A proposed amendment to the Iowa State Bar's ethics rules could, according to the Thomas More Society, severely penalize lawyers at Hawkeye State for advocating social conservative positions both in court and out of court.
The Iowa Supreme Court is considering the adoption of a proposed rule prohibiting Iowa lawyers from "engaging in harmful verbal acts that express bias or prejudice against others."
Critics say it's just too broad and specifically designed to interrupt talk about LGBT issues.
The new provision penalizes "professional misconduct" when a lawyer makes "derogatory and degrading" statements that could be considered as "harassing or discriminating" particular groups of persons. The rule is modeled on a heavily criticized rule of the American Bar Association.
The Thomas More Society designed and submitted to the Iowa Supreme Court an analysis of the violations of the first amendment that would come into effect when the court passed these proposed rules.
"Protecting the freedom of speech and religion of lawyers in Iowa is at risk," said Matt Heffron, a lawyer for the law firm of National Public Interest. "And if the rights of lawyers are endangered, it is the rights of the citizens who defend them, that's serious."
The proposed rule also extends the "protected classes" beyond the long-established categories of civil rights law to "skin color, religion, gender and national origin" by adding protected categories such as sexual orientation, gender identity and marital status. "By adding these unprotected status descriptions, this rule could become a political tool to punish lawyers who are committed to traditional family values."
"The problem here is a comprehensive definition," said Heffron. "The broad parameters for 'harassment and discrimination' in this rule go far beyond the long accepted language of the civil rights law and the language used in the proposed rule is prone to a broad interpretation … that as a sword could be used for ideological purposes. "
Heffron also noted that this expansive language could be applied to almost everything a lawyer says or does personally or professionally. The provision prohibits behavior in connection with legal practice, such as the representation of clients, interaction with other persons during the practice of legal practice, the conduct or management of a law firm and participation in bar associations. business or social activities related to the exercise of the right. "
"It's easy to see this rule suppressed to silence the opposition," said Michael McHale, another lawyer for the Thomas More Society. The company's submission to the Iowa Supreme Court found that this rule is particularly problematic for lawyers working to protect traditional family values, not least because the December 2015 American Bar Association report for the original model, Rule 8.4 (g ) – the source of Iowa's Suggested Rule 32: 8.4 (g) – with the approval of the remark that there is a need for cultural change in the understanding of characteristics such as "gender, gender identity, gender expression and sexual orientation".
Recent rulings by the United States Supreme Court and other federal appeals have cast serious doubts as to the constitutionality of the language of this rule, as outlined in the Company's submission to the Iowa Supreme Court. Specifically, the Telescope Media Group's Eighth Circuit's Appeal Court v. Lucero (August 2019) has invalidated a similar language in Minnesota law that would oblige wedding videographers, against their religious beliefs, to film same-sex weddings.
It also cited the US Supreme Court ruling of 2018 in the NIFLA v. Becerra case, which states that California could not prescribe lifelong pregnancy centers to inform women about having an abortion, and rejected the argument that "professional speech" less protection against initial adjustments than other speech.
"Decisions like these show that Iowa does not require lawyers to represent politically correct views on life, family and religious issues without violating the first amendment," added McHale. "We are confident that the Iowa Supreme Court will uphold this constitutional protection policy rather than jeopardizing the rights of many members of the Iowa Bar Association."
Even the further work of the Thomas More Society could be jeopardized in Iowa when this rule is introduced. The company regularly represents many customers in Iowa pro bono.