The American Bar Association’s Model Rule 8.4(g)

In 2016, the American Bar Association (ABA) adopted a recommendation for Model Rule 8.4(g), which defines “professional misconduct” to include:

“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.”

This provision encompasses verbal “conduct” and has drawn criticism for its breadth. Legal scholars, such as UCLA law professor Eugene Volokh, have contended that the rule’s wide and vague scope “is broad and vague enough to potentially apply to a wide range of political speech, and thus violate the First Amendment.” Critics argue that the rule could expose lawyers to charges of professional misconduct for expressing or sharing opinions, humor, or graphics that they “should have known would make a listener uncomfortable” based on membership in one of the protected classes.

The phrase “related to the practice of law” has been interpreted broadly, potentially covering a vast array of activities beyond direct client representation. These activities, as detailed in April comments on the rule, include:

• Presenting Continuing Legal Education (CLE) courses.
• Participating in panel discussions on controversial political, religious, and social viewpoints.
• Teaching law school classes as faculty, adjunct faculty, or guest lecturers.
• Authoring law review articles, op-eds, blog posts, or tweets.
• Giving media interviews.
• Serving on the board of a religious congregation, school, or college.
• Providing pro bono legal advice to nonprofits or serving at legal aid clinics.
• Lobbying, testifying before a legislative body, or writing comment letters to government agencies.
• Serving on the board of a fraternity or sorority, volunteering for political parties, or advocating through social justice organizations.

While some existing state codes prohibit bias and harassment, they are generally drafted with more limited applicability. In Maine, for instance, prior disciplinary rules required missteps to have been committed knowingly, in the course of representing a client, and in a manner prejudicial to the administration of justice—three criteria that served as safeguards against overbreadth.

Since its proposal, Model Rule 8.4(g) has encountered significant resistance across the United States. According to October comments, “seven states have rejected the rule: Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee have rejected the proposal.” Furthermore, “The Attorneys General of four states have concluded that adopting the rule would violate the First Amendment: Louisiana, South Carolina, Tennessee, and Texas.” Conversely, only Vermont has adopted the model rule in its entirety.

Maine’s highest court has since adopted a version of the rule, though it incorporates several narrowing amendments. Specifically, the Maine version:

• Defines “the practice of law” in a less expansive manner, excluding some purely social activities.
• Removes “socioeconomic status” and “marital status” from the list of protected classes.
• Attempts to define the specific types of speech deemed to constitute bias or harassment.

Despite these changes, critics still find the definition’s contours unclear and argue that the rule remains significantly broader than the standards approved by the U.S. Supreme Court regarding harassment law and speech liability in workplace and university settings.

The Situation in Ontario, Canada

Parallel debates have occurred in Canada, where the Law Society of Ontario (LSO) previously enacted rules that went further than the ABA’s proposal. The LSO required all lawyers to draft a mandatory personal Statement of Principles (SOP) avowing a dedication to diversity, equality, and inclusion. The LSO Convocation rejected a proposal “to create an exemption to the new mandatory Statement of Principles for persons who believe the requirement violates their freedom of conscience.”

However, this mandatory requirement provoked substantial opposition from the LSO membership. A campaign led by attorney Lisa Bildy and others successfully elected 22 of its supporters to the 40 lawyer seats among the governing benchers (governors) at the Law Society. Though these newly elected officials do not hold a majority due to the other seats reserved for lay benchers and paralegals, the election results conveyed an unambiguous message regarding the membership’s objection to the SOP.

In light of this change and a determined campaign of opposition, the Law Society of Ontario’s governing Convocation is scheduled to meet on June 27 to begin considering whether to repeal, render optional, modify, or retain the Statement of Principles requirements. The outcome of the LSO meeting and subsequent actions deserve close scrutiny by those concerned about the rise of speech codes and mandatory expressive requirements within the legal and other professions.

The post Navigating the Contested Terrain: Attorney Speech Codes in the United States and Canada first appeared on Human And Legal.

The ordinance in question imposes a significant restriction on pistol permit holders within the city. It prohibits them from transporting their licensed firearms beyond the five boroughs of New York City. The rule has been noted by some commentators as counterintuitive, suggesting that a municipality generally seeking to limit the presence of firearms might logically favor rules allowing licensed owners to move their weapons elsewhere.

The Court’s decision in this case will address the constitutionality of this restrictive transport rule, potentially impacting the rights of licensed firearm owners and the regulatory authority of local governments concerning the Second Amendment.

[Cato at Liberty blog post by Ilya Shapiro and Matthew Larosiere, and related Cato Daily Podcast with Larosiere and Caleb Brown]

The post The Supreme Court to Review NYC Gun Transport Restriction first appeared on Human And Legal.

The controversy centered on reports that social workers in the state’s Cabinet for Health and Family Services (CHFS) were allegedly utilizing blank removal orders bearing pre-signed judicial signatures. This practice, according to multiple attorneys and judges, circumvented the necessary legal procedure requiring proper court scrutiny and approval for the drastic measure of removing a child from their home.

