Mario Cerame, et al. v. Michael Bowler, in his official capacity as Connecticut Statewide Bar Counsel, et al.

Washington, DC (February 27, 2023) – Mario Cerame and Tim Moynahan, two Connecticut-licensed attorneys, are challenging a recently adopted provision of the Connecticut Rules of Professional Conduct, which imposes a content- and viewpoint-based speech restriction. Rule 8.4(7) defines “professional misconduct” by a Connecticut attorney as including speech that the lawyer knows or reasonably should know “is harassment or discrimination on the basis of” any of 15 listed characteristics—among them race, sex, religion, disability, sexual orientation, and gender identity. Because Cerame and Moynahan reasonably fear misconduct charges, their speech has been chilled. Both men have felt compelled to censor their own speech to reduce the risk that they will face charges.

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed an opening brief in the U.S. Court of Appeals for the Second Circuit in Cerame v. Bowler opposing Rule 8.4(7), whose overly vague terms fail to provide sufficient guidance on what speech it prohibits. The Rule also violates Plantiffs’ First and Fourteenth Amendment rights. Because Cerame and Moynahan frequently speak frankly on controversial topics in their roles as members of the Connecticut bar, they fear being charged with violating the Rule. The reasonableness of their fear is well supported. For example, one of the two initial Rule 8.4(7) sponsors testified that the rule will serve as an important tool for sanctioning lawyers who engage in derogatory or demeaning speech, making clear sanctions are appropriate even if speech does no more than offend a listener’s sensibilities.

American Bar Association Model Rule 8.4(g) has proven to be highly controversial. A significant majority of States have declined to adopt it, after deeming it unconstitutional. The Idaho Supreme Court rejected adopting a version of Rule 8.4(g) after concluding that the proposed rule is: (1) a content- and viewpoint-based speech regulation that violates First Amendment speech rights; and is (2) unconstitutionally overbroad and vague. A federal district court has likewise permanently enjoined Pennsylvania’s version of 8.4(g). NCLA filed an amicus curiae brief in that case, Greenberg v. Lehocky, et al., opposing Pennsylvania officials’ attempt to revive the rule.

The Second Circuit must first decide whether the plaintiffs have “standing” to challenge Rule 8.4(7) even though they have not yet been charged with a violation. The Second Circuit has repeatedly held that pre-enforcement First Amendment challenges to speech restrictions face relaxed standing criteria because they risk chilling First-Amendment-protected speech. To establish injury-in-fact, plaintiffs need only allege facts suggesting “an actual and well-founded fear that the law will be enforced against” them, as Cerame and Moynahan have done.

NCLA released the following statements:

“Connecticut’s efforts to enforce a speech code for lawyers is blatantly unconstitutional. The government may not restrict speech based on its disagreement with the viewpoint being expressed. Rule 8.4(7) hangs like a sword of Damocles over the heads of lawyers who would dare to challenge orthodox views on controversial issues.”
— Rich Samp, Senior Litigation Counsel, NCLA

“Connecticut’s adoption of this rule is unwise, unnecessary—and unconstitutional. Existing rules of professional conduct already robustly prohibit discrimination by lawyers. This new speech code defies binding Supreme Court authority forbidding government penalties for expression of viewpoints. Such penalties chill constitutionally protected speech, which is all that is necessary for NCLA’s clients to challenge the rule in court.”
— Peggy Little, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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​Washington, DC (February 17, 2022) – Today, the New Civil Liberties Alliance filed a response to the Connecticut Statewide Bar Counsel and the Chair of the Statewide Grievance Committee’s Motion to Dismiss our lawsuit on behalf of two Connecticut-licensed attorneys who say their speech is being chilled. Mario Cerame and Timothy Moynahan have challenged Rule 8.4(7), a recently adopted provision of the Connecticut Rules of Professional Conduct for attorneys licensed in the State, which took effect on January 1, 2022.

The First Amendment forbids content-based restrictions on speech. The chilling effect created by Rule 8.4(7), an unconstitutionally vague speech restriction, is severe and should concern attorneys nationwide. The Rule expands the definition of “professional misconduct” to include verbal or physical conduct that the lawyer “reasonably should know” constitutes “harassment or discrimination” on the basis of any one of 15 categories—including race, sex, religion, disability, sexual orientation, and gender identity.

