Great minds and all that.
Attorney General Leslie Rutledge has given Sen. Bob Ballinger the answer he undoubtedly wanted on his question of whether it would be constitutional for Arkansas to adopt as law the American Bar Association’s Model Rules of Conduct and violate the state’s religious freedom law.
He’s specifically concerned about this rule:
It is professional misconduct for a lawyer to: … (g) 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. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
If adopted in Arkansas, could Arkansas [sic] Bar Association Model Rule 8.4(g) constitute a violation of an Arkansas attorney’s statutory or constitutional rights under any applicable statute or constitutional provision? Q2) Could ABA Model Rule 8.4(g) be interpreted as violating our Religious Freedom Restoration Act (RFRA)? RESPONSE: The answer to both questions is yes. Q1) If adopted in Arkansas, ABA Model Rule 8.4(g) could infringe on an Arkansas attorney’s constitutional rights to free speech, free exercise of religion, expressive association, and due process. Q2) The rule could also substantially burden an attorney’s exercise of religion and thereby violate the Arkansas Religious Freedom Restoration Act.
Let’s boil it down. It’s about the gays. Arkansas civil rights, “religious freedom” and (toothless) hate crime laws were written to protect discrimination against LGBTQ people in hiring, housing or public services. And if Bob Ballinger or Leslie Rutledge have anything to say about it, thus it shall ever be.
The Arkansas Supreme Court sets the rules of conduct for lawyers. Rutledge’s opinion says they contain sufficient rules on professional misconduct and adopting this model rule would lower the standard.
Only Vermont has adopted the rule since the ABA recommended it two years ago. So-called Christians and libertarians have been raising a ruckus about it. The ABA writes at length about the debate here, but read it only as an academic exercise. A Republican-dominated Arkansas Supreme Court isn’t likely to extend extra consideration to protect sexual minorities.