Most bigots who hurl racist epithets at minorities in the United States face no serious consequences for their actions. Which might explain why it has been extremely gratifying to watch Aaron Schlossberg, a New York attorney, experience entirely justified ire over his disgusting tirade at a Fresh Kitchen in Manhattan. After Schlossberg overheard employees speaking Spanish, he baselessly accused them of being “undocumented,” threatened to call Immigration and Customs Enforcement, and declared: “If they have the balls to come here and live off my money—I pay for their welfare. I pay for their ability to be here. The least they can do … is speak English.”
A recording of the exchange promptly went viral earlier this week, and the Intercept’s Shaun King soon identified Schlossberg as the xenophobe in the video. Then, on Thursday, two government officials took action: Democratic Rep. Adriano Espaillat of New York and Democratic Bronx borough president Ruben Diaz Jr. filed a formal complaint against Schlossberg with the discipline committee of the New York State Unified Court System. Their grievance asks the committee “to affirm that such misconduct and behavior will not, and must never be tolerated.” Although the letter does not request a specific action against Schlossberg, Diaz told the Washington Post that he wants the attorney to be disciplined, suspended, or disbarred.
That almost certainly will not happen. Yes, Schlossberg’s conduct was reprehensible. He deserves all the disdain that he has received. But state attorney discipline committees do not, and should not, have general authority to punish lawyers for their nasty (but non-criminal) behavior outside of the law.
Notably, Espaillat and Diaz’s letter does not cite the specific provision of New York’s Rules of Professional Conduct that they believe he violated. That’s because there probably isn’t one. Had Schlossberg committed a crime, he could have been disciplined, but it does not appear that his conduct rises to the level of criminal harassment. If he had engaged in racism within his law practice, he could also be sanctioned, but his outburst occurred at a public restaurant.
That leaves a catch-all clause that prohibits attorneys from engaging in “any … conduct that adversely reflects on the lawyer’s fitness as a lawyer.” This rule was not designed to capture racist rants in public—it is more commonly used to sanction attorneys who bring ill repute to the court system and the practice of law. Had Schlossberg invoked his law firm in order to intimidate the Fresh Kitchen employees, the discipline committee might have a case. His diatribe alone, though, likely does not violate this rule.
That may be for the best. Plenty of state bars have a broad rule like this one, but their discipline committees are hesitant to use them against lawyers who are jerks in public. That’s for good reason: The prohibition uses a subjective standard that could be used to chill speech protected by the First Amendment. State bars tend to be relatively equitable arbiters, but allowing these agencies to enforce a mandatory speech code for lawyers would surely be unwise. Could a vulgar public fulmination against a grotesquely wealthy individual reflect adversely on a lawyer? What about a scathing verbal assault against a group of Donald Trump supporters? These hypotheticals are undoubtedly distinct from Schlossberg’s ethnicity-based attack. But allowing state bars to restrict racist speech outside of legal practice could grant them a broader censorship authority that might not always be deployed so benignly.
So, yes, Schlossberg’s behavior was deplorable, discriminatory, and disgusting—he provides a compelling case, in just a few seconds, that he is not fit to practice law. But it’s the public—his landlords, his clients, his employees, and law partners—who must make a decision about whether he loses his livelihood. There is no indication that Schlossberg has misled a court, mishandled funds, or deceived a client. Until evidence of such malpractice emerges, no organ of the state has power to strip him of his law license. It’s up to the rest of us to ensure that his career goes down the tubes where it belongs.