Rationale and Due Process Implications

The CHFS reportedly rationalized the use of these “blank” orders as a measure to expedite child removals during non-traditional hours, specifically evenings and weekends, when family court judges are not regularly sitting. However, on-call judges are statutorily required to be available during these times precisely for the purpose of reviewing emergency removal orders.

The practice raised grave concerns regarding the due process rights of families. By relying on pre-signed orders, a judge had not, and potentially would not, conduct an individualized review of the underlying allegations. This review typically involves questioning the presented evidence to ensure the removal is warranted. Furthermore, the use of orders signed in advance permitted the particulars and allegations to be filled in after the child had been taken into custody. This subsequent completion of the document raised the possibility that the allegations could be tailored to household conditions discovered during the seizure rather than based on pre-existing evidence.

Misuse of Emergency Orders

Beyond the systemic issue of pre-signed forms, additional allegations focused on the alleged misuse of these emergency custody orders. Reports indicated that CHFS workers may have contacted judges after hours to report the need to remove a single child, but subsequently used multiple copies of the pre-signed emergency custody orders to take more than one juvenile from the home.

Following an investigation by local broadcaster WDRB, the practice of using pre-signed orders has reportedly ended. This incident underscores the necessity of strict adherence to legal procedure and judicial oversight in all actions involving the seizure of children, ensuring that the fundamental due process rights of families are protected. [Jason Riley, WDRB via Robby Soave, Reason]

The post Judicial Scrutiny and Emergency Child Removals: Concerns in Kentucky first appeared on Human And Legal.

Evolution of the Cyber-Bullying Law

The new law represents a substantial departure from Maryland’s earlier 2013 statute. According to reports by Bruce DePuyt at Maryland Matters, State Senate Judiciary Chair Bobby Zirkin (D-Baltimore County) noted that the original law proved too restrictive in the age of social media. The 2013 legislation required abusive comments to be sent directly to the individual and mandated a pattern of conduct before prosecution could commence.

Senator Zirkin stated that “a single significant act can land you in trouble” under the revised law. The updated legislation is described as going farther than any other similar law in the United States and significantly beyond its Maryland predecessor.

Legal and Constitutional Scrutiny

The expanded reach of Grace’s Law 2.0 has drawn strong opposition from civil liberties organizations, which cite concerns about its impact on First Amendment rights.

The ACLU of Maryland publicly criticized the bill, highlighting the dangerous potential for overreach in regulating speech. Toni Holness, the group’s public policy director, raised specific objections in February regarding the bill’s lack of clear definitions for crucial terms.

• The legislation fails to adequately define what constitutes a “true threat.”
• Other key terms left undefined include encourage, provoke, sexual information, intimidating, and tormenting.

Ms. Holness warned that this imprecision leads to “way too much prosecutorial discretion” in the application of the law. Earlier commentary on the bill noted a suggestion from Senator Zirkin that the Court of Appeals, rather than the legislature, would ultimately be tasked with sorting out the law’s constitutionality.

The move to strengthen the law also comes amidst reports that Senator Zirkin may seek to engage U.S. Rep. Jamie Raskin (D-Md.) regarding the introduction of similar federal legislation.

Related Case Example

The debate over the boundaries of speech regulation is concurrently illustrated by cases in other jurisdictions. An Ohio student, Mehros Nassersharifi, faced arrest and prospective expulsion from Perrysburg High School following the creation of a Twitter account where he posted malicious comments about female classmates. While the school’s potential expulsion of the 18-year-old raises separate administrative questions, his arrest on charges of telecommunications harassment has been argued to potentially overstep the bounds of the First Amendment (NBC24, Hans Bader, Eugene Volokh). This incident underscores the broader national tension between curbing online abuse and safeguarding fundamental free speech rights.

The post Maryland’s Enhanced “Grace’s Law 2.0” Cyber-Bullying Legislation: Legal Concerns and Free Speech Implications first appeared on Human And Legal.

The Challenge of Allegations and Public Discourse

A notable example of this public scrutiny occurred during the Jussie Smollett episode, where journalists faced criticism for raising doubts about the improbable elements of the actor’s initial account. At the time, the head of one progressive organization reportedly asserted that Smollett had been “doubly victimized as the subject of speculation by the media industry and broader culture,” even criticizing the cautious use of words like “allegedly” in media reports.

After Smollett’s narrative was discredited, some advocates countered that, regardless of the outcome in this specific instance, data unequivocally demonstrates a sharp increase in hate crimes, and that reports of such crimes are rarely proven false. This raises the critical question of the reliability and certainty of the available data.

Interpreting FBI Statistics

A frequently cited claim regarding the prevalence of hate crimes stems from official statistics. For instance, Senator Kamala Harris (D-Calif.) once quoted FBI figures that “revealed a 17 percent increase in the number of hate crimes in America.”

These FBI figures, however, are subject to considerable challenges in their interpretation. Variations in reporting methods among jurisdictions can drastically skew the total count. For example, in 2017, the city of Eugene, Oregon, reported 72 hate crimes to the FBI—a number nearly equivalent to the rest of the state combined. According to the Daily Emerald, this discrepancy was attributed to “the city’s active approach. … The city carefully catalogs reported instances … and even classifies certain crimes — such as vandalism — as a hate crime that other cities would classify in a different way.”

