE'S SAKE Saint Thomas More is venerated in the Catholic Church for his martyrdom, which followed his steadfast refusal to take the Oaths of Succession and Supremacy as required by successive acts of the English Parliament during the sixteenth-century reign of King Henry VIII. 14 After years resisting the King's coercion under color of law, including long imprisonment in the Tower of London, More was convicted of treason based on perjured testimony. 15 He was first sentenced to death by evisceration *179 and hanging, a horrific process of prolonged torture, but the King commuted the sentence to death by beheading. 16 The King's executioner brought his axe down upon More's neck and killed him on a summer day in 1535. 17 Why did More persist in refusing to take the Oaths? The answer begins with the words More is said to have spoken to the crowd before his beheading: “I die His Majesty's good servant, but God's first.” 18 The journey that led him there commenced with More's appointment as Lord Chancellor in 1529. 19 Shortly thereafter, the King asked him to confer with certain scholars and theologians who were already pursuing the “great
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