If Illinois lawyers aren't cheering even secretly for Matthew Hale, they should be.
Hale, the avowed racist and head of the white separatist World Church of the Creator, recently filed suit in U.S. District Court to obtain an Illinois law license. Hale took his case to federal court after the Illinois Supreme Court refused to overturn a bar committee's finding that Hale's extreme views rendered him unfit to practice law. In his federal lawsuit, Hale, among other things, challenges the constitutionality of the anti-discrimination rule governing Illinois lawyers.
The rule Rule 8.4(a)(5) prohibits Illinois lawyers from engaging in "adverse discriminatory treatment of litigants, jurors, witnesses, lawyers, and others." Until three weeks ago, Rule 8.4(a)(5) prohibited discrimination on the basis of race, sex, religion and national origin. On July 8, however, the rule was broadened to also prohibit discrimination based on disability, age, sexual orientation and socioeconomic status.
Hale's suit and the extended reach of Rule 8.4(a)(5) bring renewed attention to the power of courts and bar associations to regulate attorney speech. Most of the cases so far have focused on efforts to restrict lawyer advertising and solicitation. As the Hale case and the amended Illinois rule demonstrate, however, licensing authorities are growing increasingly bold in their enforcement of political correctness.
In Hale's case, the Committee on Character and Fitness understandably was taken aback by the ferocity with which Hale spewed his hateful views. Contrasted with Hale's outspoken racism, however, was a record that though not perfect generally was free of criminal and other misconduct. The committee therefore could deny Hale a law license only if it were willing to find him unfit because of his political beliefs.
Rather than shy away from the role of policing political speech, the committee embraced it. Hale's political beliefs, the committee said, were inconsistent with the "letter and spirit" of the Illinois Supreme Court rules. Moreover, the committee said, Hale's "insulting and totally inappropriate" letter to an advocate of affirmative action showed a "monumental lack of sound judgment" that put Hale "on a collision course with the Rules of Professional Conduct." Hale's beliefs, the committee concluded, were a "window" into his character, and through this window the committee heard a political agenda it did not like.
The graven image of political correctness is equally apparent in the breadth of Rule 8.4(a)(5). While the Illinois Supreme Court undeniably has the power to punish lawyers who discriminate against others involved in the judicial system, its authority over lawyers' more private activities is less clear, especially after the recent amendment.
The court, for example, can disbar a lawyer who refuses to hire an African-American secretary, as that conduct is unlawful. But does that lawyer violate Rule 8.4(a)(5) if he refuses to represent homosexuals? Does he discriminate against someone on the basis of socioeconomic status if he refuses to represent someone who won't be able to pay his bill? Can an attorney limit her practice to representation of the indigent and turn away the millionaire who's in a spat with his equally rich neighbor? At what point in taking their oath did Illinois lawyers give up their freedom of association?
The rule also threatens lawyers' freedom of speech. As the Hale case makes clear, those enforcing the rule believe that politically incorrect speech can constitute "discriminatory treatment." Can the lawyer forced to hire an African-American secretary post a Web page urging lawyers to refuse to hire women? A Web page attacking affirmative action? Does a lawyer create a discriminatory "hostile environment" by filling his reception area with The Bell Curve, Playboy magazine and the New Testament? Is my license in jeopardy for criticizing the amended rule?
Whether Matthew Hale's case will answer any or all of these questions remains to be seen. While one presumes Hale's arguments will get a fairer hearing in federal court than they did in the state system, a victory is by no means assured. Hale and his political views still are wildly unpopular in Illinois, and most Illinois lawyers have applauded the committee's decision.
Unfortunately, however, those lawyers are missing the point. The issue is not whether the Illinois bar would be better off without Matthew Hale. Rather, the issue is whether those of us in the bar are willing to surrender our First Amendment rights in order to keep him out.