NCLA challenges vague rule that unconstitutionally cools


Washington, DC, November 10, 2021 (GLOBE NEWSWIRE) – Connecticut has passed an amendment to its rules of professional conduct for lawyers licensed in Connecticut that includes unconstitutional and overly vague language governing the speech of lawyers. The provision, rule 8.4 (7), applies broadly, allowing penalties even against those who have not knowingly broken the rule, and provides only vague definitions of speech that can give rise to action on the basis of one of 15 categories, including race, gender, religion. , disability, sexual orientation and gender identity.

The New Civil Liberties Alliance, a non-partisan, non-profit civil rights group, today filed a lawsuit on behalf of two Connecticut-certified attorneys seeking a statement from the U.S. District Court for the District of Connecticut according to which rule violates the First Amendment and provisions of the Connecticut Constitution.

The First Amendment fully protects speech that is offensive, derogatory or demeaning. “Derogatory” or “humiliating” remarks are not subject to reduced constitutional protection simply because they are made by a lawyer in a context “linked to the practice of law”. The Rule’s lack of clarity deprives lawyers of the ability to discern what speech and what conduct it proscribes, and thus they cannot know how to conform their speech in advance to the terms of the Rule. Since Rule 8.4 (7) regulates speech, lawyers will be required to “cool” their speech on certain topics to provide additional assurance that they will not be the target of disciplinary proceedings. The Rule also gives enforcement personnel too much latitude to decide which speech is sanctionable and which speech is not.

Nearly 20 states have completely or largely rejected the adoption of similar rules of professional conduct proposed by the American Bar Association because they violate the right to free speech. A federal court recently struck down Pennsylvania’s version of rule 8.4 (7), finding that the plaintiff was likely to succeed on his claim that the rule amounted to point of view discrimination in violation of the First Amendment and was also unconstitutionally vague. Connecticut ignored the experience of other states and rushed to the detriment of licensed attorneys. For these reasons, the district court should overturn the Connecticut rule.

The NCLA has issued the following statements:

“The Connecticut rule amounts to a code of speech for lawyers. The constitutional state should encourage lawyers to speak out on controversial issues, not threaten to sanction those who dare to express unpopular views.
Rich Samp, Senior Legal Counsel, NCLA

“Connecticut’s existing rules of professional conduct already offer strong protection against discriminatory speech and behavior by lawyers. This proposed extension reduces the rights of lawyers to express unpopular views, including grassroots political discourse. Connecticut recklessly ignored the Supreme Court precedent that recognizes how such rules cool the talk. As a result, the NCLA is calling for judicial restoration of lawyers’ First Amendment rights.
Peggy Little, Senior Litigation Counsel (and Connecticut Certified Counsel), NCLA

For more information visit the case page here.


The NCLA is a non-partisan, non-profit civil rights group founded by eminent jurist Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s public interest litigation and other pro bono advocacy endeavors to tame the illegal power of state and federal agencies and foster a new civil liberties movement that will help restore basic human rights. Americans.



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