A three-judge panel of the Second Circuit US Court of Appeals recently heard oral arguments in a case involving one of Connecticut’s professional rules for lawyers that several attorneys say violates their First Amendment rights. A lawyer for the plaintiffs in the case believes it may revive a legal challenge to the conduct rule, which was previously dismissed by a lower court.
At issue in the case is a June 2021 amendment to Connecticut’s professional rules for lawyers that stipulates what constitutes professional misconduct. Rule 8.4(7) states that it is misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, pregnancy, religion, national origin, ethnicity, disability, status as a veteran, age, sexual orientation, gender identity, gender expression or marital status in conduct related to the practice of law.”
In November 2021 Mario Cerame, an attorney with Hartford-based Brignole, Bush, and Lewis, and Timothy Moynahan, an attorney with Waterbury-based The Moynahan Law Firm, filed a complaint in Connecticut’s US District Court against Michael Bowler with the Connecticut Statewide Bar Counsel and Matthew Berger, the chair of the Statewide Grievance Committee.
The complaint alleged that the breadth of Rule 8.4(7) was a violation of their First and Fourteenth Amendment rights. It stated that while Cerame and Moynahan would not knowingly violate the rule, because it applied “so broadly,” permitted “sanctions even against those who have not knowingly engaged in discrimination or harassment,” and supplied “vague definitions of actionable speech,” they reasonably fear they might be sanctioned for past statements. They further argued that they must chill their speech to avoid being sanctioned.
The lawsuit was dismissed by U.S. District Judge Alvin Thompson in August 2022 on the grounds that they lacked standing to challenge the rule because they had not shown a “real and imminent fear” that their rights were being chilled.
An appeal to the suit’s dismissal was heard by a three-judge panel of the Second Circuit on Friday.
Based on oral arguments, Richard Samp believes there is a “reasonably good chance” the Second Circuit will reverse the dismissal of the suit and send it back to the district court for a trial on the case’s merits.
“The trial court did not reach the question of whether the Rule violates the First Amendment. Rather, it dismissed the suit based on lack of “standing,” finding that the two plaintiffs (both Connecticut lawyers) have not been injured by the Rule.” Samp noted in a statement provided to CII.
During oral arguments, Samp argued that the case easily met the standard required, which requires the plaintiffs to allege facts showing that they have an actual and well-founded fear of disciplinary action under Rule 8.4(7).
A judge asked Samp why his clients had a fear of being retaliated for speech that appeared to be protected by the First Amendment. Samp stated that while his clients are aware they are protected by the First Amendment, Connecticut fails to provide any detail on what is meant by the rule.
Samp added that he believes an added problem is that Connecticut intends to enforce the rule when appropriate, even though it is content-based and viewpoint-based, which means it has no Constitutional applications.
Michael Skold, Connecticut’s deputy solicitor general, represented Berger and Bowler during the oral arguments and claimed that the plaintiff’s case did not meet definitions of discrimination or harassment, which must be targeted at an individual or cause them harm, under the statute. Skold argued the types of speech the plaintiffs were concerned about, involving speaking publicly in their professional capacities, were not covered by the statute.
A recent ruling from the Third Circuit Court of Appeals that rejected a lawsuit challenging an anti-discrimination rule of professional conduct for lawyers in Pennsylvania also featured prominently during both sides of the oral argument, with debate focusing on the differences between the two cases.
Skold argued that one of the primary differences between the two rules was that Connecticut’s rule exempts First Amendment speech.
A judge noted that reasonable minds can disagree about what is protected by the First Amendment and this can lead to a threat of enforcement, even if it is not successful, which should be enough to give the plaintiffs standing. Skold disagreed with that characterization.
He also faced hypothetical questions about what types of speech might be considered expressive First Amendment protected speech and exempt from the rule and what types of speech might lead to sanctions under the rule.
In his rebuttal, Samp noted that there is nothing in the rule that notes expressive speech is exempted.
“Would it make sense maybe to at this point permit the case to go forward and then, during discovery when declarations are filed, there could be a reassessment of the statute based upon the disavowals, presumably by Connecticut, of when it would use the statute to prosecute?” Judge John Walker asked.
Samp said he thought that was an “excellent suggestion.”
Samp told CII that there “is no question” the rule is chilling speech. “[A]ny number of lawyers in Connecticut have been refraining from speaking on controversial topics for fear that they may be subjected to disciplinary proceedings under the Rule.” he said.
He also added that he is “quite confident” Rule 8.4(7) will be struck down if the courts make a decision on the case’s merits. “The Rule restricts speech based on content and viewpoint. Case law is clear that laws are presumptively unconstitutional if they impose content-based and viewpoint-based speech restrictions.” Samp said.
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