The Nightfall of Your Personal Liberty

(Subsequent to this blog, the Tennessee Supreme Court denied the motion to amend the rules.)

“The first thing we do is kill all the lawyers,” wrote Shakespeare in Henry the Sixth.  The strange thing happening right here in Tennessee is that some lawyers are interested in killing the lawyers.  It might sound like a good idea; it might even sound funny to some.  But it is a threat to your personal liberty.  So you better pay attention. 

The oft-quoted statement from Shakespeare was actually a compliment to the importance of lawyers in a well-ordered and free society.  It was spoken by Dick the Butcher, a follower of anarchist Jack Cade, “the head of an army of rabble and a demagogue pandering to the ignorant.”  They sought to overthrow the government.  So what Shakespeare was really saying is that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers.”

Then what are we to make of the fact the Board of Professional Responsibility for the governance of lawyer ethics is recommending to the state Supreme Court a new ethical rule that effectively “kills all the lawyers”?  Actually, not all the lawyers, but just those who would champion the rights of disfavored segments of society and protect the speech and religious beliefs of citizens that some might find offensive.  If you are an evangelical Christian, then you better keep reading.

The current rule says that a lawyer cannot “knowingly manifest” bias or prejudice relative to a variety of characteristics “in the course of representing a client.”  A few years ago “sexual orientation” was added to the list of protected characteristics.

But at least that rule required that the lawyer “know” that he was demonstrating bias or prejudice.  And it left the lawyer free to decide whether the legal position that the potential client wanted to advance was one the lawyer could, in good conscience, advance.  If not, then the lawyer could decline representation of the client and there would be no violation of the rule.

However, now the Board wants to apply this prohibition to all conduct an attorney engages in “in a professional capacity’” — whether or not he does so knowingly or is representing someone.

Now just deciding whether to take on a legal matter or represent a particular client could become an ethical violation, trumping the lawyer’s First Amendment rights to freedom of speech and association.  I’m sure in someone’s mind that taking on a client the culture no longer approves of or not taking on a client that culture approves of will be evidence of bias and prejudice.

But the rule also applies to mere advocacy by the lawyer.  So if I, as a lawyer, stand before the legislature to advocate for marriage as between a man and a woman or for the right of religious student organizations to require their members share that religion’s beliefs, I could be demonstrating bias or prejudice in the eyes of someone who can file a complaint against me.  Then, under the new rule, I will have to prove to the Supreme Court, at my expense, that the position I advocated was “legitimate.”  Well, what is “legitimate” clearly depends on who is doing the judging!

In other words, the people who are designated in our system of governance to protect the rule of law, to advance the rights of others, to protect free speech and association, would be told that if they do so relative to some group of people or individuals that are unpopular, they could be disbarred.  If that begins to happen, then try finding yourself a good lawyer if someday you are deemed part of a culturally unpopular group.

As I think of the implications of this proposed rule change and how it effectively undermines the rule of law upon which our liberties are based, I think of what Jesus said:

“The eye is the lamp of the body; so then if your eye is clear, your whole body will be full of light.  But if your eye is bad, your whole body will be full of darkness. If then the light that is in you is darkness, how great is the darkness!”[1]

I also think of Alexis DeTocqueville’s warning:

“If the lights that guide us ever go out, they will fade little by little, as if of their own accord.  Confining ourselves to practice, we may lose sight of basic principles, and when these have been entirely forgotten we may apply the methods derived from them badly.”

I see nightfall for freedom and the rule of law approaching on the horizon.

[1] Matthew 6:23

Note: public comments on the proposed rule change are due by the close of business on Wednesday, May 1, 2013.

Although the proposed rule change involves lawyer ethics, the public is free to comment on them. Comments may be submitted either in writing to the Clerk of the Tennessee Appellate Courts or through an online form on the Tennessee Supreme Court’s website.

To submit comments using the online form, click here. Note that you must:

Select “Supreme Court Rule 8, Section 8.4” in the Rule Change field.
Type in the docket number, M2013–00379-SC-RL1-RL, in the Docket Number field.

If comments are submitted in writing, they must be received by the Clerk no later than Wednesday, May 1, reference the name of the Supreme Court rule and the docket number listed above, and be addressed to:

Mike Catalano, Clerk
Tennessee Appellate Courts
100 Supreme Court Building
401 7th Avenue North
Nashville, TN 37219-1407

To see some of the other comments submitted to date to the Tennessee Supreme Court about this proposed rule change, go here.