One Texas state senator is fighting back against new rules that would limit the constitutional rights of Texas attorneys.

Last month the American Bar Association adopted a new provision to its Model Rules of Professional Conduct that would punish attorneys for professional misconduct when they speak on issues such as “race, national origin, sexual orientation, and gender identity.” Although the ABA is a private organization, their model rules are often adopted by states and have the force of law. Attorneys who violate the rules adopted by states can be disciplined and even disbarred.

However, State Sen. Charles Perry (R–Lubbock) is fighting back. In a letter to Texas Attorney General Ken Paxton on Monday, Perry called on the Attorney General to opine on whether adoption of the model rules in Texas would violate the constitutional rights of individual Texas attorneys.

“If the State Bar of Texas were to adopt such a rule, my concern is that lawyers who practice a religion may be reluctant to express those beliefs and values, hindered from associating with religious organizations, and targeted for elimination from the legal profession,” wrote Perry.

The model rule makes it professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should 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.” The rule broadly defines “harassment” to include “harmful verbal or physical conduct that manifests bias or prejudice towards others.”

In his letter, Perry identified several troubling questions raised by the new model rule.

  • Could a lawyer be subject to discipline or disbarment for challenging the merits of same-sex marriage or the federal government’s guidance on transgender bathrooms during a legal education class?
  • Could a lawyer be subject to discipline or disbarment for being part of a legal association that holds religious beliefs that marriage is between one man and one woman and that a person’s gender is fixed at birth?
  • Could a lawyer who is an atheist and criticizes religion in a legal education class be subject to discipline or disbarment?
  • Could an elected official, who is also an attorney, be subject to discipline or disbarment for debating proposed laws regarding sexual orientation, gender identity, marital status, or socioeconomic status?

If the ABA model rule is adopted in Texas, it could be used to drive conservative and Christian attorneys from the profession, which over time could have a dramatic effect on the rights not only of attorneys but of the clients who will be denied their services.

It is now up to Paxton’s office to analyze the issues and respond. Though his opinion will not be binding, if the Attorney General agrees with Perry that the new rules would violate the constitutional rights of Texas attorneys, it will strike a serious blow to their chances for adoption in Texas.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.

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