The South Carolina Supreme Court did what was right by rejecting an ABA rule that would infringe on lawyers’ religious freedom rights.
In 2016, the American Bar Association (ABA) issued a new Model Rule that infringed on the First Amendment rights and religious liberty of lawyers in South Carolina and all over the nation. Earlier this month, however, the South Carolina Supreme Court rejected the change, becoming the first court in the nation to issue a formal, public, outright denial of the proposed rule.
Why this is a major victory for lawyers with religious convictions can only be appreciated with an understanding of the power the ABA holds over lawyers.
Though a private, un-obligatory trade association, the ABA wields much influence and power over all lawyers and their conduct. In nearly every state, a law student must graduate from an ABA-accredited law school before the student may take the bar examination – this power to accredit schools is given willingly to the ABA by the state. As a requirement to receive accreditation from the ABA, a school must teach the ABA’s ethical guide for lawyers, the Model Rules of Professional Conduct, and administer a test on those rules (changes to the Model Rules are reflected on this test the year following their adoption). Additionally, the ABA Model Rules and all its changes are regularly adopted by state courts, meaning they become actual, real law that all lawyers must follow. As you can see, changes to the ABA’s rules affect current and future lawyers immensely.
As part of their annual conference, the ABA reviews and proposes changes to the Model Rules of Professional Conduct. During the 2016 annual convention, the ABA approved changes to Model Rule 8.4(g), the purpose of which is “maintaining the integrity of the profession” and covers professional misconduct. The rule codifies that lawyers should never engage in harassment or discrimination on the basis of “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.”
Christian Attorney Discusses Rejected Rule Infringing On Relig...
Christian attorney, Elizabeth Wright, sits down with us to discuss the SC Supreme Court's decision to reject ABA Model Rule 8.4(g) and its impact on religious liberty in South Carolina.Posted by Palmetto Family Council on Friday, June 30, 2017
This new language subjects lawyers to a burdensome code of conduct that would infringe on First Amendment rights and religious liberty. The new environment could be dangerous to lawyers with religious convictions, explains Bradley Abramson of Alliance Defending Freedom:
“The ABA’s new Model Attorney Misconduct Rule 8.4(g) would subject attorneys to professional discipline for merely engaging in speech that another might find ‘derogatory,’ ‘demeaning,’ or ‘harmful’ – terms so broad and subjective as to sweep in a host of constitutionally protected speech.
The new rule makes clear that lawyers could find themselves in professional hot water for engaging in prohibited speech, not only while in court or representing a client, but also in their internal law firm communications, while engaging in bar association activities, during business functions, and even in social settings.”
In other words, a lawyer – inside or outside the court, mind you – could be disciplined by the state for using what another person deems as derogatory, demeaning or harmful speech. As you can imagine, this forces lawyers who have religious conviction against same-sex marriage or transgenderism into a difficult dilemma – conform to the ABA code of conduct or face possible disbarment or suspension from the practice of law.
The reasoning for this change? In the ABA’s own words is because:
“There is a need for a cultural shift in understanding the inherent integrity of people regardless of their race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation, marital status, or disability, to be captured in the rules of professional conduct.”
Or as Ronald Rotunda in a piece for the Heritage Foundation more candidly explains the ABA’s reasoning:
“(The ABA) must change the Model Rules not to protect clients, not to protect the courts and the system of justice, and not to protect the role of lawyers as officers of the court. No, the purpose is much more grandiose: to create ‘a cultural shift.’”
But, for the time-being, the First Amendment rights and religious liberty of South Carolina lawyers remains intact thanks to the South Carolina Supreme Court’s decision. The decision was preceded and informed by an opinion by South Carolina Attorney General Alan Wilson at the request of Representative John McCravy and by the opinion from the South Carolina Bar’s Committee on Professional Responsibility who called the rule “overbroad.”
Every person deserves fair legal representation without discrimination, but this rule was overbearing and unnecessary and would have put at risk Christian attorneys with sincere-religious convictions. The South Carolina Supreme Court did what was right and defended First Amendment rights and religious liberty in South Carolina.
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