A new model rule that would limit the free speech of attorneys is falling flat. And for good reason: it’s unconstitutional.
At its 2016 Annual Convention, the American Bar Association (ABA) voted to add a new provision to its Model Rules of Professional Conduct which would subject lawyers to professional discipline should they engage in any speech or conduct that is harassing or discriminatory.
Despite the concerted efforts of the ABA to convince states to adopt the new model rule, no state has done so. And now, one state – South Carolina – has expressly rejected the rule.
The South Carolina Supreme Court announced last week that it is refusing to impose the rule on South Carolina’s attorneys. This comes on the heels of the South Carolina Attorney General concluding that “the Rule severely infringes upon Free Speech.”
The Texas Attorney General came to essentially the same conclusion several months earlier, finding that the new rule “would unconstitutionally restrict freedom of speech, free exercise of religion, and freedom of association for members of the State Bar” and was overbroad and vague.
Many commentators point out that the new model rule creates an unconstitutional speech code for lawyers. Others note that the new rule also:
- regulates attorney speech and conduct beyond the legitimate interests of the bar;
- conflicts with other professional rules; and
- could hurt clients by saddling them with attorneys who cannot zealously represent them.
On top of that, neither the ABA nor any others advocating in favor of the new rule can provide a legally coherent defense of the rule. When pressed, they resort to the “trust us” defense – claiming not that the rule is constitutional, but that attorneys can trust the state not to apply the rule in an unconstitutional manner.
No lawyer worth their salt would buy that. Fortunately for South Carolina’s attorneys, their Supreme Court didn’t buy it either.
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