July 31, 2017
The new ABA Model Rule 8.4(g) prohibits attorneys from engaging in “harmful,” “derogatory,” or “demeaning” speech in any activity “related to the practice of law,” including “bar association, business or social activities.”
Proponents of the rule have advanced several arguments in its favor and raised several defenses in answer to its critics. But these arguments and defenses are unconvincing because they’re based on factual misrepresentations or on mischaracterizations of the rule.
Proponents of the rule summarily dismiss the many claims that it is unconstitutional
Many legal authorities point out that the new rule is unconstitutional. Proponents of the rule simply ignore this ever-increasing chorus of constitutional criticism.
The Texas and South Carolina attorneys general – the only attorneys general to have thus far opined on the rule – have both issued official opinions that it would likely violate the free speech, free association, and free exercise rights of attorneys. Indeed, the South Carolina Supreme Court recently rejected the rule after the South Carolina attorney general issued his opinion against it.
The ABA’s own Standing Committee on Attorney Discipline, as well as the Professional Responsibility Committee of the ABA Business Law Section, warned the ABA that the new Rule may violate attorneys’ First Amendment speech rights.
And prominent legal scholars – such as UCLA constitutional law professor Eugene Volokh, Chapman University constitutional law and legal ethics professor Ronald Rotunda [By Subscription], and former U.S. Attorney General Edwin Meese, III – have all opined that the new rule is constitutionally infirm.