An organization called the New Civil Liberties Alliance recently filed a complaint in Connecticut seeking to enjoin the implementation of the state’s recently adopted version of Model Rule 8.4(g). The NCLA’s stated mission is to protect constitutional violations by “the Administrative State,” which they describe as an unconstitutional administrative state within our U.S. government.
As you may recall, a similar complaint was successful in Pennsylvania last year. In that case, the court declared Pennsylvania’s version of the rule unconstitutional. After appealing, the state dropped the appeal and amended the rule instead. See here.
Just like the plaintiff in the Pennsylvania case, the plaintiffs in Connecticut argue that the rule imposes content-based and viewpoint-based discrimination and that the rule is so vague that lawyers are unable to tell what is prohibited and what isn’t.
The problem with the case in Connecticut is that the text of the rule (and its comment) adopted there is not the same as the one adopted originally in Pennsylvania.
The comment in Connecticut’s version limits the notion of “discrimination” to harmful speech or physical conduct directed at individuals and that makes an important difference. The invalidated rule in Pennsylvania was broader and therefore could be interpreted to regulate protected speech. The Connecticut rule is more focused and it might just survive the attack. For example, a statement expressing bias toward a protected group in general would have been a violation of the original rule in Pennsylvania but it would not be a violation of the rule in Connecticut. Although the notion of what is “harmful” is vague, I expect the defendants to argue that it is not much different than the type of language used in the analysis of employment cases in which courts have to determine if the working environment is “hostile.”
Evidently, the case is important and the result can be very influential in the continuing debate over Model Rule 8.4(g).
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