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Ethics: Model Rule 8.4(g) and Constitutional Limits on Regulating Attorney Expression of Unpopular Positions

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Thursday, April 22, 2021

Recorded event now available

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This CLE course will review the efforts by the ABA and many state bars to regulate against “harassment” and “discrimination” in an attorney’s speech or conduct, the debate over ABA Model Rule of Professional Responsibility 8.4(g), and when a state can legitimately regulate an attorney’s speech related to the practice of law. Many recent efforts at excising “harassment” and “discrimination” have been criticized for violating the First Amendment because they may prevent an attorney from speaking out on controversial and important topics and targeting speech outside of the ordinary course of a lawyer’s court-related duties, such as a conversation at a bar dinner or a presentation at a CLE event. Now, a federal district court in Pennsylvania has issued a preliminary injunction against one state’s attempt to regulate such speech and conduct. Greenberg v. Haggerty, Case No. 20-3822 (E.D. Penn. Dec. 8, 2020).


In 2016, the American Bar Association proposed Model Rule 8.4(g) which makes it professional misconduct to “engage in conduct that 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.” ABA Model Rule 8.4(g). The rule utilizes a broad definition of “conduct related to the practice of law” which includes not only “representing clients; interacting with witnesses” and other in court activities, but also “participating in bar association, business, or social activities in connection with the practice of law.” Id. Comment 4.

The advent of this rule immediately generated intense controversy. Many states expressly rejected the adoption of Model Rule 8.4(g). And a wide variety of First Amendment and Constitutional Law scholars have written criticizing Model Rule 8.4(g) for its potential to stifle or censor attorney speech. In the first few years after the ABA put the rule forward, only Vermont adopted it wholesale. But in the past few years, a few additional states including Pennsylvania and New Mexico have adopted versions of the rule.

The Pennsylvania rule was challenged last year shortly after its adoption. A federal district court in Greenberg v. Haggerty, Case No. 20-3822 (E.D. Penn. Dec. 8, 2020), and found Pennsylvania's version of ABA Model Rule of Professional Responsibility 8.4(g) to likely be unconstitutional and issued a preliminary injunction against its enforcement.

Listen as this panel of First Amendment experts discusses the regulation of attorney speech, the legality of Model Rule 8.4(g), and what Greenberg v. Haggerty, teaches going forward.



  1. Regulation of lawyer speech
  2. History of Rule 8.4(g)
  3. Constitutional concerns under Rule 8.4(g)
    1. Due process
    2. First Amendment free expression
    3. Freedom of association and religion
    4. Vagueness
  4. Understanding when speech or conduct is or is not "related to the practice of law"
    1. NIFLA and the regulation of occupational speech
    2. Commercial issues
    3. Political speech


The panel will review these and other key issues:

  • What is the difference between regulating conduct and speech in light of the Supreme Court's decision in NIFLA v. Becerra, 138 S. Ct. 2361 (2018)?
  • What do key terms in Model Rule 8.4(g) mean?
  • What are the First Amendment concerns that Model Rule 8.4(g) raises?
  • How the rule might be revised to obtain its goals


Blevins, Ethan
Ethan W. Blevins

Pacific Legal Foundation

Mr. Blevins litigates cases involving the First Amendment, property rights, and the separation of powers.

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Eckler, Donald
Donald Patrick Eckler

Pretzel & Stouffer

Mr. Eckler handles a wide variety of civil disputes in state and federal courts across Illinois and Indiana. His...  |  Read More

Ortner, Daniel
Daniel M. Ortner

Pacific Legal Foundation

Mr. Ortner joined Pacific Legal Foundation in the fall of 2018, focusing on the First Amendment, property rights,...  |  Read More

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