Judge Kane On “Lawyers of the Left” & Rule 8.4(g) Prohibiting Discrimination
November 28, 2016 (Fault Lines) — District of Colorado Senior Judge John L. Kane was asked his thoughts about the efficacy of the newly passed ABA Model Rule of Professional Conduct 8.4(g), which provides:
It is professional misconduct for a lawyer to:
(g) 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 limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
Judge Kane: It is remarkable how much disinformation is perpetrated because of ambiguity. Recall that Bernie Sanders was taken to task for responding to a question about “Black Lives Matter” by saying that all lives matter. Clearly all lives do matter, but the jingoistic expression “Black lives matter” was intended to describe a collective reaction to the killing of African-American males by police officers and implying that such a lethal practice did not occur similarly with white males in confrontation with police. Bernie was criticized harshly for being out of touch even though one could hardly question his life-long commitment to equal justice.
I think there is another ambiguity with the phrase, “Lawyers of the Left.” What should be advocated is “Lawyers for those who are left.” That is, those who cannot afford legal services or representation, who are left out in the dust and exhaust of our legal system.
Why prate about lawyers with politically leftist beliefs? Much like the ABA Model Rule 8.4 (g), both are exercises in narcissism. We don’t need comfort rooms adjacent to courtrooms as is demanded in college lecture halls for those whose feelings are hurt. We don’t need “triggers to warn sensitive lawyers they are in for a world of hurt.” We need lawyers who will adhere to the oath taken upon admission that includes a promise to delay no person’s cause for lucre or malice. We need lawyers who will put the client’s interests above their own ambition, ego and financial gain. We need lawyers who will bleed for their clients and not cry about it.
At first, I thought that this Model Rule 8.4(g) was just another indication of the ABA’s increasing irrelevance, as illustrated by its continuing decline in membership. The mortal wound to law as a profession was administered sometime ago by Justice Blackmun in his pompous plurality opinion in Bates & Osteen v. State Bar of Arizona, conferring upon lawyers for the first time a license to indulge in unabridged commercial free speech.
It simply is no longer a profession and the new Model Rule is further evidence of the demise. Making lawyers comfortable is not within the province of ethics; making lawyers provide competent and zealous representation of clients of the right or the left, rich or poor, irrespective of fees obtained is.