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.

NEXT: Poetry Tuesday!: "The Song of Wandering Aengus" by William Butler Yeats

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  1. I wouldn’t be so quick to concede the beneficent intentions, and certainly wouldn’t say there’s “no doubt” on that score.

    1. I think a judge feels almost obligated to write that; if he wants to keep his seat on the ABA’s rubber chicken circuit, that is.

  2. There is good and bad side to everything. If something is significant enough to be lauded, it is significant enough to be criticized. If everybody prattles on all the time about how great it is to be x race or y sex and z sexual orientation and how wonderful they are. Then it stands to reason someone should also be able to point out the pitfalls of said groups.

    People understand this well when you substitute white for x, male for y, and heterosexual for z. Now its just a matter of extending that equally to all the other groups.

  3. But they want to chill protected speech, that was the whole point of the exercise.

  4. In before RAK prattles on about clingers.

  5. I hope I’m not out of place to offer some constructive criticism on your blogging, Prof. Blackman.

    I’m not a academic or a law professor – I’m an attorney and a casual observer interested in many of the topics here on the VC. But I don’t have the luxury of being so deep into these issues that I’m going to be able to recognize every rule or statute or case you discuss.

    Could you, perhaps, (as your co-bloggers do) try to include a sentence or two summary as to what rule/statute/case actually does when you write a post like this? It will help jog the reader’s memory on the topic, or at least inform whether clicking through links etc. is of interest.

  6. I’m reminded of the “unanimity of the graveyard” paragraph in WV v. Barnette…

  7. In this case, the defendents called the plaintiff’s interpretation of the rule “strained and incredible” and said that they no intention of enforcing in a context where Plaintiff quoted. legsl cases containing incendiary language. Plaintiff’s main argument was that the law “arguably” covered such cases.

    I don’t think the overbreath doctrine is applicable or should overcome bedrock minimum standing requirements where the plaintiff’s sole claim of injury, here feeling chilled, is completely subjective,
    due solely to his personal beliefs about the law, and isn’t attributable to anything the defendants did or might do.

    In particular, because state authorities are the sole determiners of state law, I don’t think federal courts have authority to construe state law against a state when the interpretation of the state’s own law enforcement authorities says otherwise and is not unreasonable. If the state says if has no intention of enforcing the law and the law simply doesn’t cover what plaintiff claims it does, and its interpretation is perfectly reasonable, the plaintiff’s claim of being chilled lacks an objective factual basis and there is no proof of injury giving rise to Article III standing.

    Overbreadth should only apply where either the defendants admit it covers what the plaintiffs claims, or when the law is sufficiently clear that state authorities’ claims it doesn’t are unreasonable and not credible. When it’s merely arguable, especially when the plaintiff’s argument appears a stretch argument, there just isn’t enough evidence whatever subjective chill feelings plaintiff has are attributable to the defendants and that an objective likelihood of future enforcement exists to support Article III standing.

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