Can you say that?

In the latter months of this year, the American Bar Association has considered two major changes to its Model Rules of Professional Conduct. Both govern speech by lawyers. The ABA House of Delegates approved the first change--to amend the regulations governing pre-trial and trial publicity--at its August 1994 annual meeting. Several ABA committees are now considering a second change, which would add new regulations restricting speech by attorneys that might indicate personal bias in such areas as race, religion, national origin, disability, and sexual orientation.

These changes and proposals vitally affect lawyers because many state courts will likely follow the ABA's lead and promulgate similar regulations at the state level. Lawyers should be especially concerned because state rules of ethics, unlike the ABA proposals, are not "model" rules but real law, which can result in attorney discipline, malpractice liability, and contempt.

The two proposals are quite different. The first, dealing with pre-trial publicity, expands and clarifies a lawyer's right of free speech. The second, dealing with speech that suggests a biased attitude, restricts one's right of free speech.

Pre-trial and Trial Publicity

The ABA House of Delegates approved changes to Model Rules 3.6 and 3.8, which relate to pre-trial publicity, in reaction to the U.S. Supreme Court opinion in Gentile v. State Bar of Nevada.(1) The Nevada case involved an alleged violation of the state supreme court's pre-trial publicity rules, patterned after ABA Model Rule 3.6. Attorney Gentile held a short press conference a few hours after Nevada had indicted his client. He made a brief statement but declined to answer reporters' questions seeking more detailed comments. Six months later, a jury acquitted Gentile's client of all counts.

The state bar then filed a disciplinary complaint against Gentile. The court issued a private reprimand against him, but a divided United States Supreme Court reversed.

The Nevada rule, in general, prohibited an attorney from making an extra-judicial public statement "if the lawyer knows or reasonably should know" that it would have "a substantial likelihood of materially prejudicing an adjudicative proceeding."

However, a later subsection of this rule listed a number of statements (for example, the general nature of the claim or defense or information in a public record) that a lawyer may make, "notwithstanding" the previous subsections.(2) The Nevada Bar argued that this subsection did not create a safe harbor and that an attorney could still be disciplined if the state determined that making any statements might prejudice the proceedings.

Justice Anthony Kennedy, for the Court, held that the "notwithstanding" language misled Gentile into thinking that he could give his press conference without fear of discipline so long as he stayed within the safe harbor provisions. Justice Kennedy emphasized the free speech concerns of attorney Gentile:

One central point must dominate this

analysis: this case involves classic political

speech. The State Bar of Nevada

reprimanded petitioner for his assertion,

supported by a brief sketch of his

client's defense, that the State sought

the indictment and conviction of an

innocent man as a "scapegoat," and

had not "been honest enough to indict 

the people who did it; the police

department, crooked cops." ... At issue

here is the constitutionality of a

ban on political speech critical of the

government and its officials.(3)

The ABA responded to the Supreme Court's holding in Gentile by rewriting Model Rule 3.6(4) to clarify its meaning and to create a true safe harbor. First, the change makes dear that the rule only applies to lawyers who participate or have participated in the investigation or in the litigation.

The drafters recognized that the ethics rules should not gag lawyers who have never had any connection with the proceeding. The right to comment on the government process is fundamental, and it is appropriate for lawyers to explain a proceeding for laypeople.

Second, the drafters eliminated the provisions that the Supreme Court in Gentile found to be too vague. Subsection (b) of the new Model Rule 3.6 states explicitly that a lawyer may announce details such as the claim, offense, or defense involved; information in a public record; the result of any step in the litigation; a request for assistance; and so forth.

Right to Respond

The drafters also added an entirely new section, which authorizes a lawyer to make a statement

that a reasonable lawyer would believe

is required to protect a client from the

substantial undue prejudicial effect of

recent publicity not initiated by the

lawyer or the lawyer's client. A statement

made pursuant to this paragraph

shall be limited to such information as

is necessary to mitigate the recent adverse

publicity.(5)

Because of this new section, a lawyer will now have a right to make a response, where silence might result in prejudice to the client.

If one is worried that lawyers might abuse this right and respond inappropriately, courts, in adopting this new ABA model rule, could add to a comment or to the relevant subsection, a clause like the following: "unless a court constitutionally orders otherwise, . . . " This language would serve to emphasize the court's inherent power to regulate the lawyers who practice before it.

