Second Circuit reinstates complaint over attorney rule

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A federal appeals court has reinstated a complaint filed by two Connecticut attorneys challenging a Connecticut Bar Association rule.

Plaintiffs Mario Cerame and Timothy Moynahan brought the action on First Amendment and the Fourteenth Amendment grounds opposing Connecticut Rule of Professional Conduct 8.4(7), which considers it professional misconduct for a lawyer to engage in “conduct that the lawyer knows or reasonably should know is harassment or discrimination.”

A district court judge dismissed the complaint, holding that Cerame and Moynahan lack standing for a pre-enforcement challenge to the rule.

The U.S. Court of Appeals for the Second Circuit vacated the district court ruling.

“We conclude that Cerame and Moynahan have standing to seek pre-enforcement relief because they have pleaded sufficient facts to plausibly allege that they intend to engage in conduct that is arguably proscribed by Rule 8.4(7) and face a credible threat of enforcement,” the Second Circuit wrote.

Cerame and Moynahan “engage in speech related to their law practice that they assert may run afoul” of the recently enacted rule, according to the Second Circuit decision.

Cerame and Moynahan argued that the rule “imposes content-based and viewpoint-based restrictions on speech that cannot survive strict scrutiny and that the rule is unconstitutionally vague,” the court wrote.

The district court ruled that they lack standing to bring a pre-enforcement challenge to the rule because they do not possess a “real and imminent fear” of enforcement.

“We disagree … 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,” Judge Debra Ann Livingston wrote for the court.

“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 … standing at the motion to dismiss stage,” she wrote.

“Accordingly, we vacate the district court’s ruling and remand for consideration of whether the Eleventh Amendment bars these claims,” Livingston wrote.

In 2016, the ABA amended its existing Model Rule 8.4 to include a new rule intended to regulate harassment and discrimination by attorneys.

In February 2021, the Connecticut Bar’s Rules Committee recommended adoption of the new rule to the judges of the Connecticut Superior Court. In June 2021, the judges adopted Rule 8.4(7) at their annual meeting, and the rule became effective on Jan. 1, 2022.

Under the new rule: “It is professional 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, ethnicity, disability, status as a veteran, age, sexual orientation, gender identity, gender expression or marital status in conduct related to the practice of law.”

Moynahan and Cerame “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,” according to the decision.

“They do so in legal blogs, articles in legal publications, continuing legal education events, legal seminars, press releases, and public speeches,” according to the decision.

They speak “in forceful terms” and others expressing opposing views may construe their remarks as “personally derogatory or demeaning,” according to the decision.

They claim that statements made by supporters of the new rule indicate that they are targeting comments similar to those that Moynahan and Cerame routinely make.

They also claim in their complaint that there are “numerous examples of speech fully protected by the First Amendment that members of the Connecticut Bar will be reluctant to engage in, given the fear of a misconduct complaint,” according to the Second Circuit decision.

The Second Circuit ruled that Cerame and Moynahan “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,” Livingston wrote.

“Both the Supreme Court and this Court have made clear that in the type of pre-enforcement challenge presented here, the question is whether the contemplated conduct is arguably proscribed by the challenged provision, not whether the intended conduct is in fact proscribed,” Livingston wrote.

“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,” she wrote.

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