By Jim Nelson,
Montana Supreme Court Justice (Ret.)
Senator David Howard recently published an op-ed concerning the Montana Supreme Court’s proposed amendment to the Montana lawyers’ Rules of Professional Conduct. His piece misses the mark.
The rule change under consideration would clarify that it is not only professional misconduct for a lawyer, in conduct related to the practice of law, to engage in harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, marital status and socioeconomic status, but it is also misconduct to harass or discriminate on the basis of a person’s sexual orientation or gender identity. Nothing in the proposed rule change limits the lawyer’s ability to accept, decline or withdraw from representing a client in accordance with the Rules nor does the proposed change impair a lawyer’s freedom of speech or freedom to exercise religion.
Senator Howard begins his piece comparing the Court’s consideration of the rule change to kangaroos roaming from the judicial (b)ranch into the legislative (b)ranch, leaving kangaroo poo on the legislature’s porch. His fix is Senate Joint Resolution 15, which will coral the kangaroos and drive them back.
Senator Howard’s analogy is inapt and his conclusions are wrong.
First, it is not the function of the Legislature to make Rules of Professional Conduct for lawyers. That power is imposed specifically in the Supreme Court pursuant to Article VII, Section (2)(3) of Montana’s Constitution. Accordingly, there is no separation of powers issue. The Court is not exercising a power granted to the Legislature.
Second, the proposed rule change pertains to harassment and discrimination in conduct related to the practice of law. The Rule does not impair a lawyer-legislator’s right of free speech. Indeed if a lawyer-legislator wants to stand on the floor of the Senate or House and make disparaging or bigoted comments about gay people, or black people, or women or Jews, or Poles, or immigrants he or she may exercise his or her free speech right to do so as a legislator. Legislating is not practicing law; if it were, every legislator would have to be lawyer.
Third, SJ 15 is anything but the “polite” missive described by Senator Howard. Rather, the Resolution is a four page rant replete with questionable legal conclusions, sweeping hyperbole and directed at the Court’s Constitutional Power to make lawyer practice rules and against the American Bar Association. Indeed SJ 15’s selective outrage focusing on the addition of sexual orientation and gender identity to the Rule (without reference to the other discriminatory classifications) bespeaks more to institutional homophobia, than to any legitimate constitutional concerns.
Fourth, it bears stating that there is no constitutional right to discriminate protected anywhere in either the Federal or State Constitution. As far as a lawyer’s right to practice his or her religion, the proposed rule change does not affect that in the slightest—the lawyer may still worship in church, read his or her Bible, pray to Jesus or God, and hate the very air that gay people breathe. Practicing religion is not practicing law; and the proposed rule change pertains to the latter, not the former.
Fifth, the same goes for free speech. The Rule presently does not and, if changed, will not, prohibit a lawyer from speaking his or her mind about any subject. If he or she wants to write an op-ed or make a speech decrying gay marriage, or demonizing immigrants or marginalizing women, or insulting Mormons, the First Amendment and Article II, Section 7 guarantees his or her right to do so. The Rule presently and, if amended, will, only prohibit harassment or discrimination in conduct related to the practice of law.
Sixth, and, more to the point, if a lawyer can be disciplined for discriminating in the practice of law against black people (whom he or she believes to be inferior to whites), how is it different that he or she can be similarly disciplined for discriminating in the practice of law against gay, lesbian or transgender people (whom he or she believes have been condemned by God to the eternal fires of hell)? If there is no constitutional problem with the former, why the latter?
Senator Howard’s parade of horribles is just that–baseless fearmongering directed against gay, lesbian and transgender Montana citizens.
In short, beware the bull, not the kangaroo.
Montana Supreme Court Justice (Ret.)