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.

Illinois Commission on Professionalism Releases Study on Bullying in the Legal Profession

The Illinois Supreme Court's Commission on Professionalism has released a study on bullying within the profession.  Not surprisingly (since the study is about bullying), the study concludes that bullying disproportionately affects female attorneys, attorneys with disabilities, attorneys of color, younger attorneys, and LGBTQ+ attorneys.

Illinois Lawyer Now has a short summary of the study here, and you can read the full study 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.

How to reply to negative online reviews

 The issue of how to reply to negative online reviews is not new.  If you go to the "internet" section of this blog and scroll down you will find a number of stories on it.  The most recent one is from October of last year on an Arizona Ethics Opinion that concludes lawyers can disclose confidential information when replying to negative online reviews.

Today I am writing to link to a recent post over at LexBlog that again provides basic tips on the subject.  Here it is.

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. 

Upsolve wins in NY; Court opens door to non lawyer providing some legal services

 Back in March of this year, I posted a comment on an Op-ed piece in the New York Times arguing that it is important to ease "unauthorized practice of law" statutes in favor of access to legal services.  The piece was published in reaction to a case before the courts in New York at the time involving a not-for-profit organization called Upsolve which trains non-lawyers to provide limited legal advice to lower-income New Yorkers who face debt collection actions. 

The company was accused on engaging in the unathorized practice of law, but last May the court found in its favor.  [I just found out about the result this week!]

The issue in the case revolved around the company's claim that it had a first amendment protected right to do what it was doing, and the court agreed with the argument.  

I just found out about the result in the case because I read a comment in the New York Legal Ethics Reporter in which the author argues that the court reaches the correct result but for the wrong reasons, and suggests other approaches that would be better in order to address the problem that Upsolve seeks to help with.

The author of the comment concludes that "I am no First Amendment scholar, but even I can see that the Court’s argument is rather labored, as the Court dances around concededly contrary precedent to achieve what it perceives as the correct result"   and then suggests that "there has to be a better way for a program like Upsolve to exist than fighting dodgy constitutional battles."

To read the full comment, and particularly the recommendations on how to address the issue, go 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?

Court of Appeals for the Fifth Circuit holds that certain social media posts by the Louisiana Bar Association violated the First Amendment

Last week, the US Court of Appeals for the Fifth Circuit ruled that the Louisiana State Bar Association (LSBA) violated the US Constitution’s First Amendment when it tweeted several posts that were not “germane” to the legal profession. Since membership in the state bar is required for US lawyers to practice within the state, the court held that the bar’s communications must be related to the legal profession.  Jurist has more on this story here.

This ruling is consistent with older cases on the subject and with recent decisions in a number of jurisdictions that go even further holding that mandatory bar membership is, itself, unconstitutional.  I have reported on this subject before many times.  Go here and scroll down for the latest.

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.

Arizona Ethics Opinion concludes lawyers can disclose confidential information when replying to negative online reviews

Long time readers of this blog might remember a few posts on whether an attorney can reply to negative online reviews.  All sources I have seen agree that lawyers can respond to negative reviews but that they can not disclose confidential information about a client in the process.  (Go here for a recent post which includes links to the older ones.  Here is link to an ABA Opinion.)

I am writing about this today again because I just found out that at the end of last year, the Supreme Court of Arizona Attorney Ethics Advisory Committee issued an ethics opinion that contradicts what all those sources have opined on the issue.

This new opinion concludes that 

In the context of an unfavorable online comment or review by a former client, informed consent is unlikely, meaning that disclosure of confidential information will be improper unless permitted by the only exception potentially applicable to this scenario, which is found under Rule 1.6(d)(4). Under Rule 1.6(d)(4), a lawyer may reveal confidential information relating to the representation of a client to the extent the lawyer reasonably believes necessary "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." Comment 12 to Rule 1.6 further provides that, where a legal claim or disciplinary charge alleges complicity of the lawyer in a former client's conduct or other misconduct involving representation of the former client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. Comment 12 also states that the lawyer's right to respond arises when an assertion of such complicity has been made; section (d)(4) does not require the lawyer to wait for an action that charges such complicity to commence. Rather, the defense may be established by responding directly to a third party who has made such an assertion.

