Comments to the Connecticut Bar Authorities: Proposed Rule 8.4(7), Connecticut Rules of Professional Conduct

NCLA strongly urges the Committee not to recommend adoption of the Proposed Rule, which largely mirrors the highly controversial Rule 8.4(g) of the American Bar Association’s (ABA) Model Rules of Professional Conduct. There is no need for an additional rule governing discrimination-based misconduct by Connecticut attorneys; such misconduct is already adequately addressed by Rule 8.4(4) of the Connecticut Rules.

More importantly, the Proposed Rule raises significant constitutional concerns. It authorizes administrators to discipline lawyers (including imposing sanctions that deprive lawyers of the ability to earn a livelihood) based on overly vague standards. Recent history demonstrates widespread disagreement over what conduct/speech one “reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, [etc.].” Moreover, imposing content-based restrictions on attorney speech (by declaring that certain expressions constitute “harassment”) violates clearly established First Amendment norms.

The U.S. Supreme Court has repeatedly held that attorneys are entitled to the same free-speech protections enjoyed by all other citizens.