NCLA Warns DC Court of Appeals Not to Adopt Proposed Rule that Would Restrict Lawyers’ Speech
Washington, DC (January 15, 2025) – The New Civil Liberties Alliance has submitted comments urging the District of Columbia Court of Appeals to reject a proposed amendment to Rule 8.4 of the District of Columbia Rules of Professional Conduct that would violate lawyers’ First Amendment rights. The proposed rule’s vague language would subject attorneys to discipline for engaging in purportedly harassing or discriminatory speech or conduct even if they lack any intent to discriminate. This unconstitutional proposal should be rejected and the trend of stifling freedom of speech for attorneys nationwide must be stopped.
The Proposed Rule exposes attorneys to discipline for “derogatory or demeaning verbal … conduct” based on race, sex, or any of the other numerous protected categories, running headlong into U.S. Supreme Court decisions granting First Amendment protection—even to professional speakers—for “disparaging” speech. More disturbing yet, lawyers could be punished whether or not they intentionally harass or discriminate against anyone. The term “discrimination” is inherently vague. The word “harassment” has no fixed meaning, allowing bar officials to adopt an expansive definition, declare that a speaking attorney “reasonably” should have known that definition, and impose career-ending sanctions in cases involving speech they subjectively find distasteful.
Adopting the Proposed Rule would inevitably chill attorneys’ speech, leaving few willing to speak out on controversies related to the 13 protected categories if they know it could jeopardize their careers. Society would suffer from lawyers censoring themselves, abandoning their leading role in presenting both sides of issues.
Most states have either completely or largely rejected the adoption of American Bar Association Model Rule 8.4(g) because of its infringement on free speech. Courts have also intervened to block the rule. Just last month, NCLA won a case at the U.S. Court of Appeals for the Second Circuit, reviving the Cerame v. Slack lawsuit challenging a Connecticut bar rule that restricts attorneys’ speech based on content and viewpoint. In 2020, a federal court preliminarily enjoined a Pennsylvania Rule of Professional Conduct on harassment and discrimination that was narrower in scope, holding in Greenberg v. Haggerty that it violated attorneys’ First Amendment rights. While that case was ultimately overturned for supposed lack of standing, the lower court’s First Amendment decision provides a forceful reminder of what is at stake. And a dissenting Third Circuit judge left little doubt that a future plaintiff with standing would succeed on a First Amendment challenge to the rule. These two cases suggest that the proposed D.C. rule is unconstitutional.
NCLA released the following statement:
“The D.C. Bar’s proposal fails to engage with recent challenges to similar professional conduct rules in other jurisdictions. It thus does not fully consider the First Amendment implications of its proposal. As attorneys, our primary duty is to support the Constitution and uphold the rule of law. We, as a profession, must not lose sight of that obligation simply because some speech is disfavored and may even be hurtful.”
— Kara Rollins, Litigation Counsel, NCLA
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ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.