Sunday, March 21, 2021

Breaking news: Pennsylvania Bar abandons fight over constitutionality of anti-discrimination Rule 8.4(g) -- UPDATED

 March 16, 2021  (update, below)

Back in December, a federal district court declared unconstitutional Pennsylvania's version of ABA Model Rule 8.4(g) holding that it violated the First Amendment.  I wrote about the decision here and here.  

At the time, I said I was hoping the Pennsylvania Bar would appeal so we could get a decision from a Court of Appeals on the subject.  Then, as expected, in January, the Pennsylvania Bar field a notice of appeal to the Third Circuit. 

However, I just heard that yesterday, the Bar voluntarily dismissed the appeal.  I hope there will be more coverage about why in the next few days and I will surely report it when I see it.  

Now, presumably the Pennsylvania Bar will go back to try to draft a new version of the rule.  

I am sure the debate is not over.  Stay tuned.

UPDATE (3/21/21):   The ABA Journal has a short comment here.  In it, I noticed a common mistake regarding the debate on this topic.  Citing another source, the story attempts to distinguish the Pennsylvania rule from the Model Rule by suggesting that the model rule does not attempt to regulate speech.  This is nonsense.  The Comment to the Model Rule explicitly states that the rule applies to "verbal conduct" as well as "physical conduct."  And, if nothing else, let's be realistic.  Part of the motivation for the rule was clearly to get lawyers to stop saying bad things.   

No comments:

Post a Comment