The American Bar Association has a healthy practice of filing amicus curiae briefs in major cases. Requests are channeled through the Office of General Counsel to the Standing Committee on Amicus Curiae Briefs. The eight-member Standing Committee makes the final recommendation to the ABA Executive Committee on whether the organization should submit an amicus brief in a case.

According to the website, a brief will only be filed “when a position is asserted that is either consistent with a previously-adopted ABA policy, or a matter of compelling public interest or special significance to lawyers or the legal profession that the Board of Governors then adopts as an ABA policy.” The Standing Committee has filed seven amicus briefs this year. All of those briefs were for U.S. Supreme Court cases except one, a recent amicus brief in Greenberg v. Lehocky, a Third Circuit case related to Pennsylvania’s attempt to approve a version of the ABA’s model rule 8.4(g). 

ABA Rule 8.4 relates broadly to professional misconduct by lawyers. Rule 8.4(g) states that it is 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 race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

The amicus brief was primarily a defense of the ABA’s Rule 8.4(g). The ABA argued that both the ABA and Pennsylvania rules meet the compelling interest of “. . . protecting the integrity of the legal system and curtailing invidious discrimination, bias, and prejudice within the legal system while not infringing on lawyers’ (and their clients’) legitimate interests, constitutional rights, and professional obligations.” The ABA also argued that the rule was content-neutral and only focused on harassment and discrimination. The ABA stated that there is no concern that attorneys will begin to self-censor themselves out of fear of being cancelled because many states already have anti-discrimination/harassment rules of professional conduct, and there has not been a large increase in complaints.

Along those lines, the ABA specifically addressed the argument that Rule 8.4(g) would inhibit lawyers’ ability to speak freely in continuing legal education programs. The brief cited ABA Formal Opinion 493, which states that controversial statements at CLE programs would not be considered harassment or discrimination.

The text of the brief and the fact the ABA chose to weigh in on this lower court case (this is not rare but stands out in this particular year) speaks to its commitment to defending the rule. One cannot ignore the reality that the standard that state bar associations use to determine whether an attorney has engaged in misconduct under Rule 8.4(g) pales in comparison to the one enforced by the social media mobs. The intense polarization and speed of light dissemination of information or disinformation have already put lawyers in the crosshairs.

The full amicus curiae brief can be found here

Note: This post has been updated to correct the account of the ABA's procedures.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].