Monday, September 10, 2018
Aviel on Rule 8.4(g) and the First Amendment: Distinguishing Between Discrimination and Free Speech @SturmCOL
Rebecca Aviel, University of Denver College of Law, is publishing Rule 8.4(g) and the First Amendment: Distinguishing between Discrimination and Free Speech in volume 31 of the Georgetown Journal of Legal Ethics (2018). Here is the abstract.
The ABA’s recent adoption of Model Rule 8.4(g), making it sanctionable for lawyers to engage in discrimination or harassment, has garnered a great deal of attention, much of it focused on whether the rule violates an attorney’s right to free speech. This article attempts to bring clarity to the discussion. It emphasizes the significance of claiming, as some have done, that the rule is facially invalid because it is overbroad, and then engages in the close textual analysis necessary to evaluate claims of overbreadth. This analysis yields important insight about how the rule might be revised to better reflect the crucial distinction between discrimination and harassment on the one hand and the expression of controversial viewpoints on the other. It then explains why the rule’s coverage of all conduct “related to the practice of law” is neither unprecedented nor particularly troubling against the existing back-drop of lawyer regulation and concludes with a few thoughts about the values most central to professional identity.
Download the article from SSRN at the link.