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May 05, 2023 Feature

Viewpoint: Penalizing Attorneys’ Offensive Speech May Be Satisfying, but at What Cost?

By Selena Fitanides

Policing offensive speech has become a national pastime in 21st-century America, including in the legal sphere. ABA Model Rule of Professional Conduct 8.4(g) aims to eliminate bias and enhance diversity by penalizing discriminatory verbal conduct (speech) in any context related to the practice of law. It has been the subject of much debate. Free speech advocates warn that Rule 8.4(g) is essentially a civility code provision whose purpose “is to adopt [an antidiscrimination] viewpoint within the profession,” thereby necessarily infringing upon constitutionally protected expression. The Rule’s proponents, on the other hand, reject its characterization as a civility rule targeting speech, arguing instead that its main effect would be to penalize unlawful, discriminatory conduct.

Putting aside the important constitutional considerations for a moment, let’s consider the practical impact of a rule like 8.4(g). An appeal currently before the Supreme Judicial Court of Massachusetts suggests that suppressing lawyers’ discriminatory speech may actually undermine the crucial goal of uncovering and ridding the justice system of the sort of pernicious, disruptive, structural bias that goes far beyond hurling slurs and hurting feelings.

Anthony Dew, a convicted sex trafficker, is seeking to set aside his 2016 guilty plea based on the discovery of several dozen decidedly uncivil, racist, and religiously bigoted Facebook posts made by a now deceased attorney appointed to represent Dew and thousands of other indigent criminal defendants who, like him, were members of racial and religious minority groups. The attorney’s highly offensive posts were not made in the context of his law practice, so they would not have implicated Rule 8.4(g), but when they were discovered, they exposed the attorney’s deep bias and called into question the adequacy of his representation of thousands of minority clients. The attorney’s speech certainly does not reflect well on our profession. But had he kept his views to himself while allowing his prejudices to influence his work in secret, he undoubtedly would have continued to be appointed as counsel for indigent defendants, and innocent African Americans and Muslims may have been wrongfully convicted as a result.

It’s worth considering whether professional conduct rules that encourage lawyers to conceal their prejudices are a greater threat to the integrity of our justice system than is that slice of discriminatory speech that is not already addressed by antidiscrimination laws. Restrictions on speech will never change minds. To do that, we must confront bigotry with righteous speech.

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    By Selena Fitanides

    Pioneer Public Interest Law Center

    Selena Fitanides is a staff attorney at Pioneer Public Interest Law Center in Boston. She previously worked at the American Civil Liberties Union, and she was a lecturer in law at Boston University Law School.