Publication Date
Winter 1-1-2018
Document Type
Article
Organizational Units
Sturm College of Law
Keywords
Bar associations, Discrimination, Freedom of speech, Lawyers, Legal ethics, Sanctions, Sexual harassment, Social aspects
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 backdrop of lawyer regulation and concludes with a few thoughts about the values most central to professional identity.
Publication Statement
Copyright held by the author. User is responsible for all copyright compliance.
Originally published as
Rebecca Aviel, Rule 8.4 and the First Amendment: Distinguishing Between Discrimination and Free Speech, 31 Geo. J. Legal Ethics 31 (2018).
Recommended Citation
Rebecca Aviel, Rule 8.4 and the First Amendment: Distinguishing Between Discrimination and Free Speech, 31 Geo. J. Legal Ethics 31 (2018).
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