The question thus becomes whether negative online comments establish a "controversy," and, if so, whether disclosure of confidential information can ever be considered reasonably necessary to establish a defense. Negative online comments do establish a controversy between a lawyer and client the informality of an online critique is not relevant. Furthermore, disclosure of confidential information may be considered reasonably necessary to establish a defense. A client may not use confidentiality as both a sword and a shield in a formal legal or disciplinary proceeding. Similarly, the client should not be able to make public accusation of serious misconduct against their former lawyer and then invoke the lawyer's duty of confidentiality to prevent the lawyer from making an effective response or to punish the lawyer for having done so. An individual who elects to try their former lawyer in the court of public opinion rather than before a tribunal and makes serious accusations that put confidential information at issue assumes the risk that such information will be disclosed in the lawyer's response. Thus, untrue accusations of misconduct should be countered.

Go here and scroll down to read Supreme Court of Arizona Attorney Ethics Advisory Committee Ethics Opinion File No. EO-19-0010 (December, 2022).

Thank you to Victor Salas for sending me a copy of the opinion!

Court of Appeals for the Third Circuit does NOT decide on the constitutionality of Pennsylvania Rule 8.4(g); it simply dismissed the challenge for lack of standing

Long time readers of this blog know I have been following the debate about Model Rule 8.4(g) since it was merely a proposal before within the ABA and that I have been critical of its text as being vulnerable to attack under the First Amendment.  Only a few jurisdictions have adopted the rule, and almost all that have have amended the Model Rule’s text to try to improve its defects.  Some versions are better than others, though, and there are still some cases out there litigating the validity of different states’ versions.  For all my posts related to Model Rule 8.4(g) go here and scroll down (over several pages of posts).  

One of those cases came to an end last week when the Court of Appeals for the Third Circuit reversed a decision from a District Court in Pennsylvania for lack of standing.  The case is called Greenberg v. Lehocky, and you can read the opinion here.  

This is important, and I will get back to it in a minute, but let me repeat it now: The decision of the Court of Appeals did NOT (as has been reported elsewhere) find that the rule in Pennsylvania is Constitutional.  It simply found that the plaintiff did not have standing to challenge it and therefore that the lower court should not have decided the case to begin with.  

But let’s not get ahead of ourselves and start at the beginning.  Back in 2020, the Federal District Court for the Eastern District of Pennsylvania decided in Greenberg v. Haggerty, 491 F.Supp.3d 12 (ED PA 2020), that the Pennsylvania version of Rule 8.4(g) was unconstitutional because it violated the First Amendment.  The plaintiff in that case, Greenberg, argued that the rule infringed on Constitutionally protected speech and created a chilling effect over his ability to speak publicly about matters of important public concern.  The court agreed.  I wrote about the opinion here, here and here.  

Rather than wait for a decision on appeal, the State Bar abandoned the appeal and amended the rule.  However, Greenberg challenged the new rule again, and it was again found unconstitutional and the State appealed.  Now under the title Greenberg v. Lehocky, the challenge to the rule found its way up to the Court of Appeals for the Third Circuit and last week it issued its opinion dismissing the case for lack of standing.  The court found that because the plaintiff was trying to get the court to rule on the constitutionality of the rule before there had been any attempt by the state to enforce it, the plaintiff needed to show that (a) the rule would apply to the type of speech the plaintiff was planning to engage in, and (b) that there was a credible threat of enforcement in a way that would violate the speaker’s Constitutional rights.  And the court held that the plaintiff could not do either.

