Why Doesn’t the ABA Consider Discrimination Based on Military or Veteran Status to be an Ethics Violation? [Updated]

Earlier this month, the American Bar Association (ABA) crowed about a resolution (#109) that amended its Model Code of Professional Conduct to include as “professional misconduct” harassment or discrimination against a wide range of persons except, inexplicably, those having military or veteran status.

As a staunch ABA member myself, and someone currently on the Board of Advisors of its Standing Committee on Law and National Security, (although I am speaking personally and not on behalf of the Committee), I am alternatively extremely disappointed and genuinely mystified by this.

What’s more is that I find the omission rather ironic because the ABA is keenly aware of the biases against those in military or veteran status, particularly when it comes to economic matters. Why? It markets a wide panoply of books and continuing legal education courses aimed at equipping lawyers for the unique challenges of representing still-serving military members as well as veterans who suffer prejudice or disadvantages of some sort.

Yet the revised rule doesn’t include them even though it specifically prohibits behavior that: 

[T]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.

Though aimed at conduct “related to the practice of law” the revision invites a broader discussion.

Discrimination against those who serve or have served in the armed forces is not a particularly new phenomenon, and it is perhaps most acute in the area of employment, so much so that Congress has had to act repeatedly to stem it. For example, the seminal statute creating protections for those who serve and is now called the Servicemembers Civil Relief Act actually dates to 1942. Several decades later during the Clinton presidency Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 because there was a need to “prohibit discrimination against persons because of their service in the uniformed services.”

Furthermore, Congress is now considering additional legislation that would prohibit “employment practices that discriminate based on an individual’s military service and [would amend] the Fair Housing Act and the Civil Rights Act of 1968 to prohibit housing discrimination against members of the uniformed services.”

While laudable progress is being made fighting discrimination against people from a variety of backgrounds, discrimination against veterans quietly persists as bias in the private sector against those who served can be quite subtle. Earlier this year one commentator put it this way:

It is difficult to find anyone willing to talk about a bias against veterans in the private sector.  Patriotism, love of country and a concerted push by the federal government to promote careers for veterans have driven the bias underground, but have certainly not ended it.

The bias is not just in the employment or housing realm; it can appear elsewhere.  For example, Stars and Stripes reported in 2014 that student vets:

[S]till encounter professors and other faculty who blame them for the Iraq War, resent the generous GI Bill benefits and assume the former troops aren’t smart enough to make it to graduation.  It’s not the norm, they said, but it’s something nearly every student veteran has had to deal with at least once in the last few years.

Consider this: Kathy Roth-Douquet and Frank Schaeffer, authors of the book, AWOL: The Unexcused Absence of America’s Upper Classes from Military Service — and How It Hurts Our Country, argued a decade ago that the “privileged learn that war is bad, and believe that those who find themselves in the military – while we “support them” — are likely to be underprivileged, certainly somewhat suspect, possibly over-avid gun collectors or victims of unscrupulous recruiters.”

But what about today? In a February essay in the Harvard Crimson, ROTC cadet Nathan Williams provided some insight when he wrote that “[w]hen walking into class in uniform, I feel like I’m on trial. The atmosphere becomes tense; people look at me as if I’m spearheading some sort of military takeover of Harvard.”

Last April, in an article about Harvard, Daniel Fisher, a veteran-turned-grad-student and co-director of the Harvard Veterans Organization, noted that notwithstanding the university’s recent embrace of the long-resisted Reserve Officer Training Corps (ROTC) program there remains an “important and uncomfortable truth.” He observes that:

[I]n an undergraduate student body of about 6,700, there are only 23 ROTC cadets and fewer than five veterans. Neither of these figures has increased materially since the university ended the ROTC ban. Neither is expected to increase in coming years. In fact, with a (relatively) large graduating class, the number of cadets may even decrease.

A uniquely “Harvard” phenomena? Actually, there are troubling reports from other campuses. Last year a Brown University columnist called for the ban of ROTC “criminals” from campus, and in March of this year a professor at the University of North Dakota threatened to call 911 whenever ROTC cadets trained. An applicant’s military background was cited Northwestern University faculty in opposing his appointment to lead a global studies institute. Nationwide, polls disconcertingly show that today 85% of young people say they “would ‘probably’ or ‘definitely’ not serve in uniform” even though polls also show that “military officer” is perceived as one of America’s most prestigious professions.

What about the mindset of lawyers? Unfortunately, I think that an omission like this one involving military personnel and veterans gives credence to those who argue that the ABA has institutionally shifted to the left.  It is true, as the ABA itself points out, that the legal profession as a whole is left-leaning, but irrespective of where one may be on the political spectrum, can’t we all agree that ethics standards ought to be ideologically-neutral in fact and, importantly, perception?

Still, what makes the ABA’s position not to include protection for those in military or veteran status even more puzzling is that it sponsors Operation Standby, a great program in which the expertise of volunteer civilian lawyers is made available to military attorneys (with no “expectation that [the civilian lawyer] will provide pro bono representation for the military attorneys’ clients.”)

Additionally, the ABA also supports an extensive Military Pro Bono Project aimed at licensed, practicing lawyers. That said, Rule 6.1 does not explicitly prohibit an attorney from acquiring fee-paying clients via pro bono activities. The rule simply says that a lawyer “should” offer the services “at no fee or substantially reduced fee.” Notwithstanding admonitions as to what he or she “should” do, the rule does not technically prohibit an attorney from charging whatever is otherwise a lawful fee.

If the ABA is going to permit some measure of monetization of the status of pro bono military (or veteran) clients, shouldn’t it at least extend to them the protections against discrimination and harassment the resolution affords other groups?

In any event, my criticism of the resolution is not the only one. Will the ABA take this resolution back to the drawing board to ensure that what may have been a well-meant effort does not have unintended consequences that are at odds with what we all would want our professional organization to be? One can only hope.

It’s unfortunate that we as a society – or as a professional group – have to even identify specific groups when we are talking about a lawyer’s behavior related to discrimination and harassment. Aren’t all such acts of unlawful discrimination and harassment inherently bad? But if we’re drawing up a list, let’s not leave out the ones who fight and sacrifice to protect our way of life and its structure of laws and freedoms.

Update in response to a Letter to the Editor from Karen McNeil:

I’m grateful that Ms. McNeil took the time to read and respond to my essay.  Of course, I never “mentioned Brown as an example of Ivy League discrimination” as Ms. McNeil says, but merely pointed out as a “troubling report” for readers to judge that “last year a Brown University columnist called for the ban of ROTC “criminals” from campus.”    That said, I’m happy to accept Ms. McNeil’s clarification that the columnist was a Brown student writing in the Brown University student newspaper.  I do invite readers to take a look at the column itself, as well as the one to which it was responding in which Ms. McNeil was quoted, and draw their own conclusions.  I’m sorry, however, that Ms. McNeil, was silent on the point of the essay, which was to call for the ABA to include veterans and those still-serving among those the Model Code protects from  harassment or discrimination in the practice of lawWhile I personally oppose unlawful discrimination or harassment of anyone, as I say in my essay, “if we’re drawing up a list, let’s not leave out the ones who fight and sacrifice to protect our way of life and its structure of laws and freedoms.”  I would hope that Ms. McNeil and her highly-respected University would join me in that. 

Filed under:
About the Author(s)

Charles J. Dunlap, Jr.

Professor of the Practice of Law and Executive Director of the Center on Law, Ethics and National Security at Duke Law School He retired from the Air Force in 2010 as a Major General.