Reference to a court order would allow a court to discipline an attorney who deliberately violated a constitutional court order regarding pre-trial and trial publicity. In such cases, a judge, considering the specific facts and circumstances, could issue a narrowly tailored order that gives the attorney a fair warning about what is prohibited. The party seeking to gag the attorney would have the burden of making its case. If an attorney is to be gagged, let the judge do it with a narrowly tailored order after notice is given and a hearing is held.

New Model Rule 3.8(g) also cautions the prosecutor to refrain from extra-judicial comments that are substantially likely to heighten "public condemnation of the accused."

Speech Suggesting Bias

Forces within the ABA are now urging it to add a section to Model Ride 8.4 to make a lawyer subject to discipline for engaging in speech that indicates bias on the basis of race, sex, sexual orientation, socioeconomic status, and so forth. One or more proposals are expected to be considered at the ABA's midyear meeting in 1995.

If the ABA does not revise its discipline rules, then there are those who urge it to issue a policy statement. Presumably the proponents would then use this statement to urge their states to make a lawyer subject to discipline for making statements that indicate inappropriate bias. Respect for the First Amendment should cause the ABA to reject such proposals, whether they call for a formal discipline ride or a policy statement.

Let me make clear that I do not support lawyers who propose, for example, racial or sexual discrimination. Nor do I think that lawyers should tell racist, ethnic, sexist, or similar jokes. We should not laugh at these jokes or otherwise indicate support of this kind of speech. Instead, we should indicate, by our speech, that we do not condone discriminatory remarks.

The best weapon against speech we do not like is more speech, not enforced silence. As Justice Oliver Wendell Holmes opined more than 70 years ago, "The best test of truth is the power of the thought to get itself accepted" in the marketplace of ideas.(6) It is appropriate to indicate our disapproval, but it is quite another matter to use the authority of the state to punish this kind of speech. That violates the First Amendment.

What the ABA does is not, of course, state action. However, if the ABA adopts a model rule that disciplines lawyers because of what they say, and a state is persuaded to adopt such a provision, the result is state action, subject to the First Amendment.

Even if the ABA adopts "only" a policy statement, it puts its prestige behind a proposal that limits one's First Amendment rights. The ABA should strive to protect the First Amendment, not bow to the politics of the moment.

Other Side of the Coin

Some proponents of the proposed rule argue that speech that promotes or urges discrimination is, like obscenity and other categories of unprotected speech, not worthy of protection. To make such distinctions severely undercuts the First Amendment. The reason why the Court permits Nazi organizations to march in Skokie, Illinois,(7) is not because that speech is worthy of protection but because the Nazis' odious political message has a First Amendment right to be heard. The same First Amendment principle that protected the Reverend Martin Luther King, Jr., while marching in Selma, Alabama, also protects Nazi sympathizers marching in Skokie.

Any rule that would give a judge the power to stop the Nazis would have given a different, less sympathetic judge the power to stop the freedom fighters from marching in Selma. The courts have wisely decided that no state official should have such power.

The state can punish people for what they do, not what they say. Some supporters of restricting speech recognize this problem and disingenuously label as "verbal conduct" that which they wish to prohibit. But "verbal conduct" is simply speech, not conduct. Such sophistry should not fool anyone.

To refuse to serve a meal or rent a room to someone because of the person's race is conduct, and it may, and should, be made illegal. To assert that people of a certain race are superior or inferior is, in my view (and the view of any civilized person), to state something that is scientifically and morally wrong. But it is still speech. That is why the Nazis can march in Skokie. And, while the Supreme Court will permit regulation of political speech as to its time, place, and manner, regulation of its content is nearly always prohibited.(8)

If burning the U.S. flag is constitutionally protected speech--and it is--it is hard to understand why mere words are "conduct." It is a strange world where burning something is speech and protected, but saying something is not speech and is not protected.

The real thrust of the proposals to ban politically incorrect speech is to punish intent, as illustrated by various questions that Professor Richard Duncan of the University of Nebraska posed to George Kuhlman of the ABA. Here is one of the hypothetical situations that was offered:

Suppose several attorneys are representing

clients at the closing of a business

transaction. During a lull in the

meeting, Attorney A asked two of

his colleagues what they think of a

gay rights law, currently before the

state legislature. Attorney B says he favors

the legislation "because gays are

an oppressed minority," and Attorney

C says he opposes the legislation "because

homosexuality is immoral and

unnatural."

