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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Ethics

Date & Time
  • event Date

    Wednesday, April 20, 2022

  • schedule Time

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

  • timer Program Length

    90 minutes

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.

$197.00
CLE
ALL

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. After a federal district court in Pennsylvania issued a preliminary injunction against one state's attempt to regulate such speech and conduct, Greenberg v. Haggerty, Case No. 20-3822 (E.D. Penn. Dec. 8, 2020), the ABA and some state bar associations issued clarifications. Whether those statements make any substantive difference remains to be seen.

Faculty

Daniel M. Ortner
Attorney
Foundation for Individual Rights and Expression

Mr. Ortner joins FIRE after four years litigating on behalf of free speech and equality under the law at the Pacific Legal Foundation. He has written and spoken extensively about First Amendment issues, including in The New York Times, The Hill, and The Epoch Times. Mr. Ortner's law review articles on free speech have been published in the Catholic University Law Review, BYU Law Review, and Virginia Journal of International Law among others. He is a member of the Virginia and California bars. He is also admitted to practice before the Supreme Court of the United States and several United States Courts of Appeals and United States District Courts.

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Ethan W. Blevins
Attorney
Pacific Legal Foundation

Mr. Blevins litigates cases involving the First Amendment, property rights, and the separation of powers.

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Patrick Eckler
Partner
Freeman Mathis and Gary, LLP

Mr. Eckler’s practice has evolved from primarily representing insurers in coverage disputes to managing complex litigation in which he represents a wide range of professionals, businesses and tort defendants. His record of success includes numerous summary judgments, several successful trial results and multiple favorable appellate results. His coverage practice for insurers and the insured involves CGL and personal lines policies, issues involving the duties to defend and indemnify, bad faith and the application of exclusions.

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Description

In 2016, the American Bar Association 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.

Only Vermont adopted Rule 8.4(g) wholesale. Pennsylvania and New Mexico have adopted versions of the rule, but the Pennsylvania rule was held to likely be unconstitutional in Greenberg v. Haggerty. In response, 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.

Whether or not this cured any constitutional defect, many still contend the rule fails to promote confidence in the legal profession and still fails constitutional muster.

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.

Outline

  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

Benefits

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)?
  • 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