A panel of the U.S. Court of Appeals for the Second Circuit recently revived a case challenging a part of Connecticut’s professional conduct rules for lawyers. The court found that Connecticut-based lawyers Mario Cerame and Timothy Moynahan have standing to challenge a rule making it misconduct for lawyers to behave in a way that could reasonably be known as harassment.
Rule 8.4(7) of Connecticut’s lawyer conduct code was amended in June 2021 to state 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, ethnic disability, status as a veteran, age, sexual orientation, gender identity, gender expression or marital status in conduct related to the practice of law.”
Cerame’s and Moynahan’s challenge to the rule, alleging it violates the First and Fourteenth Amendments, dates back to November 2021 when they filed a complaint against Michael Bowler of the Connecticut Statewide Bar Counsel and chair of the Statewide Grievance Committee Matthew Berger in U.S. District Court.
The lawsuit alleged that, while Cerame and Moynahan would not knowingly violate the rule, they reasonably feared they might be sanctioned for past statements because of the way the rule is written.
“Neither Cerame nor Moynahan intends to make statements that, in his mind, would constitute discrimination or harassment on the basis of any of the 15 enumerated categories. But because Rule 8.4(7) applies so broadly, permits sanctions even against those who have not knowingly engaged in discrimination or harassment, and supplies only vague definitions of actionable speech, Cerame and Moynahan reasonably fear that they may be sanctioned for the sort of statements they have made in the past.” the lawsuit read. As a result, it claimed Cerame and Moynahan needed to chill their speech to avoid being sanctioned.
The rule, they argued, violates the First Amendment by imposing content-based and viewpoint-based discrimination against disfavored speech and that its vagueness violated the Fourteenth Amendment.
But the suit was dismissed in August 2022 by U.S. District Court Judge Alvin Thompson on the grounds that Cerame and Moynahan lacked standing to challenge the rule because they had not shown a “real and imminent fear” that their rights were being chilled.
Cerame and Moynahan then appealed the decision to the appeals court, which vacated the lower court’s decision on December 9.
The court wrote that it disagreed with the district’s court finding that Cerame and Moynahan lacked standing to bring a challenge to the rule because they did not have a “real and imminent fear” of it being enforced.
“In principal part, the district court failed to credit the Appellants’ well-pleaded allegations regarding the speech in which they wish to engage and assessed, not whether such speech is arguably proscribed, but whether it is in fact proscribed. This was error. Because Appellants have alleged facts plausibly suggesting that a credible threat of initiation of disciplinary proceedings pursuant to Rule 8.4(7) chills their speech, they have articulated an injury in fact that is sufficiently concrete and imminent,” the court wrote.
The appeals court remanded the case to the trial court to determine whether the case could proceed under the Eleventh Amendment, which places limitations on how states can be sued.
Cerame and Moynahan are represented in the case by the New Civil Liberties Alliance (NCLA), which praised the decision.
“This unanimous panel decision correctly applies controlling Supreme Court and Second Circuit precedents to reverse the district court’s error dismissing our Plaintiff/attorneys’ First Amendment challenge. The opinion lays out how the Connecticut rule will chill frank discussion of (and potentially subject attorneys to discipline for) speech on some of the most important and contentious issues of our time, including critical race theory, gender ideology, and religious expression. This is a major ruling in First Amendment standing law.” said Peggy Little, senior litigation counsel at NCLA.
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