TESTIMONY OF JOHN EIDSMOE BEFORE THE MONTANA SENATE JUDICIARY COMMITTEE, 21 FEBRUARY 2017
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(RESOLUTION PASSED) Thank you Col. Eidsmoe!
Mr. Chairman, and Members of the Senate Judiciary Committee, my name is John Eidsmoe, my office is in Montgomery, Alabama, but I am a South Dakota native. I serve as Senior Counsel for the Foundation for Moral Law, and am a retired Air Force Judge Advocate, an attorney, and a Lutheran pastor. I am in Montana to speak for a Lutherans for Life Conference in Great Falls. This subject is of great concern to me because I teach both Constitutional Law and Professional Responsibility for the Oak Brook College of Law.
Montana is far from alone in its concern over ABA Model Rule 8.l4(g). The Illinois State Bar Association has rejected the Rule, and Pennsylvania appears ready to reject the Rule and adopt a rule similar to that which Illinois currently has. The Texas Attorney General has issued an advisory opinion that the Rule is unconstitutionally overbroad and violates the First Amendment guarantees of free speech, free exercise of religion, and freedom of association.
I found in researching this Rule that the ABA website has extensive commentary on it. As you can see, memos back and forth between the ABA Commission on Sexual Orientation and Gender identity and other ABA committees exceed 200 pages — and that’s only until the hotel printer ran out of paper! I discovered that an earlier version of the proposed Rule applied only “in the course of representing a client,” but this was expanded to “related to the practice of law.” That could include almost anything an attorney does, including giving a speech or writing a letter in which he is identified as an attorney.
Likewise, the terms “bias,” discrimination,” and “harassment” are vague and subject to interpretation, misinterpretation, and abuse. They do not give an attorney adequate notice of what prohibited and what is permitted. A witness who thinks an attorney cross-examined him too vigorously could claim harassment. An attorney who represents a business that refuses to provide transgender restrooms could be accused of bias. An attorney who declines to take a case because of sincere religious or moral objections to the cause, could be accused of discrimination. This could have a chilling effect on freedom of expression, as attorneys may choose to remain silent or not get involved because they do not want to be accused of bias, discrimination, or harassment. Representing a client, especially in a case that has religious or ideological implications, is an exercise of First Amendment freedom of expression.
The proposed Rule “does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16;” however, Rule 1.16 provides very limited circumstances in which an attorney may withdraw, and religious or moral objections are not among them. Likewise, the proposed Rule “does not preclude legitimate advice or advocacy consistent with these rules,” but the phrase “consistent with these rules” is as vague as the rest of Model Rule 8.4(g).
The practical effect of this proposed Rule is that attorneys who hold sincerely and deeply held religious or moral beliefs about issues such as homosexuality, marriage, and transgenderism will be forced to either violate their beliefs or be barred from the legal profession. This is similar to the dhimmitude practiced in some Islamic countries, under which “infidels” are barred from holding public office or practicing the learned professions such as law and medicine.
And others are affected as well. If those who hold traditional values are barred from the legal profession, churches and religious persons and organizations will be unable to find attorneys who share their beliefs.
No need has been demonstrated for Model Rule 8.4(g). Besides the American Civil Liberties Union, many organizations like Lambda Legal Defense Fund are eager to provide representation.
Because ABA Model Rule 8.4(g) potentially affects all Montanans, it is entirely appropriate for the Montana Legislature to express its views on this proposed Rule. I commend Senator Howard for proposing this Resolution. I urge that the Resolution be passed and that ABA Model Rule 8.4(g) be rejected.
Thank you for considering my testimony.