The involvement of a Florida lawyer as a prominent figure in the Charlottesville tiki-torch hate march has caused some to again visit the issue of whether the bar should police its ranks and get rid of bigots.
Figuring out whether there’s room for hate speech in our ranks is not an academic inquiry. There’s a lot of bad among us.
Charlottesville involved a character who calls himself Invictus. He’s a “retired” Florida lawyer who has grafted himself to prominent white supremacist Richard Spencer, like a boil on a virus. There’s also Thomas Farr, a current candidate for appointment to the federal bench in North Carolina who was an acolyte and mentee of Jesse Helms and other prominent haters. And odious accused child molester “Judge” Roy Moore was both a lawyer and chief justice of the Alabama Supreme Court before he ventured into hate politics.
Every few years there’s a bar applicant or lawyer somewhere who finds himself (they’re almost always men) in hot water because of expressions of discriminatory animus or membership in hate groups. Thirty years ago Matthew Hale was denied entry to the Illinois bar because of outrageous racist statements he made and his proud membership in hate groups. Since then, a number of lawyers have been disciplined for saying awful racist things about judges, though I’m not sure whether it was more because the targets were judges as opposed to members of otherwise protected classes. Closer to home, we had a lawyer disciplined for calling a party an “Arab piece of s–t”, though it was probably because he did it in court rather than on the courthouse steps. In another recent Connecticut case, a lawyer avoided discipline when his racist rantings (trust me, they were bad) were made outside of court. The Grievance Committee found that the First Amendment trumped character and fitness concerns.
That’s always the issue in these cases: free expression versus character and fitness. My friend Steve Pevar from the ACLU was always delighted to defend Nazis’ rights of free speech. He loved the looks he got when the told his clients he was a Jew. He’s a better man than me. I’d just as soon punch these guys in the face; I’ve always leaned toward the Antifas. I remember working with the Klan on a demonstration a few years ago, frustrated that my job was to protect them from those who wanted to give them a whooping.
There’s a proposed amendment to Rule 8.4 in the works in Connecticut and elsewhere that’d make it an ethics breach 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.” It’s on the slow track because some of us are uncertain how and where to draw the line between private conduct and the practice of law.
Would such a rule outlaw those lawyers who only want to represent men (or women) in divorces? Is representing a client more like selling a good or service or baking a cake? (There’s a Massachusetts case that says it’s the former; we’ll have to wait for SCOTUS to tell us whether cake-baking is an area of protected speech.) If I take a case for an unpopular client, am I endorsing their hate? Conversely, if I am a hater, can I build a practice by catering to others of my ilk? Can (or should) I be disciplined for doing so?
I guess if I had to vote, I’d vote for discipline in cases where hate speech occurs in a court setting or otherwise interrupts the orderly process of the administration of justice. I’d leave other instances of odious conduct to other forums, such as public opinion or social shaming. Of course, I’d vote to keep the Roy Moore’s of the country off the bench and out of Congress, though I’d probably not disqualify them from running or seeking appointment. Calling bigots out might be more fun than punching them in the face.
Mark Dubois, a former Connecticut chief disciplinary counsel, is with Geraghty & Bonnano in New London.