AG says proposed anti-discrimination rule for lawyers is unconstitutional

State Attorney General Herbert Slatery is formally opposing a proposed change to professional conduct rules for lawyers that he contends would violate the constitutional free speech rights of Tennessee attorneys, reports the Nashville Post.

The rule change, proposed jointly by the Tennessee Bar Association and the Tennessee Board of Professional Responsibility, would make it a violation for lawyers 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.”

Slatery and others, like the Family Action Council of Tennessee’s David Fowler, argue the new rule would unconstitutionally limit attorneys’ free speech, and he has urged the Tennessee Supreme Court not to adopt the rule. The court accepted comments about the proposed rule until last week and will decide whether to adopt it in the coming months.

(Note: Slatery issued a brief opinion on the matter along with expanded comments filed with the court, HERE. Fowler says in a blog post that he fears the rule would mean loss of his law license when advocating for Christian conservative causes. A bar association article supporting the rule is HERE.)

TBA President Lucian Pera, an ethics lawyer in Memphis, explained the reasoning behind the proposed rule in a recent journal article.

“My position is simple,” he wrote. “We need a rule banning this kind of conduct — discrimination and harassment — by lawyers in their activity as lawyers.”

And he argued that punishing lawyers for discriminatory and harassing speech does not constitute a violation of free speech rights, though Slatery and others strongly disagree. Slatery argued that the inclusion of sexual orientation and gender identity in the protected categories goes above and beyond what is required by state and federal anti-discrimination law — inappropriately so, he wrote.

“It is no secret that individuals continue to hold diverse views on issues related to sexual orientation and gender identity, and those who hold traditional views on sexuality and gender frequently do so because of sincerely held religious beliefs,” Slatery wrote. “By deeming as ‘professional misconduct’ any speech that someone may view as ‘harmful’ or ‘derogatory or demeaning’ toward homosexuals or transgender individuals, [the proposed rule] would prevent attorneys who hold traditional views on these issues from ‘engag[ing] those who disagree with their view in an open and searching debate.’”