AG says proposed anti-discrimination rule for lawyers is unconstitutional

State Attorney General Herbert Slatery is formally opposing a proposed change to professional conduct rules for lawyers that he contends would violate the constitutional free speech rights of Tennessee attorneys, reports the Nashville Post.

The rule change, proposed jointly by the Tennessee Bar Association and the Tennessee Board of Professional Responsibility, would make it a violation for lawyers to “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.”

Slatery and others, like the Family Action Council of Tennessee’s David Fowler, argue the new rule would unconstitutionally limit attorneys’ free speech, and he has urged the Tennessee Supreme Court not to adopt the rule. The court accepted comments about the proposed rule until last week and will decide whether to adopt it in the coming months.

(Note: Slatery issued a brief opinion on the matter along with expanded comments filed with the court, HERE. Fowler says in a blog post that he fears the rule would mean loss of his law license when advocating for Christian conservative causes. A bar association article supporting the rule is HERE.)

TBA President Lucian Pera, an ethics lawyer in Memphis, explained the reasoning behind the proposed rule in a recent journal article.

“My position is simple,” he wrote. “We need a rule banning this kind of conduct — discrimination and harassment — by lawyers in their activity as lawyers.”

And he argued that punishing lawyers for discriminatory and harassing speech does not constitute a violation of free speech rights, though Slatery and others strongly disagree. Slatery argued that the inclusion of sexual orientation and gender identity in the protected categories goes above and beyond what is required by state and federal anti-discrimination law — inappropriately so, he wrote.

“It is no secret that individuals continue to hold diverse views on issues related to sexual orientation and gender identity, and those who hold traditional views on sexuality and gender frequently do so because of sincerely held religious beliefs,” Slatery wrote. “By deeming as ‘professional misconduct’ any speech that someone may view as ‘harmful’ or ‘derogatory or demeaning’ toward homosexuals or transgender individuals, [the proposed rule] would prevent attorneys who hold traditional views on these issues from ‘engag[ing] those who disagree with their view in an open and searching debate.’”

3 Responses to AG says proposed anti-discrimination rule for lawyers is unconstitutional

  • Cannoneer2 says:

    It’s nice to see the Attorney General’s office doing something. If I were in charge, I’d cut their budget in half and reduce their size, since they apparently did nothing with regard to the recent Memphis shenanigans. I see an opportunity for Governor Haslam to save some money there. If Memphis has any more prime real estate to get rid of at $1000, I have funds ready.

  • Tommy Ray McAnally says:

    LET’S TALK ANTI-AMERICAN. LOOKS LIKE TO ME FROM HASLAM ON DOWN THEY ALL SUPPORT ILLEGALS, REFUGEES, MUSLINS AND ALL THE OTHERS THAT SHOULD BE INCLUDED WITH THIS GROUP. LEGISLATORS WHAT ABOUT THE AMERICANS THAT ARE PAYING ALL TAXES HERE IN TENNESSEE WHAT DO WE GET OTHER THAN THE SHAFT? All you legislators that support the above groups go get 15 or 20 of them and take them HOME WITH YOU!

  • Michael Lottman says:

    On the surface, the Attorney General is probably right that trying to put this kind of limit on attorney speech and conduct is doomed to overbreadth if not outright failure because of the many roles attorneys play in their professional capacities, the varied individuals and entities they may be representing and speaking for whether or not they agree with the views expressed, and the unique nature of attorney “speech” that cannot be subjected to a single (or simple) standard. It seems to me that the current Rules of Professional Conduct are already sufficient in this regard.

    Still, there are things about the AG’s opinion that make me wonder if it is a legal or political document.
    At least in three places, his opinion argues that the proposed rule is unconstitutional because it “includes no exception for speech or conduct that is motivated by one’s religious beliefs,” and that such views are protected from regulation because they are often “based on decent and honorable religious or philosophical premises” (p. 4, 9). Religious freedom, in my opinion, has nothing to do with this issue. There is no blanket exemption for anyone’s purported religious beliefs that overcomes the legal and constitutional prohibitions of discrimination and/or harassment on the basis of race, ethnicity, gender, or other protected characteristics. It is simply not the law in all cases, though some would like it to be, that “the Free Exercise Clause protects not only the right to believe, but also the right to act according to those beliefs,” regardless of the nature of the particular belief, the action taken, or subject/target of that belief. The fact that someone’s “religion” tells him that the earth is flat does not empower him to run to the edge and jump off.

    It seems peculiar, moreover, that virtually the only specific examples of unconstitutionality the AG can foresee lie in the areas of gender orientation, sexuality, gender identity, marital status, etc. (especially same-sex marriage)–that is, the sanctioning of attorneys who dare to speak or argue for “traditional” views on these subjects (p. 4, 9,12). Is that the best he can do? I think attorneys are and will remain free to say what they want about gay marriage, but since the U.S. Supreme Court has upheld its legality, they better be careful what actions they take in their official capacities or what arguments they make in court. Not, mind you, because of what the bar association might do so much as the risk of adverse federal or state court decisions, fines for contempt of court, malpractice awards to disgruntled clients, and “Rule 11” sanctions for frivolous or incompetent pleadings or submissions. Anyone can claim any bizarre premise as a “sincerely held religious belief,” but whether this new rule is adopted or not, they will find that they were and still are equally bound by the law of the land.

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