For every reader of Long Island Business News who has ever brought an action or needed to defend against a lawsuit, here’s important news from the court room: Your lawyer could be sanctioned for saying something that, while true, is offensive or hurt the feelings of the opposing party or its counsel.
This summer, New York’s four Appellate Division Departments issued an order that adopts a version of the American Bar Association’s professional conduct guidelines which in my professional opinion are impermissibly too broad and vague and, perhaps more to the point, are violative of the First Amendment and can deprive litigants of their right to be fairly heard and to receive just due process.
The effect of these ill-conceived rules is to improperly chill attorneys’ ability to speak freely and truthfully on the issues before the court. It effectively suppresses the necessary freedom that parties, and counsel must have to obtain justice.
Let’s look at some of the more obviously ill-conceived parts of the new Rule 8.4:
“A lawyer … shall not… (g) engage in conduct … that the lawyer … knows or reasonably should know constitutes…(2) harassment, whether or not unlawful, on the basis of one or more of the following protected categories: race, color, sex, pregnancy, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, gender expression, marital status, status as a member of the military, or status as a military veteran. (3) “Harassment” for purposes of this rule, means physical contact, verbal conduct, and/or nonverbal conduct such as gestures or facial expressions that is…b. derogatory or demeaning…” (Emphasis supplied)
The vagueness and subjectiveness of this rule is obvious. For example, if a “biologically” born competitive woman swimmer brings a lawsuit challenging as discriminatory and violative of her rights, the NCAA’s policy of allowing “biologically” born men who become transgender women to compete in women’s swimming competitions, like Lia Thomas, is her lawyer exposed to being disciplined for so advocating if such advocacy is determined to be derogatory to the transgender woman’s gender identity?
The rule includes the incredibly vague provision that it can be violated by even “nonverbal conduct such as gestures or facial expressions.” Say what? You mean if opposing counsel suggests a lawyer has rolled his eyes at the adversary counsel’s contentions relating to gender identity or gender expression, that he should be disciplined because it is deemed to be derogatory or demeaning. What about a long pause in responding to a comment or shake of the head?
The rule can result in mere gestures being deemed violative behavior. The rule could improperly inhibit counsel from making forceful arguments on the client’s behalf for fear of being disciplined and can result in putting an attorney in an unfair negative light that unfairly prejudices the actual merits of the attorney’s contentions.
This dangerously unwise rule also promotes a new government method of controlling disfavored or unpopular speech and is so broad as to be able to discipline attorneys whenever the government subjectively deems their legal speech, or nonverbal gestures to be offensive. The First Amendment was created to prohibit the government from suppressing unpopular speech which the government detests.
The nation is now in the throes of a fierce debate over whether unpopular speech should be limited or prohibited. One of the main purposes of the First Amendment is to protect the chilling of free speech, particularly in the instances where such speech is widely reviled and unpopular. Popular or widely accepted speech needs no such protection
Our nation’s courts have, historically, properly sought to ensure respect and proper decorum, but we need to draw the line when woke sentiments have washed up to the steps of the courthouse. These latest rules most likely will improperly harm effective representation of unpopular litigants or positions before the courts thereby depriving them of due process and their right to be fairly heard. And if this rule is upheld and enforced, what is the future of free speech that the First Amendment guarantees to everyone in the days to come?
Rosenberg, a graduate of St. John’s University Law School and resident of Old Westbury, is senior founding partner of Rosenberg, Calica & Birney LLP, a Garden City law firm.