AUSTIN, Texas (CN) - A new American Bar Association rule that bars attorneys from committing gender discrimination will likely not survive a court challenge because it is overbroad, Texas Attorney General Ken Paxton said Tuesday.
In a nonbinding advisory opinion, Paxton said the August changes to the ABA's Model Ethics of Professional Conduct Rules infringe on the free speech rights of State Bar members.
The rule deems it professional misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of ... sexual orientation, gender identity, marital status, or socioeconomic status in conduct" relating to practicing law.
"The Framers of the United States Constitution fashioned the constitutional safeguard of free speech to assure the 'unfettered interchange of ideas' for bringing about 'political and social changes desired by the people,'" Paxton’s eight-page opinion states. "Contrary to these basic free speech principles, Model Rule 8.4(g) would severely restrict attorneys' ability to engage in meaningful debate on a range of important social and political issues."
State Sen. Charles Perry, R-Lubbock, asked for Paxton's opinion in September. Perry said the rule change "has caused fear in attorneys all over Texas who have faith in God."
Perry asked whether lawyers could be disciplined or disbarred for "challenging the merits of same-sex marriage" during a legal education class, or for "being part of a legal association that holds religious beliefs that marriage is between one man and one woman and that a person's gender is fixed at birth.”
Paxton notes the U.S. Supreme Court has ruled that attorneys' free speech rights are somewhat restricted in the courtroom and outside the courtroom when speaking about a pending case. But the rule change "extends far beyond the context of a judicial proceeding to restrict speech or conduct in any instance when it is 'related to the practice of law,'" he writes.
The new rule could also restrict an attorney's religious liberty and prevent him or her from zealously representing faith-based groups, Paxton said.
"If an individual takes an action based on a sincerely-held religious belief and is sued for doing so, an attorney may be unwilling to represent that client in court for fear of being accused of discrimination under the rule," the opinion states.
Linda A. Klein, president of the ABA, said Paxton misinterpreted the new anti-discrimination rule.
“This proposed rule expressly states that it in no way infringes on free speech or the ability of an attorney to zealously defend any client (or choose not to defend a client) based on the client’s beliefs,” Klein said in a statement. “This proposed rule exemplifies the ABA’s strong policy that there is no place in the practice of law for discrimination or harassment.” (Parentheses in original.)