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  • videocam On-Demand Webinar
  • signal_cellular_alt Intermediate
  • card_travel Ethics and Specialty Credits
  • schedule 90 minutes

Ethics: Model Rule 8.4(g) and Unconstitutional Limits on Attorney Expression

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About the Course

Introduction

This CLE course will review the continued efforts by the ABA and many state bars to regulate against "harassment" and "discrimination" in an attorney's speech or conduct, the debate over ABA Model Rule of Professional Responsibility 8.4(g), and when a state can legitimately regulate an attorney's speech related to the practice of law.

Description

In 2016, the ABA proposed Model Rule 8.4(g), which makes it professional misconduct to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." ABA Model Rule 8.4(g).

The rule utilizes a broad definition of "conduct related to the practice of law," which includes not only "representing clients; interacting with witnesses" and other in court activities, but also "participating in bar association, business, or social activities in connection with the practice of law." Id. Comment 4.

The ABA ethics committee issued an opinion in 2020 narrowly interpreting Rule 8.4(g) to exclude comments on "issues of public concern" and suggesting that the rule applies only where comments are directed at specific persons.

Only Vermont adopted Rule 8.4(g) wholesale. Pennsylvania and Connecticut have adopted versions of the rule, and pre-enforcement challenger to the Pennsylvania rule was found to lack standing by the Third Circuit. A petition for writ of certiorari has been filed in that case.  There is currently pending a challenge to Connecticut's rule before the Second Circuit that was argued last fall.

There is a proposal pending in the Illinois Supreme Court Rules Committee to adopt a version of the rule.

In the meantime, other states, like Hawai'i have adopted rules that do not resemble Rule 8.4(g) other than to specifically target sexual harassment in the practice of law. Still other states like New York have adopted more narrow rules with specific protections for Constitutionally protected speech.

Listen as this panel of First Amendment experts discusses the regulation of attorney speech, the legality of Model Rule 8.4(g), and what Greenberg v. Haggerty teaches going forward.

Presented By

Donald Patrick Eckler
Partner
Freeman Mathis and Gary, LLP

Mr. Eckler is a Partner in Freeman Mathis & Gary, LLP’s Chicago office and is Co-Chair of the firm's Professional Liability / Errors and Omissions national practice section, Vice-Chair of the firm’s Midwest Coverage Team, Vice-Chair of the firm's Transactional Risks/Representations & Warranties practice team, and a member of the firm’s Appellate Advocacy Section. He is a highly experienced litigator who focuses his practice on professionals, insurers, and businesses in disputes in state and federal courts across Illinois and Indiana. In addition to working at the trial level, Mr. Eckler has successfully represented clients in numerous appellate matters and filed several amicus briefs on behalf of defense organizations. He is active in the organized defense bar both at the state and national level. Mr. Eckler is a past president of the PLDF and current Second Vice President of the Illinois Defense Counsel. He is on the Amicus Committee of the Defense Trial Counsel of Indiana and is a member of the DRI Third-Party Litigation Task Force. Mr. Eckler publishes a weekly column, For the Defense, in the Chicago Daily Law Bulletin, is the civil practice columnist for the IDC Quarterly, and is a frequent contributor to the PLDF Quarterly. He is a member of the Rules Committee and Chair of the Special Committee on Advocacy for the Appellate Lawyers Association. Mr. Eckler also gives an annual Illinois insurance coverage update to the Insurance Law Committee of the Chicago Bar Association. He is very active on LinkedIn with three posts daily focusing on developments in the law in Illinois and Indiana and trends impacting civil justice. Finally, Mr. Eckler co-hosts the Podium and Panel Podcast where they discuss recent oral arguments before the Illinois and Indiana courts of review, the Seventh Circuit, and the Supreme Court of the United States.

Richard Samp
Senior Litigation Counsel
New Civil Liberties Alliance

Mr. Samp has specialized in appellate litigation with a focus on constitutional law. He served as Chief Counsel of the Washington Legal Foundation for more than 30 years and recently retired after serving four years as Senior Litigation Counsel at the New Civil Liberties Alliance.  Mr. Samp has participated directly in more than 200 cases before the U.S. Supreme Court, including as counsel of record in Garland v. Cargill, a case being heard by the Court this term. Mr. Samp is a graduate of Harvard College and the University of Michigan Law School and clerked for a federal judge in Detroit.

Sally R. Wagenmaker
Attorney
Wagenmaker & Oberly, LLC

Ms. Wagenmaker provides legal counsel in corporate, tax, employment, and real estate matters for nonprofits operating on local, national, and international levels. Her clients include churches and other religious organizations, social service providers, and schools. Her corporate and tax work includes development of new tax-exempt entities, providing guidance for effective nonprofit governance and other operational legal issues. In addition, she represents clients in property tax exemption matters for charitable, religious, and educational purposes, shared occupancy arrangements, and property transfers.

Credit Information
  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

  • An excellent opportunity to earn Ethics CLE credits. Note: BARBRI cannot guarantee that this course will be approved for ethics credits in all states. To confirm, please contact our CLE department at pdservice@barbri.com.


  • Live Online


    On Demand

Date + Time

  • event

    Thursday, April 18, 2024

  • schedule

    1:00 p.m. ET./10:00 a.m. PT

  1. Regulation of lawyer speech
  2. History of Rule 8.4(g)
  3. Constitutional concerns under Rule 8.4(g)
    1. Due process
    2. First Amendment free expression
    3. Freedom of association and religion
    4. Vagueness
  4. Understanding when speech or conduct is or is not "related to the practice of law"
    1. NIFLA and the regulation of occupational speech
    2. Commercial issues
    3. Political speech
  5. Comparison between use of Rule 8.4(d) and Rule 8.4(g)
  6. Greenberg v. Lehocky – 3rd Circuit decision and petition for writ of certiorari
  7. Cerame v. Bowler – 2nd Circuit oral argument
  8. Proposal to the Illinois Supreme Court Rules Committee to amend Illinois Rule of Professional Conduct Rule 8.4(j)

The panel will review these and other key issues:

  • What is the difference between regulating conduct and speech in light of the Supreme Court's decision in NIFLA v. Becerra, 138 S. Ct. 2361 (2018) and other Supreme Court precedent?
  • What do critical terms in Model Rule 8.4(g) mean?
  • Did the ABA 2020 Ethics Committee comments make any difference in the scope or constitutionality of the model rule?
  • What are the First Amendment concerns that Model Rule 8.4(g) raises?
  • How the rule might be revised to obtain its goals