The scope of new American bar rules on anti-discrimination is controversially broad – is it time for the SRA to revisit its own?

Last week, I wrote about a policy document issued at the American Bar Association’s annual conference in San Francisco, which also has resonance for us: its report on the future of legal services. This week I write about another such document, which caused considerable fuss in the light of the culture wars being fought in the US: the ABA’s new model rule on anti-discrimination.

The controversy concerned the scope of the new model rule. It covers an extremely wide spectrum – ‘conduct related to the practice of law’, which is taken to mean not only the usual things such as clients and employees, but also other lawyers, including while ‘participating in bar association, business or social activities in connection with the practice of law’.

The proposal yielded an article in The New York Times highlighting its disputed aspects, and much feedback to the ABA during the drafting.

The wording was frequently changed to accommodate critics – for instance, to exclude initiatives that promoted diversity, to include special provisions covering peremptory juror challenges, and to allow lawyers and law firms to serve only specific sectors of the population. During the deciding debate, there were speakers only in favour of the proposal, although the final vote in favour was not unanimous.

The main objections can best be seen from the anecdotes which were used in the run-up. For instance, should a male lawyer be disciplined for saying in court to another (female) lawyer: ‘Don’t raise your voice at me. It’s not becoming of a woman’? Should a male lawyer be disciplined by the bar for groping at a holiday party a young, female colleague on the other side of a case, and then following her and asking crudely what sexual activity she might be planning with her husband that night (when there is no subsequent criminal charge against the male)?

The opposition from the cultural right objected that the new rule impinged on freedom of speech and would encourage discrimination against particular religious viewpoints. In other words, we are back in the long-standing debate about the limits of what some call ‘political correctness’.

It is worth at this stage looking at the Solicitors Regulation Authority’s own rule on this point. Principle 9 says that you must: ‘run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity’. And the principal anti-discrimination section in the code of conduct falls under the ‘You and your client’ heading.

The first outcome under this heading is very widely worded: ‘you do not discriminate unlawfully, or victimise or harass anyone, in the course of your professional dealings’.

This - together with the ‘run your business’ wording in the principle - would seem to catch the first example I gave, of being told not to raise your voice in court as a woman. But would it catch the second? Do your professional dealings, or running your business, include actions or words at a holiday party? And if the SRA’s code is intended to be as wide as the new ABA model code provision and catch lawyer-to-lawyer conduct, why are the principal anti-discrimination outcomes under the ‘You and your client’ section in the first place?

In the current American election, political correctness is one of the issues being severely tested. It is a factor specifically and repeatedly mentioned by supporters of Donald Trump in their unwavering support for him – he is not afraid to tell the truth, he is not impeded by political correctness (and he certainly doesn’t appear to be). And that is why the ABA’s model rule was so fiercely fought over.

The role of political correctness is also a factor in this country. There is a clear group which feels that it has also gone too far here. I know that the Brexit vote has become something of a Rorschach test, in which analysts can see whatever they want in the outcome, usually telling more about themselves than the vote itself. (Partly this is because there were so many different reasons for the vote - immigration, sovereignty, trade, globalisation - sometimes conflicting with each other.)

But the release that some felt after the vote in being able to abuse immigrants shows that they felt they had been held back before by a kind of political correctness, which they now felt had been abolished.

This topic reflects one of those impossible balances which democratic societies have to keep. Go too far in one direction, and an important group feels that its rights are trampled on (freedom of speech, religious freedom). Go too far in the other and another important group feels the same (the right not to be insulted or demeaned at work, say).

Is it time to look again at the SRA’s own rule?

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs