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

The Ethics of Conscience: Saint Thomas More and First Freedoms in the Legal Profession Michael S. McGinniss Dean, University of North Dakota School of Law UND Law Homecoming CLE Friday, October 4, 2019.

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

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  1. The Ethics of Conscience: Saint Thomas More and First Freedoms in the Legal ProfessionMichael S. McGinnissDean, University of North Dakota School of LawUND Law Homecoming CLEFriday, October 4, 2019

  2. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession “I do none harm, I say none harm, I think none harm.” – Thomas More, in A Man for All Seasons

  3. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession “It isn’t difficult to keep alive, friends—just don’t make trouble—or if you must make trouble, make the sort of trouble that’s expected.”– The Common Man, in A Man for All Seasons

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

  5. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession SAINT THOMAS MORE: SILENCE FOR CONSCIENCE’S SAKE

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

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

  8. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession THE 1996 TENNESSEE ETHICS OPINION: COMPELLED ADVOCACY AND ADVICE AGAINST PRO-LIFE ADVICE

  9. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA Model Rule of Professional Conduct 6.2 A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: . . . (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

  10. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession THE 1996 TENNESSEE ETHICS OPINION: Compelled Advocacy

  11. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession THE 1996 TENNESSEE ETHICS OPINION: Your Client Has a Right to Your Silence

  12. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession THE 1996 TENNESSEE ETHICS OPINION: Its Continued Importance

  13. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA MODEL RULE 8.4(G): The Movement to Marginalize Social Conservative Lawyers and Deter Their Speech

  14. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA MODEL RULE 8.4(G): Its Background and Its Deficiencies

  15. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA MODEL RULE 8.4(G): What is “Conduct Related to the Practice of Law”?

  16. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA MODEL RULE 8.4(G): What Are “Discrimination” and “Harassment”?

  17. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA MODEL RULE 8.4(G): Mens Rea Requirement -- “Knows,” “Reasonably Should Know,” or None at All?

  18. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA MODEL RULE 8.4(G): Is It a Content-Based Speech ProhibitionThat, on the Face of its Comment, Discriminates Based on Viewpoint?

  19. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA MODEL RULE 8.4(G): Does It Actually Protect Lawyers’ Freedom of Client Selection, Including Declinations Based on Their Moral Objections to Client Objectives?

  20. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA MODEL RULE 8.4(G): What Does It Mean by “Legitimate Advice or Advocacy,” and Whose Standard of “Legitimacy” Will Be Applied?

  21. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA MODEL RULE 8.4(G): Why Was the Exclusion for “Conduct . . . Protected by the First Amendment” Removed from the New Comment?

  22. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA MODEL RULE 8.4(G): States’ Reception (and Widespread Rejection)

  23. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession ABA MODEL RULE 8.4(G): Justified Distrust of Speech Restrictions – “Cultural Shift” in the Legal Profession Against Social Conservative Viewpoints

  24. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession Justified Distrust: The ABA’s Support for Expansive Abortion Rights

  25. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession Justified Distrust: Progressive Lawyers’ Longstanding Advocacy for BroadRestrictions on Speech Opposing Abortion

  26. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession Justified Distrust: Recent Advocacy of Speech Restrictions and Compulsions Relating to Same-Sex Marriage

  27. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession Justified Distrust: Rising Opposition to Free Speech on College Campuses and in Law Schools

  28. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession “Professional Speech” and Model Rule 8.4(g): National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018)

  29. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession CONCLUSION What does it truly mean to have a “diverse and inclusive” legal profession?

  30. Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession CONCLUSION “Confident Pluralism”

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

  32. Thank you.

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