Court of Appeals for Second Circuit holds lawyers have standing to challenge Connecticut's version of Rule 8.4(g)

 In a highly anticipated decision, the Court of Appeals for the Second Circuit recently ruled that the plaintiffs-lawyers have standing to challenge the constitutionality of a state rule similar to Model Rule 8.4(g).  The case is called Cerame v. Slack and you can read the opinion here. 

As you probably know, the opinion originated in a challenge to the rule in Connecticut which was dismissed on standing grounds by the lower court.  This opinion reverses that ruling which means that the case will be remanded.

The opinion reaches the opposite position reached by the Court of Appeals for the 3rd Circuit in 2023 in Greenberg v. Lehocky, in which the court held the plaintiff did not have standing to challenge the rule in Pennsylvania.  In that case, the lower court had declared the rule unconstitutional.  

The only other case I know of on the subject is called In the Matter of Adams, in which the Colorado Supreme Court decided on the merits that Colorado's version of the rule is constitutional.  

Long time readers of this blog know that I have argued repeatedly that, as drafted, the Model Rule is of questionable constitutional validity; but also that at least a couple of states have done a good job of rewriting the rule to fix the most glaring problems -- New York and Illinois among them.

If you are interested in this topic, click on this link and you will see my posts on this topic in reverse chronological order (ie, the most recent on top).  

For more on Cerame v Slack go to The Legal Profession Blog, The Volokh Conspiracy, and Courthouse News Service.

One year suspension for tax evasion

 Cases involving discipline for attorneys engaged in tax evasion or tax fraud are not uncommon.  However, the decisions vary considerably when it comes to the sanctions imposed.  So, in case you are doing some research on the inconsistent treatment of this issue among jurisdictions, here is the latest I have seen on it.  The Legal Profession Blog is reporting on a case from New York in which the court imposed a one year suspension for, among other things, failiong to file state and federal income tax returns for the preceding eight years and to pay his state and federal tax liabilities.  You can read more about it here.

Ex-Wisconsin supreme court justice who led investigation into 2020 election slapped with professional misconduct charges

 Read the full story here.

Illinois Supreme Court Amends Rules 8.4(j) and 5.1 Addressing Harassment and Discrimination

About a month and a half ago I reported that Illinois had finally adopted a version of Model Rule 8.4(g).  See here.  Illinois Lawyer Now has more on the story here.

Illinois adopts a version of Model Rule 8.4(g)

Back in November 2023 I reported that the Illinois Supreme Court Rules Committee held a meeting to discuss a number of proposals, including one to adopt a rule based on Model Rule 8.4(g).  You can read my comments about the hearing and the proposal here.

Yet, I had not seen anything about the proposal since then.  So, I was very surprised when I read in Faughnan on Ethics that the proposed amendment was officially adopted and that the new rule would go into effect in July.  See here.

I say I was surprised not because I was surprised to hear that the new rule was adopted but because I have not seen it reported anywhere here in Illinois! 

If you are a long time reader of this blog you know that I have criticized the Model Rule and the versions of the rule adopted in some other jurisdictions for being vulnerable to attack under First Amendment principles.  The adopted language in both the rule and its comment in Illinois is not as robust as the rule adopted in New York, but it is not bad. 

The original proposal included explicit language in the text of the rule itself stating that the rule would not apply to Constitutionally protected speech or conduct.  Unfortunately, that language was deleted from the rule and moved to the comment.  

Another issue with the adopted language is that while the text of the rule states that it is limited to conduct "in the practice of law", the explanation of what "in the practice of law" means included in the comment is the same used in the ABA Model Rule's comment to describe conduct "related to the practice of law" which is a broader concept.

We will have to wait and see how the rule is applied and interpreted, and whether it will get challenged as others have in other jurisdictions. 

The new Illinois Rule appears in Rule 8.4(j).  You can see a redline version here, and a clean version here.

Short article on why criticizing judges can be dangerous

 The New York Legal Ethics Reporter has published a good short article called "Criticizing Judges Can Be Hazardous to Your Professional Health."  You can read it in full here. 

Did Illinois Hearing Board recommend a six month suspension for violation of Rule 8.4(d) because there is no other rule and this one seems to work as a "catch-all"?

 That's a long title above, but hear me out.  Last July, I reported on a complaint filed in Illinois against a lawyer for his conduct toward courthouse personnel.  The conduct included making inappropriate comments, and advances on female court employees, which could have been defined as harassment.   

However, because Illinois has not adopted a rule like Model Rule 8.4(g), and the current rule related to harassment is ineffective, the disciplinary agency did not really have a rule to support the complaint.  So they did what disciplinary agencies sometimes do when there is no specific rule: they looked for a generic catch-all provision to try to frame the complaint around it.  And they found it in Rule 8.4(d) which relates to conduct prejudicial to the administration of justice.  

In my original post, I argued that this section of the rule was not meant to apply to the conduct at issue in the case.  But, because the Illinois Supreme Court has made it clear that all disciplinary charges must be based on a specific rule, the disciplinary agency was in a bind.  

I recently reported and provided a link to a hearing on whether Illinois should to adopt a rule like Model Rule 8.4(g).  (Go here for my comment on the proposal before the hearing; go here for my report of the hearing.)  Adopting a good version of that rule would provide a rule that would allow for the imposition of discipline in a case like the one of the lawyer harassing court personnel.  

But opponents of such a rule, ironically, will point to the fact that the case was prosecuted under an existing rule as proof that a new rule on harassment is not needed.  

Which brings me to today's post.  The Illinois Hearing Board heard the case as argued under Illinois Rule 8.4(d) and recommended a six month suspension.  Here is the Board's report.

As I have discussed previously (see my posts linked above), the proposed new rule can be improved significantly but it would be more on-point than trying to stretch the reach of the definition of "prejudicial to the administration of justice."

So what do you think?  What is the better choice:  (1) to adopt a new rule (which should be an improved version of Model Rule 8.4(g)), or (2) to reject such a proposal and stretch the meaning of conduct prejudicial to the administration of justice to include pretty much anything a lawyer does that the disciplinary agency can claim affects any aspect of the practice of law?

Illinois Hearing on proposal to adopt a rule like Model Rule 8.4(g)

 Last week I reported that the Illinois Supreme Court Rules Committee was going to hold a meeting to discuss a number of proposals, including one to adopt a rule based on Model Rule 8.4(g).  I posted my comments on it here, and if you did not read that post, you probably should go there are read it before watching the hearing.  At the time, I had missed the deadline to participate but I expected others to do so, and I knew that at least the proponents of the proposal would present their position.

You should watch the hearing to reach your own conclusions, but here are my quick thoughts.  First, if you read my previous post you will remember that I am not a huge fan of the proposal but I can live with it because it clearly states in the comment that the rule does not regulate Constitutionally protected speech.  That is a key to me.  Today at the hearing I found out that the original proposal included that statement in the text of the rule itself, which I have argued is a better approach and, thus, would be my preference.  The rule recently adopted in New York, which I think is the best yet, takes that approach.  However, even though the original proposal in Illinois included that provision in the rule, somewhere along the line (apparently by the Rules Committee) it got moved to the comment.  Not great, but I can live with it.

Now, the hearing did not go as I expected.  I thought there would be more comments in favor of the rule.  Instead, the only person who spoke in favor of the rule was a representative of the Illinois Bar Association, which is the main sponsor of the proposal, so of course they would speak in favor of it.  Other than that, nothing.  

The speaker did a good job arguing in favor of adopting the rule and I found myself agreeing with most of it, except that she tried to argue that the rule does not reach as far as the Model Rule by making a distinction based on the fact that the Model Rule applies to conduct "related to" the practice of law, while the ISBA proposal applies to conduct "in" the practice of law.  That argument fell flat on its face and was totally unconvincing.  The explanation of how the phrase "in the practice of law" should be interpreted was exactly the same used by the ABA when referring to conduct "related to the practice of law."  If approved, the Illinois rule will have the same effect at the ABA Model Rule despite the difference in language.  If that is the intent, I wish they would simply leave it as "related to" to avoid confusion.  If that is not the intent, then they need to make the distinction clear.  

Thus, the proposal still has weaknesses, so the question is whether the weaknesses are enough to reject the proposal altogether.  As you watch the arguments consider which side you think has more support.  One thing I will note is that the speakers against the rule argued repeatedly that the rule would violate the Constitutional protections for free speech, but they did not address how that would be the case if the comment to the rule would explicitly state that rule should not be interpreted that way and that speech would be protected.  

As I said, the proposal has some weaknesses and some of the speakers who argued against its adoption exposed some of them.  

I was surprised that only one person spoke in favor of the rule.  Obviously, there were written comments submitted to the Committee, but every other speaker spoke against it.  Not one of them argued for changes to the proposal to make it more acceptable to them.  They were all or nothing.  The speakers who were opposed to the proposal saw nothing in it of value and all argued it should be rejected in its entirety.  Full stop.  And, just like it was during the commentary period for the ABA's Model Rule, it felt the opposition was a concerted effort by Christian organizations arguing that they should not be subject to discipline for discriminating based on their religious beliefs, that the proposal would violate the Constitution (even though the proposal explicitly states it should not be interpreted that way) and that the current rule is adequate.  (Although it is clear that it is "adequate" because it is actually inadequate at addressing the problem since it depends on the adjudication of claims by other government agencies, which does not happen often.)

I was also surprised that there was no attempt at compromise.  Speakers either wanted the full proposal rejected or adopted.  Nothing in between.  The only thing that came close, and with which I agree too, was a comment by the speaker for the ISBA who said they supported moving the statement about constitutionally protected speech back to the text of the rule.  Other than that, all I heard was either support for the proposal as is, or opposition to it in its entirety.  

Illinois to consider proposal to adopt a version of Model Rule 8.4(g)

November 8, 2023

The Illinois Supreme Court Rules Committee will hold a public hearing on November 15 to address public comments on five proposals, including a proposal to amend Illinois Rule of Professional Conduct 8.4 in order to largely adopt ABA Model Rule 8.4(g).  You can find the proposal here.  For more information on the hearing and the other proposals, go here.

Long time readers of this blog know that I have been following the saga of Model Rule 8.4(g) since back when it was just a proposal before the ABA and, since its adoption by the ABA, through the process of adoption and rejection by individual states. And, you might also recall, I am not a fan of the text of the Model Rule.  I have argued many times that it is vulnerable to an attack as violating the First Amendment to the US Constitution.  (To read my comments, go here and scroll through several pages of posts.)  

I have not checked recently what the current “box score” of adoption among jurisdictions is, but the last time I checked (in late 2022) the Model Rule had been adopted without changes in only one jurisdiction (Vermont) and with modifications in seven, while it had been rejected in eight states,   Two states have apparently abandoned proposals to adopt the Model Rule while three states and the District of Columbia are still considering adopting it.  

The most recent state to adopt a version of the Model Rule was New York, and the most recent one to specifically reject it was Idaho (see my post here). (And, by the way, I think the version adopted in New York is the best one yet. See my comment here.

But today’s post is about Illinois.

Illinois had a professional conduct rule on discrimination before the ABA adopted MR 8.4(g), and for that reason resisted adopting the Model Rule when it was first suggested.  You can find the, as of now, current Illinois rule (8.4(j)), here.  Yet, the effort to adopt the Model Rule did not abate and the Illinois State Bar Association (ISBA) continued to work on a proposal. 

That effort resulted in a formal proposal to amend the current rule and substitute it for a version of the ABA Model Rule.  The proposal is not as good as the version of the rule adopted in New York but it is better than the current rule and better than some of the versions adopted in other jurisdictions including the one adopted in Pennsylvania which was declared unconstitutional in a case later vacated for lack of standing.  [Note that, contrary to what has been reported elsewhere, the case vacating the lower court’s decision did not uphold the constitutionality of the rule; it merely held that the lawyer who brought the case did not have standing.  The court left the question on the constitutionality of the rule to a future day when a lawyer with standing would challenge it.  For my comment on this case go here.]  A case challenging the Constitutionality of the rule adopted in Connecticut is pending.

So, what are the highlights of the proposal in Illinois?

The current rule only considers misconduct conduct that has been adjudicated to violate a federal, state or local statute or ordinance that prohibits discrimination and only if that conduct is determined to reflect adversely on the lawyer’s fitness as a lawyer.  That makes the rule very limited in scope and available in very limited circumstances.  It also forces the disciplinary agencies to have to wait until the conduct is adjudicated as discrimination by other government agencies, which can take a long time, if it happens at all to begin with.

In contrast, the new proposal largely mirrors the scope and availability of Model Rule 8.4(g), which includes the fact that the rule would apply to conduct outside the practice of law, as long as it is related to the practice of law.  By comparison, other jurisdictions have limited the application of similar rules to conduct in the actual practice of law.  Obviously, if you think that the Model Rule is too expansive, then you won’t like the ISBA proposal either.  

The ISBA proposal also adopts the view expressed in the Model Rule that suggests that lawyers should be able to choose clients freely, presumably even if doing to looks like they are discriminating.  For example, presumably lawyers could, without violating the rule, offer to provide services only to women or to men, as some divorce firms do now.  

Unfortunately, the proposal (in its comment) continues to use the euphemism “verbal conduct” in an attempt to make an unworkable distinction with the concept of “speech,” but at least it also includes an explicit statement affirming that Constitutionally protected speech will be protected from prosecution under the rule.  

To me, this is the most important aspect of the whole proposal – and it bothers me that it is relegated to the comment rather than placed in the text of the rule itself.  But something is better than nothing, and it is an improvement over the ABA Model Rule which does not address the issue at all.  

Thus, the proposal states in a new suggested paragraph in the comment to the rule that “Conduct protected by the Constitutions of the United States or the State of Illinois, including a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy, does not violate this paragraph.”   

Aside from the fact that the reference to “this paragraph” is misleading (since it reads like it refers to the comment rather than to the rule), this is a key aspect of the proposal without which I would not support it. And for that reason, I think this statement should be part of the text of the rule itself, as it is in the recently adopted rule in New York.  

Also, oddly, if there was a place to use the phrase "verbal conduct" it would be here, but the drafters decided to simply say "conduct."  A better way to draft this statement would have been 

"Conduct or speech protected by the Constitutions of the United States or the State of Illinois does not violate the rule.  This includes, but is not limited to, a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy."

Finally, I noticed that the proposal (again, in the comment) includes the obligatory silly reference to the claim that “[t]he Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective.”

Obviously, this is a well intended attempt to suggest that we should not worry about the rule because we can trust that regulators are not going to try to enforce it randomly or in violation of people’s rights.  As I have argued before, this is naive at best (see here) since history proves otherwise. But in this particular case it does not bother me as much since the suggested text in the comment makes it explicit that Constitutionally protected speech will continue to be protected.  (Again, I wish that statement had been placed in the text of the rule itself, but I guess I’ll get over it.)

So, all in all, the proposal is a good effort and I expect it will be approved.  I would make a few changes but I can live with it.  

Would this proposed new version of the rule make a difference?  How would it be used to regulate the practice of law?  I am not sure we know exactly how, but here is a quick example.  In a recent post I discussed a complaint filed against a lawyer charging him with a violation of Illinois Rule 8.4(d) which refers to conduct prejudicial to the administration of justice under circumstances in which I argued were "a stretch" because the conduct was more along the lines of the type of conduct a rule like Model Rule 8.4(g) seeks to address.  I suspect that the disciplinary agency charged the lawyer using Rule 8.4(d) because they did not feel there was another rule they could use.  If the new ISBA proposal is approved, they would have a new, and more adequate, rule to use in cases like those.  For my comment on that case go here.

UPDATE 11-15-23:  The hearing was held today and you can watch it below or, if you can't see the player, you can go here.  The discussion of the proposal starts at about the 29 minute mark.  There was only one speaker in favor of the proposal (a spokesperson for the proponent ISBA), and several speakers against it.  As it happened with the ABA proposal way back when it was discussing approving what later became MR 8.4(g), the opposition appeared to be a concerted effort by Christian groups that argued, essentially, that they should be allowed to discriminate based on their faith/values, and that to the extent that there was other objectionable discrimination going on, the current rule is enough to deal with the problem.  

Here is the video.  Remember that you can click on the square icon in the bottom right corner to resize the window to full screen.

Should this lawyer be subject to discipline in Illinois?

Back in 2013, the Illinois Supreme Court decided in a case called In re Karavidas, 999 N.E.2d 296 (Ill. 2013), that the state could not subject a lawyer to discipline for conduct outside the practice of law unless the state could make a case that the conduct was a violation of a specific rule of professional conduct.  As the court explained:

    . . . we hold that professional discipline may be imposed only upon a showing by clear and convincing evidence that the respondent attorney has violated one or more of the Rules of Professional Conduct. Mere bad behavior that does not violate one of the Rules is insufficient.

    . . . . [B]efore professional discipline may be imposed . . . , the [State] must demonstrate that the attorney violated the Rules of Professional Conduct. To the extent that any of our prior cases suggest that an attorney may be subjected to professional discipline for conduct that is not prohibited by the Rules of Professional Conduct or defined as misconduct therein, we hereby [overrule those cases].  . . . Personal misconduct that falls outside the scope of the Rules of Professional Conduct may be the basis for civil liability or other adverse consequences, but will not result in professional discipline. 

The court wanted to put an end to disciplinary actions brought on tenuous charges based on claims of conduct unbecoming the profession, or conduct that tarnished the image of the profession, etc., which is not surprising since other jurisdictions have moved away from the old "appearance of impropriety" standard too. 

And this is why this bit of news caught my eye:  a disciplinary complaint has been filed in Illinois against a lawyer for inappropriate harassing conduct directed at the staff of a law library.  

I am not in any way suggesting that the conduct was not inappropriate, or objectionable.  In fact, maybe it was criminal - I don't know.  What I am suggesting is that the complaint does not seem to be consistent with the principle set in Karavidas.

You can read the complaint here, but if you are looking for the specific rule of professional conduct allegedly violated you won't find it until the very end of the last paragraph of the complaint, almost as an afterthought.  And that rule is 8.4(d) which relates to conduct prejudicial to the administration of justice.  

Here is paragraph 19 of the complaint:

    . . . Respondent has engaged in the following misconduct: conduct that is prejudicial to the administration of justice, by conduct including, but not limited to, touching the head and hair of H.M., a Will County Courthouse law library employee, without her consent in March 2021; telling an employee of the Clerk’s office to “eat shit and die;” asking a female employee of the Clerk’s office to have dinner with him; and making a comment to the effect of “If I were 55 years younger, I would get with her,” about C.S., a law student-judicial extern, to a group of judicial externs; resulting in disruption to Courthouse operations and necessitating the use of Courthouse resources to investigate Respondent’s conduct and to place restrictions on Respondent’s access to Courthouse facilities, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

Again, I agree that the conduct was inappropriate, and may be the basis for some form of liability.  What I am wondering is whether it meets the requirements set forth by the Court in Karavidas.  At first sight, it does since the complaint is clearly using a Rule of Conduct to claim the basis for discipline.  But I would expect someone to raise the questions as to whether the conduct is the type of conduct to which that rule should apply.

I always thought of the notion of "prejudicial to the administration of justice" as conduct that interfered with a court's ability to properly conduct a proceeding.  But maybe my understanding is too limited in that way.  Or, on the other hand, maybe the argument in the complaint is trying to stretch the concept a little bit too far.  What do you think?

Or, maybe what this shows is that we need a new rule, because you might be wondering why the disciplinary agency did not charge the attorney with a violation of a rule like Model Rule 8.4(g).  

The answer to that question is that Illinois has not adopted Model Rule 8.4(g) because when the ABA adopted Model Rule 8.4(g), Illinois had a preexisting rule regulating conduct deemed to constitute discrimination or harassment.  The problem is that Illinois' rule is of limited applicability and would not apply to the facts of this case.  You can find it here under 8.4(j).

So, if the conduct in this case is something that ought to be the subject of professional discipline, maybe a well drafted version of Rule 8.4(g) should be adopted to deal with conduct like the one in this case rather that trying to stretch the interpretation of the meaning of "the administration of justice" in Rule 8.4(d).  

Of course, what constitutes a "well drafted" version of Model Rule 8.4(g) is still up for grabs, and before the courts, and would be the subject of a different and long conversation.  For my posts on that subject you can click here and scroll down, but to save you the research, let me just say that I think the Model Rule is vulnerable to a Constitutional attack, and that I think the rule in New York is the best drafted one I have seen yet.  

Nebraska Supreme Court asks for comments on proposed amendment to adopt rule similar to Model Rule 8.4(g)

By now I am sure readers of this blog are familiar with Model Rule 8.4(g) and the debate on whether it would survive a Constitutional attack on First Amendment grounds.  (Pennsylvania's version of the rule was declared unconstitutional and a challenge has been filed in Connecticut.)   

Now comes news that the Nebraska Supreme Court has circulated for comment a proposed amendment to the state's Rule 8.4 which adopts much, but not all, of the language in Model Rule 8.4(g).  

Unfortunately, it does so in a way that also leave it open to the same type of Constitutional challenge.  States should look at the proposal in New York, which has not been officially adopted yet, for a better alternative that minimizes the rule's Constitutional vulnerability.

To read all my posts about this topic, including posts on the Model Rules itself, the cases in Pennsylvania and Connecticut and the proposal in New York, go here and scroll down for all the stories.

How not to practice law: start dating a client and then help him murder his "ex"

Above the Law is reporting on a case in Oklahoma in which the state is seeking the death penalty for a lawyer.  The lawyer is accused of three counts of deliberate and intentional first-degree murder and one count of first-degree burglary in connection with the murders of the lawyer's client ex-girlfriend and her parents.  You can read the story here.

Should the Character and Fitness Committee ask whether an applicant has ever been arrested?

In a recent report, a working group of the New York State Bar Association concluded that the New York Bar should not and perhaps legally may not ask applicants to the bar whether they have been arrested. (In New York, the question is known as "Question No. 26). The main reason appears to be the correlation between race and ethnicity, on the one hand, and interactions with the police, on the other. 

This is an interesting issue that I must confess I have not given enough thought to.  In contrast, over at Justicia, Joanna L. Grossman, the Ellen K. Solender Endowed Chair in Women and Law at SMU School of Law, has posted a thoughtful comment on this question.  She proposes a compromise:

Accordingly, if Question 26 is reconsidered, I would propose the following substitutes for eliminating altogether an inquiry into arrests: (a) exempt groups whose membership correlates with arrest rates and therefore are suggestive of bias, or (b) take arrests of African Americans and Indigenous people with a grain of salt in reviewing Question 26, or (c) keep the question but only for domestic violence and rape (and all of their synonyms), or (d) keep the question but investigate more deeply the cases involving perpetrators who know their victims. At a time when more and more seemingly ordinary people turn out to be dangerous and violent con artists, the New York Bar must do its part to screen malefactors out of the profession.

Article on the case against John Eastman

As you probably know by now, the State Bar of California recently announced that it had initiated a State Bar Investigation into John Eastman, former Champman University professor, for his involvement in the Trump's campaign efforts to invalidate the results of the 2020 Presidential Election. 

The fact that the State decided to make announcement itself generated some controversy.  See here, for example.  But, perhaps more interesting, is the discussion of the merits of the issue.  What is the basis for the complaint?  Is it valid?  Is it likely to lead to sanctions?

If you are interested on these questions, head over to Law Fare where Paul Rosenzweig offers a lengthy comment on the subject.

Another lawyer gets in trouble for nakedness

 A few days ago I posted a story about a lawyer who got in trouble for driving naked.  Today the story is about a lawyer who apparently has been consuming too much alcohol recently, and the most recent time it happened, well, you guessed it... she got naked in public and was arrested...  

Above the law has a comment on the case;  The ABA Journal has the story too.

How not to practice law: drive naked

The Legal Profession blog is reporting (here) that the Butler (Ohio) County Bar Association has recommended an indefinite suspension of an already-suspended attorney for a series of incidents of public indecency that included driving while nude.  The lawyer evidently suffers from a mental health issue (compulsion) that had driven him in the past to engage in inappropriate  sexual behavior.  The panel proposed a number of conditions for reinstatement.  

Complaint filed challenging Connecticut's recently adopted version of Model Rule 8.4(g)

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).

Should Louisiana adopt MR 8.4(g)?

 The Louisiana Legal Ethics blogs recently posted a comment on Model Rule 8.4(g) and on whether Louisiana should adopt it.  It concludes:

In my view, Louisiana either should do nothing at all (like what the committee did), or adopt a simpler anti-discrimination standard that is directly tethered to anti-discrimination laws applicable to Louisiana lawyers. Such anti-discrimination laws would include those enacted by the federal government, the State of Louisiana, and local governments. Doing so would avoid the need for the LSBA to “keep up” with changing notions of what personal characteristics are worthy of class protection. Doing so would also avoid imposing discipline on innocent and merely negligent lawyers. Here is my proposed language:

It is professional misconduct for a lawyer to: . . . (h) engage in conduct in connection with the practice of law that the lawyer knows is unlawful discrimination prohibited by federal, state, or local law. This Rule does not prohibit legitimate advocacy when a protected personal characteristic is relevant to the representation, nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

You can read the full comment here. 

Pennsylvania announces amendments to rule 8.4(g) which had been declared unconstitutional last year

 As you probably remember, 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.  

After appealing the decision, the Pennsylvania Bar voluntarily dismissed the appeal thus giving up the fight over the adopted version of the rule.  Instead, The Disciplinary Board of the Supreme Court of Pennsylvania set to work on finding a way to amend the rule in order to meet Constitutional scrutiny.  

Today, the Pennsylvania Supreme Court published the recommended changes, which will take effect on August 25.

The amended rule removes “by words” and “knowingly manifest bias or prejudice, or engage in,” provisions that were challenged in the suit. Several comments also were added defining harassment and discrimination. 

You can read the new version of the rule here.

South Carolina lawyers beware: anything you say can and will be used against you; Court imposes discipline because it found certain private speech offensive

I know that the big news item of the week was Rudy Giuliani’s getting an interim suspension, and I will comment on that tomorrow, but I want to start the week with a comment on an opinion from South Carolina which did not get any press but which I think is more interesting (and problematic.)

In this case, called In the Matter of Traywick, the Court accepted an agreement between the Office of Disciplinary Counsel (ODC) and a lawyer and suspended the lawyer from practice for six months. The case is important because the conduct upon which the disciplinary action was based was Constitutionally protected speech.  The Court did not address the First Amendment issue, however, because the lawyer did not raise it.  It is not clear why that was the case, but the court should have examined the issue anyway.  

There are so many things wrong with the opinion it is difficult to decide where to start, but since I am getting ahead of myself, let’s just start at the beginning.  

As the court explains it, beginning in June 2020, the ODC received complaints from forty-six separate individuals regarding statements that the lawyer made on his personal Facebook page.  Let's repeat that last point:  his personal Facebook page. The ODC identified twelve statements on the lawyer’s Facebook page that the court found problematic.  Yet, the opinion only cites two of them, which makes it impossible for us to evaluate whether the court's evaluation of the basis of the complaint is actually justified.

But I guess the point of only citing two of the statements is to suggest that those two statements, in and of themselves, justified discipline.  I guess the court did not feel the need to look at the other ten statements because those two were enough.  

Here is the problem.  Both statements were made in the lawyer’s personal page, both were statements of opinion and neither was related to the practice of law.  And, more importantly, even though offensive, both were protected speech under the Constitution.  The court seems to suggest that the statements constituted “incitement” but cites no proof that the statements were either directed at anyone in particular, nor had any actual effect on anyone’s conduct as a result.  Any way you look at it, the court simply imposed discipline because someone thought the content of what the lawyer said was offensive.  And that is precisely what the Constitution says the state can't do.

Yes, the lawyer’s expressions were offensive, but if the First Amendment stands for something, it stands for the principle that the state can’t impose sanctions simply because someone finds the speech offensive.  The fact that 46 people complained that the speech was offensive is irrelevant.  It may as well have been 460 people.  The result should have been the same.  Shame on the lawyer for saying what he said, but the state can’t take his license away for expressing himself unless the state can justify it without violating the lawyer’s rights under the First Amendment.

I find it laughable that the court says in the opinion that it considered the case being “mindful of [the lawyer’s] right to freedom of speech under the First Amendment to the United States Constitution.”  If the court had been mindful, it would have made an independent examination of the issue in order to make sure that the state's attempt to impose discipline did not violate the lawyer's rights.  And, I suggest to you, the state would have had a very difficult time supporting its position.

Ultimately, the court based its conclusion on the fact that apparently South Carolina still has a rule that allows the state to impose discipline for conduct that “brings the legal profession into disrepute” which is a standard that has been abandoned by most jurisdictions precisely because it is vague, difficult to justify and probably unconstitutional when used to regulate speech, as in this case.

Now, why do I think this obscure case is important?   

One reason it is important is that it is another example of why one of the arguments we keep hearing (and that I wish people would stop saying) in relation to Model Rule 8.4(g) is problematic.  The argument is that we don’t need to worry about Rule 8.4(g) because the rules are “rules of reason” and regulators and courts will not interpret them to discipline protected speech.  Really?  How many examples do we need of regulators imposing discipline for protected speech outside the practice of law to realize that if they can get away with it when there is no rule that justifies it, they will definitely try to get away with it when they have a rule that appears to justify it?

The lawyer's expressions in the South Carolina case would not have violated any version of 8.4(g) that I am aware of, and, yet, the court feels perfectly comfortable imposing discipline because the speech was offensive.  That worries me. 

Another reason the case is important is that it does not seem to be based on an allegation of a violation of any specific rule of professional conduct.  The type of general allegation that certain conduct violates "the sprit" of the rules or "the oath" would not be sufficient to support a claim for discipline in Illinois, where I live.  I am not sure what the state of the law is in other states, though.