First, the court found that the Pennsylvania rule, unlike the Mode Rule, requires the state to show actual knowledge on the part of the lawyer and that the speech in question was targeted at specific individuals.  Greenberg’s argument was based on the possibility that his discussion of controversial topics might lead someone who found his views objectionable to complain to the Bar.  The court found that this possibility was not enough to support standing to sue over the yet to be enforced rule.

Second, the court found that the plaintiff could not show a credible threat of unconstitutional (future) enforcement of the rule because, somewhere along the timeline of the litigation, the State Bar affirmed that it would not enforce the rule for speech in the circumstances described by the plaintiff.  As the court put it, the defendant “disavow[ed] enforcement for any of plaintiff’s planned conduct.”

Now, before we go any further, I have a question.  What does that mean?  Is it now a written policy of some sort that the Bar will not enforce the rule against unpopular speakers, or speakers that others complain about because they find them offensive?  How can this “promise” by the Bar be enforceable?  Is it written in the comment to the rule? Is it published as accepted policy by the state? What happens if the members of the disciplinary board change and they start enforcing the rule differently?  Where is the record that says that the Board “disavowed” of this?  

I am sorry but I don't like this.  Unless this "statement" by the Bar that they will not abuse the discretion they have to enforce the rule comes with some enforceable mechanism against the possible misuse of the rule, I don't trust it.  You can read my views on this type of argument here.

Interestingly, the court based its conclusion partly on the fact that the plaintiff could not show a pattern of enforcement of the rule against constitutionally protected speech.  Yet, it recognized a case that proves that this practice is not only possible, but that it may support the argument that the fear of possible enforcement is valid.  The speech for which a lawyer was disciplined in that case (from a different jurisdiction) was Constitutionally protected, and as I have discussed in this blog before, there are other examples out there.  Not a lot, true, but enough for me to think that there may be a credible fear of enforcement, or, at least, that reasonable people might disagree on this.   (I commented on the case the court cites when it was originally reported here.)

I will admit that my opinion on this is also based on my own personal experience working for a state and fearing that what I say in the classroom will result in negative consequences.  The plaintiff in Greenberg made a similar argument, but the court said that that fear is based on the “political climate” in the country and not on the text of the rule.  

Finally, back to the most important part of the decision and the lesson to learn from it.

It is important to note, again, that the court did not decide whether the rule is constitutional or unconstitutional.  The court did not “uphold the constitutionality of the rule” (as I saw reported elsewhere).

In fact, the court explicitly states that all it can say is that it is too early to tell if the rule is unconstitutional.  Essentially, it suggests we have to wait and see how the rule is interpreted, applied and enforced before we can pass judgment on that.  And the concurring opinion goes further actually hinting that the rule might well be unconstitutional.  Both suggest that one day a lawyer with standing will challenge the rule and then the court will have a chance to decide on the Constitutionality of the rule.  

But the best lesson to learn in all this comes from the Concurring Opinion and that is that we can save ourselves the trouble by simply doing what I have been suggesting should be done from day one: take the time to draft a better rule!  

A few other states have adopted rules similar to Model Rule 8.4(g) but explicitly stated (either in the text of the rule or its comment) that the rule will not apply to regulate Constitutionally protected speech.  This solves the problem related to this question.  (There may be other problems, but those are not for today.)

As I have discussed elsewhere, I think the best rule so far is the one recently adopted in New York.  So, take note Pennsylvania, don’t wait for a lawyer with standing to start this fight again (a fight that the concurring judge says you will be fighting “against the current").  Listen to the concurring judge and fix the rule.  Call me or call the folks in New York and ask them how to do it properly. 

There is no reason to adopt a rule that is Constitutionally vulnerable ab initio (as the ABA did).  There is a way to draft a better rule that addresses the problem of discrimination and harassment that does not violate the First Amendment.  Just do it! 

Rudy, that's not how anything works, Part III: Giuliani found liable for defamation by default

A few days ago, I posted a story questioning why Rudy Giuliani would concede the main elements of a cause of action for defamation he had been fighting (based on his comments about two election workers).  Giuliani -- or perhaps, more accurately, the lawyer representing him -- apparently thought that it was a good tactic in order to avoid complying with a discovery request, but that made no sense.  My original comment explaining why the tactic was likely to fail is here.  

