The Volokh Conspiracy

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Judge Kenney Provides Roadmap to Stop ABA Model Rule 8.4(g)

The ABA, and defenders of the rule, now have to contend with a reasoned decision that faithfully applies Supreme Court precedents.


I have been writing about ABA Model Rule 8.4(g) for nearly five years. Now, for the first time, a court has weighed in on the constitutionality of this measure. Today, Judge Chad F. Kenney (E.D.Pa.) ruled that Pennsylvania's version of Rule 8.4(g) violates the Free Speech Clause First Amendment. I blogged about the case back in August. And Eugene excerpted some portions of the court's opinion. This passage, I think, summarizes the constitutional argument:

There is no doubt that the government is acting with beneficent intentions. However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance. Yet the government cannot set its standard by legislating diplomatic speech because although it embarks upon a friendly, favorable tide, this tide sweeps us all along with the admonished, minority viewpoint into the massive currents of suppression and repression. Our limited constitutional Government was designed to protect the individual's right to speak freely, including those individuals expressing words or ideas we abhor.

The constitutional defects with Rule 8.4(g) have been patent since the beginning. Defenders of the rule have taken one of three approaches. First, some defenders were quite candid, and admitted that the need to eliminate bias in the profession justifies pushing forward with this rule, even if it constitutionality is in doubt. Second, other defenders contended that the Bar could be entrusted to enforce the statute is in a constitutional manner, even if there was a theoretical risk of abuse. Trust us! Third, other defenders simply ignored binding Supreme Court precedent. For example, ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 493. But the opinion did not cite NIFLA v. Becerra–a case that formed the centerpiece of Judge Kenney's analysis.

Now, the landscape has changed. Those defending Rule 8.4(g) have the burden of responding to Judge Kennedy's opinion. And they must do so by engaging NIFLA and other precedents. The response can no longer be "trust us."

Eugene speculates that Pennsylvania may appeal the adverse ruling. The bar would be better suited to go back to the drawing board. Adopt a rule that prohibits legal bias in the practice of law that does not sweep so broadly to chill protected speech. And other states should take notice.