AUSTIN, Texas (CN) — The State Bar of Texas refused Thursday to kill consideration of an anti-bias rule by the American Bar Association, ignoring repeated warnings by Republican Attorney General Ken Paxton that the rule is vague and infringes attorneys’ free speech and religious rights.
The State Bar’s board of directors approved referring the Model Rule 8.4(g) to an internal committee for further review after seven hours of public debate and closed session discussions during a virtual meeting on Zoom during the Covid-19 pandemic.
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 board’s decision comes one day after Paxton urged it to kill further consideration, arguing the rule “extends far beyond the context of a judicial proceeding” to restrict speech “in any instance” regarding practicing law.
“The broad nature of the rule could apply to an attorney’s participation in a continuing legal education panel discussion, authoring a law review article, or informal conversations at a bar association event, among other things,” Paxton stated. “In other words, Model Rule 8.4(g) will suppress thoughtful and complete exchanges about complex issues.”
Paxton said adoption of the anti-bias rule is not necessary, arguing the Texas Disciplinary Rules of Professional Conduct already address discrimination issues “through narrower language that provides better clarification” about the described conduct. Paxton also cited a nonbinding advisory opinion he issued in 2016 against the rule.
Josh Blackman, a constitutional law professor at South Texas College of Law Houston, also urged the board to not adopt the model rule and “rubber stamp” an ABA proposal that he says burdens free speech.
“I appreciate the bar’s desire to promote racial and other types of equality, but moving forward with 8.4(g) would fail to achieve those goals,” he said Thursday. “It would be challenged immediately in court. I suspect the same plaintiffs who challenged the integrated bar will line up for an encore suit. And the Texas attorney general, who ruled the proposal unconstitutional, has hinted he will file suit as well.”
Blackman said the rule’s validity would “remain in doubt for years” if a single trial court enters a preliminary injunction blocking it. He urged the board to instead write a more narrowly tailored rule that directly addresses “specific problems attorneys face” practicing law in Texas.
Russell Parish, with Parish & Wright in Austin, said changes to the current rules are not justified by “current political anger” and that it would make it a violation for Christian attorneys to share their faith.
“Candidly, the new proposal is only a model of left-wing political wokeness and P.C. virtue signaling as has been shown here today,” Parish said. “I believe you all should not be taking up anti-Christian, anti-free speech restrictions on lawyers … The rule talks about ‘gender identity,’ which in reality is something only God decides.”
Melissa Thrailkill, a family law attorney in Dallas, bluntly said “we have some bad legal analysis going on here” among those speaking in opposition to the model rule.
“The rule clearly says you can represent whoever you want,” she said. “I would also recommend not taking any advice from Attorney General Ken Paxton, he should actually be disbarred.”
Paxton was charged in 2015 with a third-degree felony count of failing to register with the Texas Securities Board and two-first degree felony counts of securities fraud. Five years later, he is still awaiting trial. He faces up to 99 years in state prison if convicted.
Several of the speakers spoke in favor of a separate motion to strip State Bar President Larry McDougal of his spokesman powers over controversial statements he made online. A now-deleted blog post from July argued that the wearing of a Black Lives Matter shirt by a worker at a polling place constitutes illegal electioneering.
In another blog post from 2015, McDougal allegedly posted that Black Lives Matter “is a terrorist group” because it has “publicly called for the death of just not police officers but also white Americans.”
McDougal is also accused of posting an image on social media of police pinning a person to the ground by the face with the caption “Justice. It usually happens before the trial.”
The uproar that ensued forced McDougal to issue a public apology on July 11.
“I understand my comments, though not how I intended them, have been hurtful to many members of our bar,” he said at the time. “That was not my intention, at the least. For that, I am truly sorry. These comments were mine and mine alone.”
Attorney Bob Bennett spoke in support of McDougal, saying the bar president is “not a racist” and that he is unable “to fix every wrong in society” today.
“I understand what you are saying, I understand the pain that you feel, I understand the emotion that is attached to it,” Bennett said. “But to go back eight and longer years and to go through someone’s emails when he was not president certainly infringes on the right on freedom of expression.”
Attorney Tamika Harris blasted the board for its inaction against McDougal, saying it makes non-white attorneys “feel like we do not belong in the State Bar, that we are not valued as attorneys.”
“Nothing less than the removal of MacDougal is just or acceptable,” she said. “Four-hundred years ago, my people were brought here in chains without a choice. Now as a lawyer, I am sitting without a choice to be a member of the bar [with someone] who does not wish me to be a member, who does not wish to include me and who does not wish to uphold the integrity of the profession.”
When closed session ended, State Bar Director Alistair Dawson “reluctantly” withdrew his motion against McDougal. He cited unwanted “collateral damage” in the likelihood that McDougal sues the bar if the motion passed.
“I do not believe President McDougal should be the spokesman for the bar,” Dawson said. “He has exercised extraordinarily bad judgment on several occasions and – in some cases – no judgment whatsoever.”
Dawson then introduced a motion establishing a code of conduct for State Bar executives and directors, which the board passed on a roll-call vote. Dawson explained that a similar code of conduct is in place for Continuing Legal Education classes in Texas.