As I predicted, the tactic not only failed, it backfired spectacularly.  See here.  First it resulted in an order to explain his argument and eventually in a finding of liability by default.

Maybe Giuliani and his lawyer did not realize that what they did amounted to conceding the main elements of the cause of action and for that reason, and because of the fact that they did not comply with discovery, the court has found Giuliani liable by default.   

Now that default judgment has been imposed, the case will move to trial on the question of the value of the injury, ie, on the damages issue alone.  And if you have been paying attention to the story in the news and have watched some of the testimony by the plaintiffs, you know it is fair to say that the value will likely be high.  Plus, Giuliani will have to pay attorneys' fees to the plaintiff's lawyers and more in sanctions.

Giuliani is in real trouble.  He is reportedly in dire financial trouble and a huge verdict against him in this case will cause him a lot of distress.  He has been trying to find funding for his legal bills, which include pending disbarment proceedings in New York and Washington DC, the indictment in Georgia, and at least one other defamation case.  Reportedly, Trump is not contributing to his defense fund and Giuliani has put up his NY condo up for sale and is hosting events in attempts to raise funds.  (Trump apparently agreed to appear in one of them, although I won't be surprised if he makes the appearance all about himself and ends up trying to get contributions for his legal defense fund rather than for Giuliani, but that's another story for another day.)

You can read the court's opinion here.  You can find reports and commentary on the default judgment against Giuliani in the following:

Courthouse News Service

The Legal Profession Blog

NPR

The Guardian

Above the Law

NPR audio

Jurist

MSNBC

Rudy, I told you that's not how anything works! -- UPDATED

 Last Friday I posted a story about how Rudy Giuliani attempted to prevent having to comply with discovery in a defamation case by conceding all the elements of the cause of action against him and, at the same time, trying to raise defenses in the case.  And, after explaining the situation I concluded "Unfortunately for Giuliani, that’s not how anything works."  My original story is here.

I fully expected Giuliani's tactic to be rejected and that is just what happened.  Reportedly, the judge overseeing the case has given Giuliani the following options.  He can:

1.  submit a new stipulation conceding liability to the claims “all factual allegations ... as to his liability for plaintiffs’ defamation, intentional infliction of emotional distress, and civil conspiracy claims, and his liability as to plaintiffs’ claim for punitive damages” and that a default judgment as to his liability is appropriate, or

2.  explain why he is declining to submit such a stipulation by clarifying “what precisely his original stipulation conceded regarding the plaintiffs’ factual allegations and legal claims.”

Should Giuliani fail to choose one or two, the judge will convene a hearing (on August 15) to determine how, if at all, he has complied with her prior order to search and produce all materials responsive to the plaintiffs' discovery requests. 

Stay tuned!

MSNBC has coverage here.  TechDirt has a comment here.

UPDATE: 8-19-23:  Courthouse News Service reports (here) that "The judge in the Smartmatic suit ordered Giuliani to complete discovery production in two weeks, by August 30, or risk an order to a judgment of the company's legal fees arising from the particular motion for an order to show cause."

UPDATE: 9/3/23:  The Court has now entered a judgment by default against Giuliani and ordered him to pay attorneys' fees and other sanctions.  The case will now proceed to trial on the question of damages only which is likely to result in a very high verdict for the plaintiffs.  Go here for my post on this new development.

Why did Rudy Giuliani concede that he made false and defamatory statements about the plaintiffs in a defamation case, thus conceding the elements of the claim?! -- UPDATED

 Last Tuesday Rudy Giuliani filed a two-page stipulation in a long-running defamation lawsuit by two Georgia election workers stating that he “does not contest” that his statements about the plaintiffs were “false” and “carry meaning that is defamatory.”  According to the reporting, Giuliani’s attorney added that Giuliani was not in fact “admitting” to the plaintiffs’ allegations against him but making a decision to stop contesting them, which he says should end the plaintiffs’ effort to seek further factual evidence – emails, text messages and other communications – from Giuliani.

