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

A live 90-minute CLE video webinar with interactive Q&A


Thursday, April 22, 2021

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, March 26, 2021

or call 1-800-926-7926

This CLE webinar 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).

Description

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.

READ MORE

Outline

  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

Benefits

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

Faculty

Blevins, Ethan
Ethan W. Blevins

Attorney
Pacific Legal Foundation

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

 |  Read More
Eckler, Donald
Donald Patrick Eckler

Partner
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

Attorney
Pacific Legal Foundation

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

Live Webinar

Buy Live Webinar
Early Discount (through 03/26/21)

Live Webinar

$147

Buy Live Webinar & Recording
Includes special savings of $170 (through 03/26/21)

Live Webinar & Download

$224

Other Formats
— Anytime, Anywhere

Early Discount (through 03/26/21)

Strafford will process CLE credit for one person on each recording. All formats include program handouts. To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video

48 hours after event

$147

Download

48 hours after event

$147