Written by Aditi Juneja, Columnist
The American Bar Association’s (ABA) amended model ethics rule may create problems for lawyers advising Donald Trump on policies such as a temporary ban on those from Muslim majority nations (now shifted to a ban on nations with a record of terrorism). The new amendment to the ABA’s Model Rule 8.4 would make it professional misconduct to behave in ways an attorney knows or should reasonably know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.
Reading about this amendment, I began to wonder if it would be possible for a lawyer to ethically advise a presidential candidate to pursue discriminatory policies. The amendment does not require that a lawyer have discriminatory intent, per my reading, merely that it has that effect. Thus, the only way I can imagine a lawyer could ethically propose policies, such as a ban on those from majority Muslim nations, in a way that falls under the exception of “legitimate advice or advocacy consistent with these rules” is if advising a candidate to pursue discriminatory policies is not “related to the practice of law.”
Coded racial appeals, or “dog whistles,” are nothing new in presidential politics. Kevin Phillips, a lawyer and political strategist for Richard Nixon was open about the “Southern Strategy” to win an emerging Republican majority through “hostility to blacks and browns among slipping Democrats.” In fact, Paul Manafort, Trump’s former campaign chairman and a lawyer, ran Reagan’s Southern operation in the 1980s with racially tinged appeals. It is not surprising, given the background of his former advisor, that Donald Trump made similar efforts to appeal to racist ideologies in ways reminiscent of post-slavery Reconstruction-Era politics that played off of the discontent of voters opposed to those changes.
However, opposition to this new rule was not based in the ethics of lawyers who represent politicians. Rather, it focused on an attorney’s free speech rights and duties to advocate zealously for their clients. In response, Professor Noah Feldman wrote it is possible to advocate zealously without crossing the line into harassment or discrimination. I believe that if lawyers are going to craft the rules of society, it is about time that we are obligated to do so in a way that is inclusive of all of its members.
As a law student, I have been taught to comfort myself about the moral implications of advocacy by deferring to the adversarial process, which is supposed to yield fair and just results. Lawyers are taught to think through arguments and counterarguments, but rarely taught to consider the morality of advocacy. If we hope to learn from our history, and avoid repeating it, it would seem that making it unethical for lawyers to engage in discrimination and harassment in their legal practice is a good first step.