Unfortunately for Giuliani, that’s not how anything works.

First of all, trying to make a distinction between conceding the allegations and not contesting them is nonsense.  You can’t have it both ways.  In the document, Giuliani conceded that he made the statements alleged in the complaint, that the statements were false and that they were defamatory per se.  That means he conceded all the elements of the cause of action. Period, end of story.  All Giuliani has left after that is arguing affirmative defenses.  And which ones are there?  I don’t see any.  

He apparently claims that either the statements were statements of opinion or that they were constitutionally protected.  Both arguments are wrong.  

Once he admits that the statements he made were “false” he has admitted they were not opinions.  By definition opinions can’t be true or false – that’s what distinguishes them from statements of fact.  But Giuliani has conceded they were statements of fact.  So that argument is out - he defeated it himself!  

The other possible argument – that the statements were constitutionally protected, is also flawed.  First, the notion of defamation is based on the doctrine that not all speech is protected and that if it is not protected, it can result in possible liability.  That’s what defamation law is all about.  So the question becomes whether the plaintiff can meet the standard needed to show that the speech is not protected and, therefore, should subject the defendant to liability.

On that, the doctrine has created different standards for different categories of plaintiffs.  If the plaintiff is a public official or a public figure, the plaintiff has to meet a higher standard because speech about them is more protected.  But the plaintiffs in this case were neither.  They were private persons performing a volunteer job as election officials.  I could be wrong about this, but I don’t think they were elected officials for that job, and they were not known celebrities before the elections and before Giuliani and others started accusing them of misconduct.  If I am correct in those assumptions, the plaintiffs in this case do not have to show actual malice on the part of the defendant and will have an easier time defeating the argument that the statements were constitutionally protected.   

Second, Giuliani can’t just say that he wants to end discovery because he does not want to disclose more information.  Discovery exists to allow the parties access to information and, as everyone knows, discovery is not limited to evidence that can be used at trial.  You can use discovery to get access to evidence that will likely lead to evidence that can be used at trial.  In this case, the plaintiffs may want to use discovery to determine if there are other potential defendants they can go after or to discover support for a claim for punitive damages, for example.

The fact Giuliani says he is conceding the elements of the claim to end the plaintiffs’ effort to seek further factual evidence just makes me wonder what he has that wants to hide so badly. 

And, further, defamation was not the only claim in this case.  The plaintiffs’ also sued for emotional distress which is a separate cause of action and they should have the right to continue discovery in order to get evidence related to that claim, which should include the evidence that Giuliani apparently does not want them to get access to.

For these reasons, it seems to me the decision to concede the elements of the defamation cause of action was not a very smart one.  It defeats one of his defenses, makes it easier for the plaintiffs to support their claim and should not stop discovery.

Finally, as an aside, I also can't imagine that publicly admitting that he lied in a way that caused so much injury to private individuals is going to help Giuliani's chances to avoid discipline in the various disciplinary proceedings he is facing.

For coverage of Giuliani's confession see Politico, NPR, MSNBC, The Guardian, The Hill, The Conversation and Above the Law.

UPDATE 8/9/23:  As expected, the judge did not buy it.  See here.

UPDATE: 9/3/23:  The Court has now entered a judgment by default against Giuliani and ordered him to pay attorneys' fees and other sanctions.  The case will now proceed to trial on the question of damages only which is likely to result in a very high verdict for the plaintiffs.  Go here for my post on this new development.

Update on Idaho's rejection of Model Rule 8.4(g)

Back in January I reported (here) that Idaho rejected a proposal to adopt Model Rule 8.4(g).  A few days ago, the Louisiana Legal Ethics Blog published a comment.