When I posed this hypothetical to

George Kuhlman, counsel to the ABA

committee that drafted the speech

code, he said that Attorney C's words

"might be a violation" of the ride. Attorney

B's statement, which is the politically

correct one, according to the

ABA, is not a violation.(9)

If the ABA is able to push through this or any similar anti-speech proposal, a future Joe McCarthy will warmly thank those who have done so.

Some of the proposals before the ABA urge discipline for those who "knowingly manifest by words" bias that is based on, among other things, "socioeconomic status."

Thus, we have the situation where the ABA will find itself recommending that a lawyer, in the course of lobbying against a capital gains tax cut, should be disciplined for saying something that is offensive regarding socioeconomic status ("I hate the filthy rich") but provides no discipline when a lawyer engages in actual conduct involving, for example, child abuse of someone who is not a client. Model Rule 8.4(b) prohibits criminal acts that reflect adversely on a lawyer's honesty. Ironically, the rule's commentary observes that "many kinds of illegal conduct" are not related to a lawyer's fitness to practice law. Lawyers, however, should be disciplined for criminal conduct that relates to a breach of trust.(10)

Those who propose disciplining lawyers for what they say (as opposed to what they do) often seek to distinguish, for discipline purposes, "legitimate advocacy" from the lawyer's personal activities. Apparently, a lawyer could lobby on behalf of a paying client to repeal the Fourteenth Amendment but could not lobby on his or her own behalf to repeal the Fourteenth Amendment. It is a strange rule that would discipline a lawyer for saying something out of personal conviction but would protect a lawyer who said exactly the same thing for a client.

`The List'

Finally, those who favor disciplining lawyers for politically incorrect speech do not explain how they compile the list of forbidden topics. Typically, the list, in its most recent formulation, is limited to race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status. What if the lawyer makes inappropriate jokes about someone's weight or height? What if the lawyer makes fun of a person's regional origin (for example, "I don't like Northerners" or "You are a hillbilly")?

Why are sarcastic remarks based on military service excluded? Last year, the newspapers reported that a Clinton White House official refused to speak to someone because he was in military uniform. If the White House official is a lawyer, should that person be disciplined? Or is that kind of prejudice fine?

In other contexts, one might argue that the state, in seeking to eliminate a perceived evil, may take one step at a time. But not so in free speech cases.(11) The state may not pick and choose what are the disfavored topics.(12) Only if the actor has already committed an independently criminal act may the state exact further punishment on the basis of intent and motive.(13)

When we protect speech, even offensive speech, we are protecting that which has made us a great nation and an example for other nations to follow. The ABA should not, even in a sense of compromise, give any support to those who would discipline lawyers (or anyone else) for what they say or think, even when we know that what they say or think is abhorrent. The amendments dealing with trial publicity move in the direction of free speech. The proposals that deal with biased speech move in the direction of censorship.

Notes

(1) Ill S. Ct. 2720 (1991); see generally 4 RONALD ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW; SUBSTANCE AND PROCEDURE [sections]20.25, at 143 (2d ed. 1992) (discussing Gentile).

(2) Ill S. Ct. 2720, 2737-38.

(3) Id. at 2740 (opinion of Kennedy, J., joined by Marshall, Blackmun, and Stevens, JJ.) (emphasis added).

(4) THOMAS D. MORGAN & RONALD D. ROTUNDA, 1995 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1995).

(5) ABA Standing Committee on Ethics and Professional Responsibility, Criminal Justice Section, recommendation with report to the House of Delegates (1994), approved as Model Ride 3.6(c).

(6) Abrams v. United States, 250 U.S. 616, 624 (1919) (Holmes, J. dissenting).

(7) Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978); see generally 4 ROTUNDA & NOWAK, supra note 1, at [sections]20.32(b) n. 17.

(8) Heffron v. International Soc'y for Krishna Consciousness, 452 U.S. 640, 648 (1981).

(9) Richard Duncan, A Speech Code for Lawyers, WALL ST. J., Feb. 3, 1994, at A14.

(10) Model Rule of Professional Conduct 8.4.

(11) R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2543-48 (1092); see also ROTUNDA NOWAK, supra note 1, at [subsections]20.37-20.40.

(12) See Ronald D. Rotunda, A Brief Comment on Politically Incorrect Speech in the Wake of R.A.V., 47 SMU L. REV. 9,17-18 (1993).

(13) Wisconsin v. Mitchell, 113 S. Ct. 2194, 2198-2202 (1993).

Ronald D. Rotunda is a professor of law at the University of Illinois School of Law. The opinions expressed in this article reflect the views of the author and not necessarily those of TRIAL of TRIAL or ATLA.