Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession

Abstract

This Article explores recent challenges to lawyers’ “first freedoms” under the First Amendment to the United States Constitution, especially freedom of speech, with particular attention to the ABA’s 2016 adoption of Rule 8.4(g) of the Model Rules of Professional Conduct. It begins with a brief reflection on sixteenth-century England’s Thomas More, patron saint of lawyers, and the meaning that his life and example may offer for lawyers today. Next, it analyzes a profoundly flawed 1996 Tennessee ethics opinion advising a lawyer who was court appointed to represent minors seeking abortions, and its troubling implications for lawyers with traditional religious and moral views relating to their practice of law. It then examines multiple aspects of the ongoing Model Rule 8.4(g) controversy, including the rule’s background and deficiencies, states’ reception (and widespread rejection) of it, socially conservative lawyers’ justified distrust of new speech restrictions, and the impact of the United States Supreme Court’s 2018 decision in National Institute of Family & Life Advocates v. Becerra on “professional speech” under the First Amendment. It concludes with a call for the American legal profession to embrace a vision of diversity that includes, rather than excludes, socially conservative lawyers who dissent from its currently dominant moral views, including on matters of sexual ethics.

Keywords: Legal Ethics, Professional Responsibility, First Amendment, Constitutional Law, Freedom of Speech, Religious Liberty, Legal Profession, Thomas More, Catholic