Op-ed in support of easing "unauthorized practice of law" statutes in favor of access to legal services

Last year, a Federal District Court judge found that New York’s unauthorized practice of law statute violated the First Amendment’s protection of freedom of speech of a pastor who wanted to help members of his congregation sued in debt collection cases by providing forms and explanations on how to fill them out and on how to file them.  The case is currently pending on appeal before the Court of Appeals for the Second Circuit.

I am writing about this today because a couple of weeks ago, Professor Bruce Green (Fordham Law) wrote an Op-Ed piece in the New York Times supporting the view that states should ease up on restrictions on the practice of law.  The article summarizes his view which he also argued in an amicus brief filed before the court.  You should read the whole thing, but here is an excerpt:

[L]aws prohibiting the “unauthorized practice of law” hurt those who cannot afford a lawyer. Even those who have relevant training or personal experience but are not lawyers may not offer free advice on how to handle a common legal problem. . . . 

. . . . 

New York’s attorney general, Letitia James, argues in part that this is not a freedom-of-speech issue at all because [if allowed to do what he wants to do, the plaintiff would be applying “legal knowledge, judgment and skill to the facts” of an individual’s legal problem. That, she says, is the“practice of law,” not speech . . . 

When legal assistance requires highly specialized skills and knowledge, it becomes increasingly legitimate for the state to insist that only a lawyer provide it – for example, representing a client in a courtroom where one needs to know particularly complex procedural and evidentiary rules and other law, or drafting certain legal documents without a reliable model.

But it is unreasonable for states to forbid people to apply a modicum of legal knowledge, judgment and skill to their neighbors’ legal problems. . . . But for the unauthorized practice restrictions [social workers, librarians and teachers] too could learn how toassist people in low-income communities who have simple legal problems and no meaningful access to lawyers.

The broad-reaching laws barring the unauthorized practice of law impose too high a cost on those who can least shoulder it. . . . 

. . . .

The unauthorized practice prohibitions should not stand in the way of those seeking help with common legal problems from others in their communities who can capably provide it. . . . 

Idaho Supreme Court issues resolution explaining why it rejected Model Rule 8.4(g); hint: because it is unconstitutional...

In November 2021, the Idaho State Bar Commissioners recommended an amendment to Idaho Rule of Professional Conduct 8.4 to include anti-discrimination and anti-harassment provisions along the lines of those in Model Rule 8.4(g).  After the resolution was adopted by the members of the Bar, the proposal was sent to the Idaho Supreme Court but the Court declined to adopt the proposed amendment.  

Last week, the Court issued a resolution providing a full explanation of its rejection of the resolution explaining that it was “appropriate to explain our decision in some detail to explain our rationale for taking the action we are in order to provide guidance going forward in the event the Bar should seek to amend Idaho Rule of Professional Conduct 8.4 in the future.”  

The Court then proceeded to explain that although it commends the Bar’s continued attempts to address unlawful discrimination and harassment in the legal profession it felt obliged to reject the proposed resolution because, among other things, the proposed amendment “violates the First Amendment because it is not narrowly tailored to withstand strict scrutiny” and because it is void for vagueness and could have a chilling effect on speech.

You can find the court's resolution here or, through another link here.

I am not surprised by the opinion.  I, and many others, have been arguing that Model Rule 8.4(g)'s constitutionality is questionable for a long time.  You can read all my posts on the subject by going here and scrolling down.

Something I wish people would stop saying about Model Rule 8.4(g) makes its way to the proposal in Illinois

A few years ago, when Model Rule 8.4(g) was proposed and was being debated everywhere, I thought I would write a short article I was planning to call “Three things I wish people would stop saying about Model Rule 8.4(g).” 

At the time, those three things were: “the rule does not cover speech,” “we don’t need to worry about the rule being overused because enforcing it requires proof of knowledge” and “we should not worry about it because the rules are rules of reason and regulators are not going to try to enforce them randomly or in violation of people’s rights.”

