Attorneys Have Standing To Challenge Ethics Rule On Free Speech Grounds

The United States Court of Appeals for the Second Circuit reversed the dismissal of a claim on standing grounds brought by Connecticut attorneys challenging a disciplinary rule

Plaintiffs-Appellants Mario Cerame and Timothy Moynahan (together “Appellants”) are Connecticut-licensed lawyers and thus subject to the Connecticut Rules of Professional Conduct. They engage in speech related to their law practice that they assert may run afoul of the recently enacted Connecticut Rule of Professional Conduct 8.4(7) (“Rule 8.4(7)”). Cerame and Moynahan sued Defendants-Appellees (“Appellees”), officers of the Connecticut State Bar (the “Bar”), in their official capacities, pursuant to 42 U.S.C. § 1983, asserting First and Fourteenth Amendment challenges to Connecticut’s new rule. Appellants contend that Rule 8.4(7) imposes content-based and viewpoint-based restrictions on speech that cannot survive strict scrutiny and that the Rule is unconstitutionally vague.

Cerame and Moynahan appeal from a judgment dismissing their claims. The district court (Thompson, J.) determined that Appellants lack standing to assert a pre-enforcement challenge to Rule 8.4(7) because they do not possess a “real and imminent fear” of enforcement. Cerame v. Bowler, No. 3:21-cv-1502 (AWT), 2022 WL 3716422, at *8 (D. Conn. Aug. 29, 2022). We disagree. In principal part, the district court failed to credit 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 to confer Article III standing at the motion to dismiss stage. Accordingly, we vacate the district court’s ruling and remand for consideration of whether the Eleventh Amendment bars these claims.

Rule at issue

As adopted, Rule 8.4(7) provides as follows:

It is professional misconduct for a lawyer to . . .

(7) 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.  This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation, or to provide advice, assistance or advocacy consistent with these Rules. Conn. R. Pro. Conduct 8.4(7).

The Commentary to Rule 8.4 defines discrimination to “include[] harmful verbal or physical conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories.” Id. cmt. Harassment is defined to “include[] severe or pervasive derogatory or demeaning verbal or physical conduct.” Id.

Additionally

sanctions are not limited to those attorneys who “knowingly” engage in the prohibited verbal or physical conduct but extend to those attorneys who “reasonably should know” that their conduct is prohibited.8 Joint App’x 17, Compl. ¶ 47; Conn. R. Pro. Conduct 8.4(7). The Commentary provides, however, that “[a] lawyer’s conduct does not violate paragraph (7) when the conduct in question is protected under the first amendment to the United States Constitution or article first, § 4 of the Connecticut constitution.” Conn. R. Pro. Conduct 8.4 cmt.

Plaintiffs

Moynahan and Cerame are lawyers with Connecticut bar licenses who “regularly speak out” on issues, including the free exercise of religion and critical race theory, that implicate several of Rule 8.4(7)’s protected categories. Joint App’x  18, Compl. ¶ 51. They do so in “legal blogs, articles in legal publications, continuing legal education (CLE) events, legal seminars, press releases, and public speeches.” Id. Both allege that they speak “in forceful terms” on these occasions and that others expressing opposing points of view may, on occasion, construe their remarks “as personally derogatory or demeaning.” Joint App’x 18, Compl. ¶ 52. Indeed, Cerame and Moynahan allege that statements by supporters of Rule 8.4(7) indicate that these supporters “seek[] to target comments similar to those” that Moynahan and Cerame “routinely make.”Joint App’x 18, Compl. ¶ 53.

Standing

The district court...failed to credit Appellants’ well-pleaded allegations regarding the speech in which they wish to engage and erroneously assessed not whether such speech is arguably proscribed but whether it is in fact proscribed. In addition, the district court placed undue emphasis on both the lack of enforcement history of a new rule and the First Amendment carveout to Rule 8.4(7). Appellants have adequately alleged that they suffered an injury in fact, that this alleged injury was caused by Rule 8.4(7), and that the alleged injury is redressable by a ruling in their favor. Accordingly, Appellants have standing at this stage of the proceedings to proceed with their action.

Holding

At this stage in the proceedings, Appellants have alleged plausibly that they intend to engage in speech proscribed, at least arguably, by a recently enacted, focused regulation. This gives rise to a credible threat of enforcement. See Vitagliano, 71 F.4th at 139; Speech First, Inc. v. Fenves, 979 F.3d 319, 335 (5th Cir. 2020) (“‘[W]hen dealing with pre-enforcement challenges to recently enacted . . . statutes that facially restrict expressive activity by the class to which the plaintiff belongs, courts will assume a credible threat of prosecution in the absence of compelling contrary evidence.’” (quoting N.H. Right to Life PAC v. Gardner, 99 F.3d 8, 15 (1st Cir. 1996))). Appellants have thus adequately alleged an injury in fact for Article III standing. They have additionally pleaded causation and redressability because their injury is fairly traceable to Rule 8.4(7) and can be addressed by their requested relief. See Lujan, 504 U.S. at 560–61. Accordingly, Appellants have adequately pleaded that they have standing to bring this challenge to Rule 8.4(7).

For the foregoing reasons, we VACATE the district court’s judgment and REMAND to the district court to consider, in the first instance, whether the Eleventh Amendment bars plaintiffs’ claims.

Plaintiff Moynahan was a member of Providence College's NIT championship basketball team in 1961 and was a teammate of NBA legend Lenny Wilkins. (Mike Frisch)