The Connecticut Statewide Bar Counsel and the Chair of the Statewide Grievance Committee argue in their Motion to Dismiss that the U.S. District Court for the District of Connecticut lacks jurisdiction to hear the claims. They also contend that Mr. Cerame and Mr. Moynahan lack standing to challenge the Rule because they will not suffer any injury unless and until they are charged with violating Rule 8.4(7). But the Plaintiffs’ facial challenge involves an enactment which, if invoked against them, could result in the loss of their licenses to practice law. Moreover, the Second Circuit has repeatedly held that chill allegations suffice to establish standing to raise First Amendment claims so long as the fear of enforcement action is actual and well founded.

NCLA’s original Complaint provides detailed factual allegations demonstrating that both attorneys’ speech has been chilled by Rule 8.4(7)’s enactment and that the chill arises from the well-founded fear that their speech could generate a misconduct complaint. In the past several years, scores of lawyers have been penalized for expressing divergent views. Mr. Cerame and Mr. Moynahan regularly speak out on issues of public concern as part of their practice of law—both in connection with legal proceedings and in forums unconnected to their representation of clients. While they do not intend to make statements that would constitute discrimination or harassment on the basis of any of the enumerated categories, they reasonably believe that those holding opposing points of view may well, on occasion, construe their criticisms as personally derogatory or demeaning.

NCLA released the following statements:

“Connecticut argues that any First Amendment challenge to its new speech code for lawyers should be deferred until the State decides to prosecute a lawyer for violating the code. But attorneys are being injured right now; they have no choice but to censor their own speech based on a well-founded fear that speaking too freely will lead to a misconduct charge. That injury suffices to give them the standing necessary to challenge the law right now.”
— Rich Samp, Senior Litigation Counsel, NCLA

“Connecticut’s existing rules of professional conduct already prohibit unlawful discrimination. This new rule, by allowing attorneys to be grieved for speech not meant to offend but to which others take offense, creates a here-and-now chill on lawyers’ speech for fear of cancellation-by-grievance.”
— Peggy Little, Senior Litigation Counsel, NCLA, and Connecticut-licensed attorney

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (November 10, 2021) – Connecticut has adopted an amendment to its Rules of Professional Сonduct for Connecticut-licensed lawyers that includes unconstitutional and impermissibly vague language governing speech by lawyers. The provision, Rule 8.4(7), applies broadly, permitting sanctions even against those who have not knowingly violated the Rule, and supplies only vague definitions of actionable speech on the basis of any one of 15 categories—among them race, sex, religion, disability, sexual orientation, and gender identity.

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a complaint today on behalf of two Connecticut-licensed attorneys seeking a declaration from the U.S. District Court for the District of Connecticut that the Rule violates the First Amendment and provisions of the Connecticut Constitution.

The First Amendment fully protects offensive, derogatory, or demeaning speech. “Derogatory” or “demeaning” speech is not subject to decreased constitutional protection simply because it is spoken by a lawyer in a setting “related to the practice of law.” The lack of clarity in the Rule deprives attorneys of the ability to discern what speech and conduct it proscribes, and thus they cannot know how to conform their speech in advance to the terms of the Rule. Because Rule 8.4(7) regulates speech, attorneys will be forced to “chill” their speech on certain subjects to provide extra assurance that they will not be the targets of disciplinary proceedings. The Rule also grants enforcement personnel too much discretion to decide what speech is sanctionable and what speech is not.

Nearly 20 states have either completely or largely rejected the adoption of similar American Bar Association proposed rules of professional conduct because they infringe free-speech rights. A federal court recently struck down Pennsylvania’s version of Rule 8.4(7), holding that the plaintiff was likely to succeed on his claim that the Rule amounted to viewpoint-based speech discrimination in violation of the First Amendment and also was unconstitutionally vague. Connecticut has ignored the experience of other states and plunged ahead to the detriment of attorneys licensed there. For these reasons, the District Court should strike down Connecticut’s Rule.

NCLA released the following statements:

“Connecticut’s Rule amounts to a speech code for lawyers. The Constitution State ought to encourage lawyers to speak out on controversial issues, not threaten to sanction those who dare to express unpopular views.”
— Rich Samp, Senior Litigation Counsel, NCLA

“Connecticut’s existing Rules of Professional Conduct already provide robust protection against discriminatory behavior and speech by lawyers. This proposed expansion abridges attorneys’ rights to express unpopular views, including core political speech. Connecticut has unwisely disregarded Supreme Court precedent that recognizes how such rules chill speech. Accordingly, NCLA seeks judicial restoration of lawyers’ First Amendment rights.”
— Peggy Little, Senior Litigation Counsel (and Connecticut-licensed attorney), NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document