Outspoken lawyers may challenge Connecticut's disciplinary rules under the First Amendment

The Court of Appeals holds that two lawyers have standing to challenge the professional licensing rules guiding the legal profession. The Court finds that the rules that make it 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 15 protected activities "in the practice of law." The plaintiffs are conservative lawyers who speak out on political and religious issues "on forceful terms" and fear that the Connecticut disciplinary rules might be broad enough to result in their discipline.

The case is Cerame v. Slack, issued on December 9. The trial court rejected plaintiff's First Amendment claims, holding that they lacked standing to challenge the disciplinary rules because the adverse enforcement against them is speculative. The Court of Appeals (Livingston, Walker and Sullivan) finds that plaintiff's concerns are not speculative and that they have pled a real and substantial risk that the rules may be held against them because of their provocative and public speech.

First Amendment cases offer relaxed standing rules. The idea is that people will refrain from speaking to avoid government discipline or punishment. You can bring these cases even before you articulate the speech if you can plausibly assert that you speech has been chilled by the disciplinary or other rules.

Plaintiffs have standing to bring this case because they assert in the Complaint that they speak out at CLE's, legal seminars, press releases and public speech on social and political matters "and that others expressing opposing points of view may, on occasion, construe their remarks 'as personally derogatory or demeaning.'" The Court of Appeals notes that one plaintiff, Moynahan, has spoken at public forums, including law schools, in opposition to curricula based on critical race theory, "teaching students that systemic racism is endemic, that American culture is based on white privilege and supremacy, and that 'diversity' and 'equity' are cultural imperatives." While plaintiffs assert they do not intend to harass or discriminate against anyone, they fear that the Connecticut disciplinary rules will be used against them for speech like this. Since their speech may be arguably prohibited under the Connecticut disciplinary rules, they may bring this case.