The Illinois Supreme Court has imposed a new "anti-discrimination" rule on the state's legal profession.
But conservative groups warn the change by the Democrat-dominated court could stir up constitutional challenges to what they say is actually an unconstitutional "speech code" setting attorneys up for possible politically motivated discipline, should lawyers in Illinois express opinions on politics or social issues disfavored by the state's left-wing majority.
On May 30, the Illinois Supreme Court officially adopted a controversial new rule. Known to this point as Proposal 22-06, the rule officially amends Rule 8.4(j) of the Illinois Rules of Professional Conduct, a code of rules set in place by the state Supreme Court to regulate the behavior of practicing attorneys in the state.
Jacob Huebert
| Liberty Justice Center
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 new version of Rule 8.4(j) expressly states that lawyers practicing in Illinois 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."
Under the previous rule, lawyers were already prohibited from violating anti-discrimination laws or ordinances in any way that "reflects adversely on the lawyer's fitness as a lawyer." The rule also required regulators to evaluate any allegations against a lawyer under 8.4(j) by considering "all circumstances" surrounding the alleged discriminatory act or behavior.
And the Supreme Court further had required that proceedings against the accused lawyer have reached a final judgment before the attorney could be disciplined for harassment or discrimination.
The new version of Rule 8.4(j) now imposes a new standard, only requiring state attorney discipline officials to prove that the accused lawyer "reasonably should know" that their "acts" amounted to discrimination or harassment against others on the basis of any of the long list of protected characteristics. Further, the new rule allows state officials to take action against attorneys without waiting for "prior adjudication with a final judgment."
The court said the new rule does not limit the ability of lawyers to accept, decline or withdraw from representing clients.
And the court said the new rule also does not prevent law firms or others from focusing their practice on serving "underserved populations," nor from implementing programs or policies to "promote diversity and inclusion," such as "implementing initiatives to encourage recruiting, hiring, retaining, and advancing diverse employees or sponsoring diverse law student organizations."
The court further said the rule would not apply to "conduct protected by the Constitutions of the United States or the State of Illinois, including a lawyer's expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy."
The new rule will take effect on July 1, the Supreme Court said.
In the Supreme Court's release announcing the new rule, Illinois State Bar Association President Sonni Choi Williams said the rule change "will provide a clearer deterrent against harassing or discriminatory conduct that has no place in the profession and does not advance the administration of justice."
The ISBA had initially proposed the rule change in 2023, ostensibly to bring Illinois' rules in line with the American Bar Association's recently revised anti-discrimination rules. The proposal was endorsed by the Chicago Bar Association, The Institute for Inclusion in the Legal Profession and Women Lawyers on Guard.
The release included no comments from any of the court's current justices.
While acknowledging the court's concession for constitutionally protected conduct, lawyers who spoke against the rule change predicted lawyers would face a choice to self-censor their speech and association with certain political and religious communities who may hold traditional views or beliefs now considered discriminatory or bigoted by many of those in positions of power and influence, particularly in Chicago and Springfield, or risk potential discrimination complaints and potential disciplinary proceedings before state officials.
They noted several courts have ruled the ABA rule which the ISBA has said spurred the rule change violates lawyers' rights to free speech and freedom of association.
Groups who earlier had spoken against the proposed changes to Rule 8.4(j) said the new rule doesn't fall short of their earlier warnings and said they hoped the law could be challenged and struck down in federal court.
In a statement following the Illinois Supreme Court's announcement, David Nammo, executive director and CEO of the Springfield, Virginia-based Christian Legal Society, said the new rule will threaten "all Illinois attorneys, including those with a sincere religious faith" with the loss of their law license "for allegedly engaging in 'harassment' and/or 'discrimination' ... if they choose to take positions on issues that the bar insists are now culturally unacceptable."
The CLS filed comments objecting to the rule change when it was before the Supreme Court's review committee.
"The rule, according to many legal commentators and authorities, violates the free speech and free exercise rights of Illinois attorneys and should have no place in the practice of law," Nammo said. "Christian Legal Society is disappointed that the Supreme Court of Illinois modified its rules of professional conduct in a manner that will chill the constitutional rights of attorneys across the state."
The rule also came under criticism from the Liberty Justice Center, of Chicago. That group has said the new rule 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.
"This Rule violates attorneys' First Amendment rights because it threatens to punish attorneys for what they say and isn't necessary to ensure that people are treated fairly in court," said Jacob Huebert, president of the Liberty Justice Center, in response to questions from The Cook County Record following the Supreme Court's announcement. "We're disappointed that a state supreme court charged with upholding the Constitution approved this unconstitutional rule.
"We hope the federal courts will strike it down to protect lawyers' right to free speech."