Some of you might remember an incident caught on video about two years ago in which a lawyer went on an offensive/racist tirade at a restaurant in New York when he heard some employees speaking in Spanish among themselves. The incident was caught on video and posted on social media. See here.
Well, more than two years later, I am writing about it because just a few days ago the lawyer was publicly censured for his conduct under New York’s Rule of Professional Conduct 8.4 (h) which describes as misconduct “conduct that adversely reflects on the lawyer’s fitness as a lawyer.”
This decision raises a number of interesting issues. First, it should be noted that New York has an “anti-discrimination” rule, akin to Model Rule 8.4(g), but it did not apply in this case because the conduct was not related to the practice of law.
For that reason, this is a case of purely private conduct, or conduct “outside the practice of law” and that conduct is expressive conduct or, simply, speech.
In other words, the question here is whether it is proper for the state to impose discipline for conduct, or speech, merely because that speech is offensive.
According to the traditional analysis under the First Amendment, the answer to that question is no. But, apparently, things have changed. Apparently, in New York, expressing an offensive statement raises enough concern about a lawyer's fitness as a lawyer to warrant discipline even if the statement is protected under the First Amendment.
Evidently, New York has no tolerance for lawyers who express ideas that some might find to be racist. But, at what point does a constitutionally protected expression cross the line and becomes so offensive that a lawyer can be disciplined for it?
Is it proper for the state to conclude that someone is not fit to be a lawyer because of their racist views or expressions? Maybe the lawyer in this case has an issue related to anger management or mental illness. If that is the case, then the disciplinary agency needs to say that the discipline is imposed because the lawyer is not fit to practice for those reasons. But that is not what happened. The decision is based on what the lawyer said, not on his competence or ability to practice law.
The implication that engaging in offensive expression makes a lawyer unfit to practice law has significant consequences for First Amendment analysis, and I don’t think the decision in the case acknowledges that.
The Legal Profession blog has more information.