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Second Circuit is asked to strike down restrictions to Connecticut attorneys’ speech

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NCLA – the New Civil Liberties Alliance – says it has asked the US Court of Appeals for the Second Circuit to annul a new rule that the non-profit sees as “muzzling Connecticut attorneys.”

The NCLA, a civil rights group, got involved in the Cerame v. Bowler case by filing an opening brief with the Court of Appeals. The dispute stems from an update to the Connecticut Rules of Professional Conduct, which are challenged by Connecticut attorneys Mario Cerame and Tim Moynahan, on speech grounds.

We obtained a copy of the filing for you here.

Namely, Cerame and Moynahan believe that the recent new provisions are an example of content and viewpoint-based speech restriction, the NCLA explained, noting that one of the rules, 8.4(7), now deems as professional misconduct that speech which a lawyer is aware, or is reasonably expected to be aware represents “harassment or discrimination.”

These two categories are then based on any of 15 traits, including race, sex, religion, disability, sexual orientation, and gender identity.

The two attorneys say that with these rules in place, they reasonably fear facing misconduct accusations and have had to resort to self-censorship to protect themselves from possible professional trouble.

“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,” is how the NCLA put it and noted that this fear is reasonable.

As an example, the organization cited a Rule 8.4(7) sponsor who admitted that it should be used to punish lawyers whose speech is understood to be derogatory and demeaning – adding that the sponsor made it clear that “sanctions are appropriate even if speech does no more than offend a listener’s sensibilities.”

The NCLA brief, therefore, opposes Rule 8.4(7) as too vaguely worded in order to qualify for proper guidance, while at the same time violating Cerame and Moynahan’s First, and Fourteenth Amendments (which refers to several aspects related to US citizenship and the rights of citizens).

NCLA’s representatives also said in a statement that Connecticut’s attempts at enforcing “updated” ethics, i.e., speech code for lawyers and attorneys is blatantly “unconstitutional.”

“The government may not restrict speech based on its disagreement with the viewpoint being expressed,” the press release stressed, citing NCLA Senior Litigation Counsel Rich Samp.

Samp’s colleague Peggy Little agreed that Connecticut adopting the rule is “unwise, unnecessary – and unconstitutional,” noting that professional rules already in place are robust enough to effectively prevent discrimination by lawyers.

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