Lawyers from Illinois and free speech advocates have lined up to ask the Illinois Supreme Court to reject a proposed new attorney anti-discrimination rule, that they said could result in a "speech code" under which conservative lawyers in Illinois could be subjected to professional discipline, and potentially the loss of their law license, if they express opinions on politics or social issues disfavored by the state's liberal majority.
On Nov. 15, the Illinois Supreme Court's Rules Committee will publicly consider the adoption of a controversial new rule, known as Proposal 22-06.
Under 22-06, the high court would be asked to revise Rule 8.4(j) of the Illinois Rules of Professional Conduct, which the state courts use to regulate the behavior of practicing attorneys in the state.
Donald P. Eckler
| Freeman, Mathis & Gary
Notably, the Rules of Professional Conduct empower the Illinois Attorney Registration and Disciplinary Commission to evaluate claims against attorneys accused of professional and personal misconduct. The ARDC can then recommend the Illinois Supreme Court mete out punishments against those attorneys, potentially including suspension or disbarment. Such actions can prohibit lawyers from continuing to practice law, threatening their livelihood and source of income for them and their families.
The current version of Rule 8.4(j) already prohibits lawyers from violating anti-discrimination laws or ordinances, in any way that "reflects adversely on the lawyer's fitness as a lawyer." The rule also requires that regulators must evaluate any claims against a lawyer under 8.4(j) must be judged based on "consideration of all circumstances" surrounding the alleged discriminatory act.
Under the proposed rule change, 8.4(j) would be amended to say lawyers cannot "engage in conduct in the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, gender expression, marital status, military or veteran status, pregnancy, or socioeconomic status."
It further removes the requirements that regulators evaluate the accusations in totality, but instead sets a new standard that lawyers merely needed to "reasonably know" that their words or actions would be considered discriminatory.
The proposal, however, would expressly exclude from disciplinary consequences otherwise discriminatory efforts by lawyers to make representation or hiring decisions based on race, gender of other characteristics that are designed to promote "diversity and inclusion" in the legal profession or extend legal services to "underserved populations."
The proposed new rule also expressly includes provisions exempting speech and conduct "protected by" the U.S. Constitution and Illinois state constitution.
Proposal 22-06 was forwarded to the Rules Committee by the Illinois State Bar Association, which asserted the rule changes are needed to keep Illinois in line with "a movement among a number of states to address lawyer harassment and discrimination in a better and clearer way."
"The 'perfect' rule that balances all perspectives and concerns may not exist. But overall, the ISBA believes ... Illinois should not be content with the status quo and instead should be on the side of doing something (sic) about harassment and discrimination in the profession," ISBA said.
They were joined by other supporters of the measure, including organizations like Women Lawyers on Guard, an Arlington, Virginia-based group focused on addressing sexual harassment and alleged ongoing gender discrimination in the legal profession and in American society overall.
Women Lawyers on Guard said rules like 22-06 are needed to ensure Illinois lawyers remain "leaders of social change."
They said the proposal should be "properly viewed as prohibiting abusive behaviors that threaten the credibility of lawyers and are inconsistent with the profession’s values, and it targets abusive behaviors by lawyers directed at other persons in connection with the lawyers’ practice of law."
In written comments submitted to the Rules Committee, opponents of 22-06 significantly outnumbered supporters.
Lawyers speaking against the rule change said the proposal would chill lawyers' ability to speak freely, as many - particularly those holding political and social views out of step with the 'social change' sought by the progressive elite in Chicago and Springfield - would face a choice to self-censor their speech and association with disfavored political and religious communities who may hold traditional views or beliefs now considered "discriminatory," or risk potential discrimination complaints and potential disciplinary proceedings before state officials.
Many opponents noted Illinois Proposal 22-06 is modeled after a similar rule imposed by the American Bar Association, which several courts, including federal judges and state supreme courts, have ruled violates lawyers' rights to free speech and freedom of association.
Opponents say the new rule is too broad and too vague, inviting potential disciplinary actions over lawyers' speech and conduct far outside the courtroom or official professional legal activities.
"Because attorneys often are the spokespersons and leaders in political, social, or religious movements, a rule that can be employed to discipline an attorney for his or her speech on such issues should be rejected as a serious threat to freedom of speech, free exercise of religion, and freedom of political belief in a diverse society that continually births movements for justice in a variety of contexts," the Christian Legal Society (CLS) wrote in comments to the Rules Committee.
The CLS noted the rule change could potentially pose a risk to the ability of religious organizations to secure skilled legal representation and counsel, as lawyers could fear their association with traditional orthodox congregations or groups could prompt discrimination complaints.
"An attorney should not have to worry about whether her volunteer work treads too closely to the vague line of 'conduct related to the practice of law,' yet the proposed rule would invariably breed such fear," the CLS wrote.
Such concerns were echoed in comments from other Illinois practicing attorneys, prominent legal observers and conservative advocacy organizations.
In comments co-signed signed by prominent legal scholars and attorneys, from Illinois and elsewhere in the U.S., Chicago attorney Donald P. Eckler noted the proposal's explicit carveout for "diversity and inclusion" hiring programs and "underserved" representation amount to an admission that the rule itself unconstitutionally discriminates based on viewpoint.
"If there is any doubt about the viewpoint discriminatory nature of the Proposal, it is shown in the need for a carveout to allow lawyers to discriminate against socioeconomically advantaged persons by allowing lawyers to limit their practice to those that are underserved," Eckler and his co-signers wrote. "There can be no argument that access to justice is a substantial problem and lawyers should be allowed to so limit their practice if they choose, but the point here is that the Proposal needed this carveout to allow such a practice limitation.
"This demonstrates that the drafters understood the sweep of what was being proposed and that absent the carveout it would prohibit commendable conduct and speech."
Further, opponents asserted the rule change would violate lawyers' rights to due process, by essentially allowing state regulators to proclaim them guilty and force them to prove their innocence.
In response to such claims, supporters said opponents' concerns are overblown.
Women Lawyers on Guard, for instance, said lawyers, above all others, "should be aware that freedom of speech is not absolute," and states have the authority to regulate attorney speech and conduct to protect "the integrity of the justice system."
ISBA said it believed the provision carving out speech "protected by the Constitution" should be sufficient safeguards to prevent politically driven persecution. They noted other states that have adopted similar rules have not, to this point, used them to persecute lawyers over politically controversial speech or associations.
But a comment submitted and co-signed by 58 other Illinois attorneys said the need for those assurances merely demonstrate how close to the constitutional line Proposal 22-06 actually falls.
"... Far from curing its constitutional defects, representations that the proposed Rule will not be applied so as to violate the Constitution constitute indirect admissions that the proposed Rule is, in fact, constitutionally infirm," those lawyers said.
The Chicago-based Liberty Justice Center further hammered home opponents' contention that Proposal 22-06 amounts to an effort to empower state officials to discriminate against political and social viewpoints that state and court officials may find distasteful or undesirable, by making the legal professional inhospitable for those on the wrong side of the political and social sphere.
"States cannot condition access to a profession on agreement with the state’s viewpoint, however noble or desirable that viewpoint may be," the LJC wrote.