I never got around to writing the article, but I am happy that it eventually became clear that two of these statements were wrong and most people stopped repeating them.  The rule is based on a negligence standard (not knowledge) and it does apply to speech.  In fact, the Pennsylvania version of the rule was declared unconstitutional because it was found to violate the First Amendment (as the Model Rule itself probably would be too.)   (See here, here and here).

But that is not why I am writing about this today.  I am writing because the third statement I wish people would stop repeating persists, and according to one comment I read recently, it is part of a proposal for a new rule in Illinios.

According to Faughnan on Ethics, 

“[t]he Illinois State Bar Assembly has now approved a version to be sent to the Illinois Supreme Court for (hopefully) adoption that hews closely to the ABA Model Rule in a number of ways. This action by the ISBA is a reversal of their prior decision in 2017 to reject the rule. The proposed Illinois RPC 8.4(j) would, like the ABA version, apply to all contexts “in the practice of law,” including things such as bar activities and social events. The Illinois proposal would also highlight through language in comments the notion that this rule, like all other ethics rules, is still a rule of reason requiring a reasonable construction. The Illinois proposal says out loud what is just implicit as to the ABA Model: “The 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.”” 

I will leave aside the fact that Illinois already has a rule that regulates discrimination and harassment so my comment is only on this notion that the rules are rules of reason which then leads to the conclusion that we should not worry about the possible unconstitutionality of the rule because we should trust those in charge of applying it will always do the right thing.  

I wish people would stop saying this!  Not only is it a way to give up on the challenge to draft a rule that would survive a constitutional attack, which implies we are willing to live with a questionable rule, but it is also naive and dangerous.  Constitutional protections exist to protect individuals from abuses by the government.  You are telling me now we are willing to give up on our protections because we are confident the government will not abuse the rules it creates to regulate us?

How many opinions and examples of abuse do we need to realize this is naive, at best.  Lawyers have been disciplined for engaging in Constitutionally protected conduct and speech before (see here and here, for example) and basing decisions on deference to the "reasonable perspective" of the regulators will inevitably result in more discipline for protected conduct that some find objectionable or offensive.

Now some might want to say that the conduct of those lawyers was reprehensible or offensive and that they should be disciplined for it.  Ok, you can take that position but if you do, please recognize that you are saying that it is fine with you if the government is allowed to impose discipline for constitutionally protected conduct and speech.*

And this leads me to a fourth thing that I wish people would stop saying and that is that anyone who criticizes Model Rule 8.4(g), or its state equivalents, must be in favor of discrimination.  This is a sign that the person making the statement has run out of arguments and the only thing left is to issue a personal attack.  

Stop it!  Criticizing the rule does not mean that one is in favor of allowing discriminatory conduct to continue. It means that one would prefer to see the regulation of that conduct be done properly.  There is plenty of serious literature about why this is important and about how it might be possible but requires more work. If you are interested in the debate related to Model Rule 8.4(g) and the First Amendment, take a look at the articles by Margaret Tarkington, William Hodes, and Bruce Green and Rebecca Roiphe in Volume 50 of the Hofstra Law Review, available here.  (Go download the articles now even if you don't have time to read them because they may not be available at this link for long.)  

For all my previous posts on the debates about Model Rule 8.4(g) and other related developments go here and scroll down.

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*Another reason I am concerned about this type of reasoning is because it has implications for other aspects of our lives.  As I am sure you are aware, there are statutes around the country now that seek to regulate how history is taught in our schools, and a recent US Supreme Court decision opened the door to religion in public schools (as long as it is the religion that the Court approves of, of course).  Soon teachers like me may not be allowed to teach issues related to race and the law, and so on. I can't say that the government is not going to abuse its view of what it finds offensive and use that view to impose discipline on those who want to explore other views.   If we leave it to those who are in charge of applying the rules to define what is "officially" offensive, history teaches us that, at least, the rules will be overused to impose their view of what is offensive.