Am I guilty of professional misconduct worthy of forfeiture of my law license if I publicly question whether we really need Juneteenth and Martin Luther King Day? Or if I post a photograph of a Budweiser beer bottle surrounded by Coors beer cans wearing hoods above the caption “Ku Klux Coors”? Or how about if I question whether the advancement of claims for a racial reckoning are really just a racist shakedown, a graceless prelude to race-based transfer payments in the form of reparations?
Engaging in each of the forms of expression has drawn me the ire of those who were offended by the speech. Google my name, if you doubt it. The righteous have spoken.
Indeed, in the case of “Ku Klux Coors,” I received a call from a judge. “Beware,” I was told, “some folks are seeking your criminal prosecution and your law license.”
The suggestion that anyone thought these acts criminal or professional misconduct struck me as ludicrous. But never mind. I was in the midst of jury selection in a criminal case. My client was a young black woman. I had to stop the proceedings, inform the presiding judge, and submit my client to a canvas on the record to alert her to the fact that some folks thought me a racist and were running to the news media. Did this trouble the client? No. She had too much sense; she wanted an effective lawyer, not a race-pandering toady. She proved right, when the jury acquitted her of serious felony charges.
There was whispering then. We need to amend the Rules of Professional Conduct to reach conduct such as mine. I’m a racist, the NAACP declares.
And what of Juneteenth and the so-called racial reckoning?
Sorry. I’m not buying. I’ve been involved in police misconduct cases for almost 30 years. I looked at the George Floyd video and didn’t see “systemic racism.” I saw a cop reacting to another knucklehead, using the training he had been given to subdue a detainee. When cities erupted thereafter, and Saint Floyd was named, I was incredulous. I knew the pandemic would lead to unrest – historically, they always do. But race-pandering?
Martin Luther King Day marks the nation’s troubled history with race, and its unfulfilled promise to do more. We need another holiday to mark the topic like we need an African-American national anthem. I spoke out. When emissaries offered to educate me about my white privilege, I spurned the offer.
And once again, the offended sought my license, looking for a way to grieve me because my speech made them uncomfortable. Once again, the media was alerted. I’m a villain, you see.
Now the righteous seek to amend the Rules of Professional Conduct to make it easier to attack the outspoken. The new rule is being considered by the Connecticut Judicial Branch. Rule 8.4 would arguably make it possible to grieve a lawyer for engaging in conduct that involves “harassment” on the basis of race.
What does that mean?
Consider the official commentary, which reads, in part: “Discrimination and harassment [by lawyers] in the practice of law undermine[s] confidence in the legal profession and the legal system. Discrimination [means taking an adverse action] includes harmful verbal or physical conduct directed at an individual or individuals [on the basis of the protected categories] that manifests bias or prejudice on the basis of one or more of the protected categories[ towards others].”
The rule is based on a controversial ABA model rule.
Forget for the moment, the First Amendment. Lawyers enjoy a privilege, after all, in practicing law. With those privileges come responsibilities. But are we lawyers really to be held verbally hostage to the tenderest sensibilities in the room?
I’m with Chief Justice John Roberts: The only way to stop discriminating on the basis of race is to stop discriminating on the basis of race. Tell me I suffer from “white privilege” and that I must acknowledge my “implicit bias” in order to root out ubiquitous “systemic racism” and my eyes glaze over. This sounds to me like racial resentment talking, a pandering exercise that peddles “reckoning” as a disguised shakedown.
Every time I hear “white privilege” in a conversation, I stop the conversation and ask: “What is it you want from me, right now, in this exchange?” Invariably, the request is for added consideration of some sort in a claim for distributive justice. When I reply by saying that I owe nothing to anyone on account of our respective accidents of birth, I am sometimes shunned, sometimes called a racist. More often than not, I hear talk about privilege and simply walk away, claiming “White Male Fatigue Syndrome.”
My firm continues to represent men, women, black, brown, yellow and folks all along the libidinal spectrum. They are individuals with interests and disputed claims at law. If that’s not good enough for some folks, they can find another lawyer. I’m good with that.
But what I’m not good with is being told that my right to practice law is contingent on whether you approve of my point of view.
Rule 8.4 is an unnecessary insult. It is a sop to the politically correct. It reeks of the wick burning at places like the Yale Law School and the ABA, where lawyers without clients succumb to fever dreams about a better world.
Tell me about my white privilege, and I feel harassed. Tell me that unless I admit my racism, I’m an even worse racist, and I feel discriminated against. Will I have claims against the folks trying to persuade me that because I’m white, I’m not right in head, heart or skin tone?
I’ve enjoyed the break from day-to-day wrangling in court spawned by the pandemic. It’s made me wonder from time to time about whether I want to return to court. Rule 8.4, and its unctuous, insulting and unnecessary speech code requirement makes the law look even less appealing.
Connecticut’s judges ought to kill this asinine proposal at birth. It is unnecessary, a tool of the very sort of racial division it purports to protest, and a hotbed of litigation to come.
Call me a racist. Take your work elsewhere. But demand my license unless I kiss the ring of racial grievance?
I’m a misanthrope. My decades in court make me wary of everyone’s intentions. I fear more self-righteous mobs most of all. It wasn’t enough to shutdown cities this summer after arrests turned fatal when officers overcame resistance? You want my law license, too?
Come and get it.
Better yet, bury Rule 8.4.