Legal Challenge to Connecticut’s “Harassment” Ban for Attorneys Proceeds.

The Second Circuit Court of Appeals, in Cerame v. Slack, addressed the standing of plaintiffs challenging Connecticut bar rule 8.4(7), which prohibits lawyers from engaging in harassment or discrimination in conduct related to the practice of law. The court delved into the rule’s scope, noting its broad definition of "conduct related to the practice of law," encompassing various professional activities beyond client representation. The rule also defines "discrimination" and "harassment," including harmful verbal conduct manifesting bias or prejudice and severe or pervasive derogatory conduct, respectively. Significantly, the rule extends to conduct a lawyer "reasonably should know" is prohibited, expanding its reach beyond intentional acts. While a First Amendment carve-out exists, the court focused on whether the rule, as written, could chill protected speech.

The plaintiffs, concerned about the rule’s impact on their ability to speak freely on controversial topics, argued it chilled their speech. They cited examples of potentially protected speech, such as using pronouns inconsistent with a transgender individual’s preferred identity, using the term "gender preference" instead of "gender orientation," telling jokes deemed offensive by some, discussing theories attributing socioeconomic disparities to heritable group differences, and publishing satirical cartoons about religious figures. They asserted that despite lacking any intent to harass or discriminate, the rule’s ambiguity and broad scope created a chilling effect, forcing them to speak less openly. This apprehension, they argued, established their standing to challenge the rule.

The court found the plaintiffs had standing, addressing three prongs of the standing inquiry: an injury in fact, causation, and redressability. The "injury in fact" was the chilling effect on their speech. The court held that the plaintiffs’ desire to engage in potentially protected speech, coupled with their fear of disciplinary action, constituted a cognizable injury. The court noted that plaintiffs need only show their intended conduct was arguably, not necessarily actually, proscribed by the rule. The plaintiffs’ interpretation of the rule’s potential application to their speech needed to be reasonable, not the “best” interpretation. Given the rule’s breadth and ambiguity, particularly in the context of the First Amendment carve-out, the court deemed the plaintiffs’ concerns reasonable and sufficient to establish an injury.

Regarding causation and redressability, the court found that the chilling effect directly resulted from the rule’s existence and ambiguity, and a successful challenge to the rule could redress their injury by removing the chilling effect. The court rejected the defendants’ argument that the lack of prior enforcement under the previous version of the rule and the existing First Amendment carve-out negated a credible threat of enforcement. It emphasized that Rule 8.4(7) was a new, broader rule and the lack of prior enforcement history was irrelevant. The First Amendment carve-out, while intended to protect constitutional speech, did not eliminate the chilling effect because determining what speech is protected often requires nuanced analysis and could potentially expose speakers to disciplinary proceedings even if their speech is ultimately deemed protected.

The court underscored several aspects that contributed to the chilling effect. The broad language of Rule 8.4(7), coupled with the "reasonably should know" standard, creates uncertainty about what speech might be deemed prohibited. The lack of specific guidelines for applying the rule, beyond the general First Amendment carve-out, exacerbates this uncertainty. The possibility of complaints from any person, not just state officials, further amplifies the potential for chilling protected speech. The court compared the Connecticut rule to a similar Pennsylvania rule that requires a showing of knowing or intentional conduct, highlighting the broader scope of the Connecticut rule as further justification for the plaintiffs’ apprehension.

The court’s decision emphasizes the tension between regulating attorney conduct and protecting First Amendment rights. While acknowledging the state’s interest in ensuring ethical conduct within the legal profession, the court stressed the importance of safeguarding free speech rights. The broad and ambiguous nature of Rule 8.4(7), combined with its potential application to a wide range of professional activities and the lack of clear guidelines, created a chilling effect that justified the plaintiffs’ standing to challenge the rule. The decision sets the stage for further litigation on the merits of the First Amendment challenge, which will delve into the complex interplay between professional ethics and free expression in the legal profession.