The Alaska Bar Association is seeking to impose on all attorneys new rules of conduct, which Alaska Attorney General Kevin Clarkson says will have a chilling and unconstitutional impact on religious liberty and freedom of speech.
Clarkson issued a detailed letter in response to the proposed professional conduct rule, calling it “impermissibly vague” and open to discriminatory enforcement against attorneys who fail to adhere to the imposed orthodoxy.
On its face, the proposed rule prohibits lawyers from discriminating on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.
Attorneys would run afoul of the rule, however, if they engaged in such conduct while representing clients, interacting with witnesses, coworkers, court personnel, lawyers and others while practicing law, or participating in social activities connected with the practice of law.
Clarkson’s letter to the Bar Association notes that the proposed rule could sanction “a broad range of expression protected by the United States and Alaska constitutions.”
“Consider the following examples, all of which could be sanctioned under the proposed rule,” Clarkson wrote. “A devout Catholic attorney, who holds a sincere religious conviction regarding the importance of traditional marriage and parenting, politely declines to assist a same-sex couple with an adoption and refers them to a colleague without such religious conviction.”
Similarly, attorneys involved in a child custody hearing involving same-sex parents might violate the proposed rule by articulating a “client’s concern about traditional family values in a way that, in the Bar disciplinary board’s view, manifests bias,” Clarkson observed.
Even in situations removed from the courthouse or law firm, basic freedoms of speech and religious liberty would be threatened, Clarkson said.
He notes an attorney could violated the rule by making a comment in support of traditional family values to her expert witness while standing in line at a coffee shop while within earshot of opposing counsel.
Depending on how the Bar Association interprets and enforces the new rule, Clarkson said it could punish an attorney for making a comment in support of traditional family values while talking to a colleague working with a same-sex couple who wishes to adopt, or making the same comment over lunch to summer associates, or at a Bar Association panel regarding the future of same sex marriage.
As written the rule would even restrict free speech “at a cocktail lounge during the annual Bar convention, at a Catholic Lawyers Guild meeting, or at home, to a neighbor who needs advice for his divorce,” Clarkson maintains. “The only area of lawyerly life that Proposed Rule 8.4(f) does not touch is the private unexpressed mind.”
In his legal analysis, Clarkson warns that however well intentioned the proposed rule is, “such a blunt instrument is sure to chill attorneys from engaging in everyday dialogues about the law and politics, not to mention stifle the zealous advocacy that clients deserve.”
He notes that the rule could be “weaponized” to intimidate or punish attorneys for vigorously representing their clients” while articulating legal arguments that seek to challenge the rights of self-identified transgender people to access bathrooms of the opposite sex. It could also punish a lawyer for merely communicating to colleagues why she believes “permitting Satanists to offer invocations at town assembly meetings offends some people of the Christian faith.”
Members of the Alaska Bar Association had until Aug. 15 to submit comments about the proposed rule to Bar Counsel Nelson Page at firstname.lastname@example.org. Several attorneys have drafted a letter opposing the rule, which can be read here.