Reports suggest this active approach, which may include officers logging an observed graffiti epithet as a hate incident sua sponte (on their own initiative) rather than waiting for a public complaint, is being adopted by other cities. Should such methods become more widespread in the future, the FBI count of reported hate incidents is certain to increase. Yet, this upward trend would not, with any certainty, establish a genuine rise in the actual incidence of hate crimes.

The Predisposition to Believe

An inherent human predisposition exists to readily accept findings that appear to underscore the prevalence of significant injustice. This impulse to believe can also affect academic scholarship.

A case in point involves a 2014 study, which has since been retracted, that purported to find that “structural stigma” in society shortened the lives of LGBT persons by a remarkable twelve years. The authors later acknowledged that an inadvertent coding error had occurred in the data analysis. Once the error was corrected, no statistically significant correlation between “structural stigma” and mortality was found. Despite the inherent implausibility of the original conclusion, the paper had already achieved “highly cited paper” status and continued to accumulate citations even following its formal retraction.

The post Flaws in the Federal Hate Crime Count: Examining Data Reliability and Legal Concerns first appeared on Human And Legal.

The Legal Question at Hand

The core legal issue in Air and Liquid Systems v. DeVries is the scope of a manufacturer’s duty to warn when its product requires the addition of a component (like asbestos insulation) supplied by a third party to function effectively. The petitioners argue that imposing “bare-metal” liability—liability for a product that was sold without the hazardous material—is an unwarranted expansion of traditional products liability law. Conversely, respondents argue that when a manufacturer’s product is specifically designed to function with an essential component containing asbestos, and the manufacturer knows or should know of the danger, a duty to warn arises.

Commentary and Coverage

This highly anticipated case has generated substantial discussion across the legal community. For a deeper analysis of the underlying legal arguments, one source for discussion is a piece published by Reason that addresses the case.

Further reporting on the oral argument before the Supreme Court is available from multiple sources, including coverage from Brandi Buchman of Courthouse News and pre- and post-argument analysis provided by Ronald Mann for SCOTUSBlog. Additional legal commentary and resources include contributions from Robert H. Wright of the Washington Legal Foundation and a Federalist Society link roundup and video featuring Justin Torres of King and Spalding.

This case’s outcome is expected to significantly impact the landscape of asbestos litigation and the scope of products liability for manufacturers across various industries.

The post The Supreme Court Considers “Bare-Metal” Liability in Asbestos Litigation first appeared on Human And Legal.

Grounds for the Decision

In her ruling, Judge Suzanne Parisien concluded that the ordinance was unconstitutional on three distinct grounds: the violation of fundamental property rights, the infringement of due process rights, and the contravention of the First Amendment.

Violation of Property Rights

The court determined that the law violated a landlord’s fundamental property rights by effectively stripping them of the ability to “freely dispose of property” and choose their own tenants. The ruling characterized the ability to select tenants as a “fundamental attribute of property ownership.” By restricting this choice, the ordinance was deemed to exceed the permissible scope of government regulation concerning private property.

Violation of Due Process Rights

Judge Parisien also concluded that the ordinance violated landlords’ due process rights under the Fourteenth Amendment. The court found that the law imposed its mandatory renting rule without necessary limitations. The judge stated, “A law that undertakes to abolish or limit the exercise of rights beyond what is necessary to provide for the public welfare cannot be included in the lawful police power of the government.” In the court’s view, the ordinance went too far beyond what could be justified under the government’s police power to promote public welfare.

Violation of the First Amendment

Finally, the court found the law to be in violation of the First Amendment’s protection of free speech. This conclusion was based on the fact that the ordinance broadly banned certain types of advertising by property owners without requiring an individualized suspicion of discriminatory intent.

The invalidation of this “first-in-time” ordinance has significant implications for both landlords and tenants in Seattle and serves as a notable example of a municipality’s efforts to regulate rental practices running afoul of established constitutional protections.

Citations/Sources: [David Kroman, Crosscut, earlier]; Ilya Somin.

The post Washington Court Invalidates Seattle’s “First-in-Time” Tenant Ordinance first appeared on Human And Legal.

Judicial Referral for Investigation

U.S. District Judge Jon Tigar of the Northern District of California has requested that federal prosecutors investigate nearly 6,000 potentially bogus claims submitted as part of a $5.3 million settlement reached with various app makers, including Twitter, Instagram, and Yelp. The judge’s request stems from numerous irregularities observed in the submission process for the claims.

Irregularities in Claim Submissions

The investigation was triggered by identifying 5,924 claims that exhibited characteristics suggesting they were not submitted by legitimate class members. Specifically, none of the identified claims utilized the unique claim numbers that were provided in the email notices distributed to potential class members.

Furthermore, anomalies related to claimant identification and location were noted. A substantial number of claims were submitted from identical IP addresses despite listing different physical mailing addresses. There were also instances of repetitive street addresses and the use of unlikely or repetitive names of individuals in the claims. The judge highlighted that at least one name used belonged to a legitimate member of the class, but this name was subsequently used by others to file additional, questionable claims.

Context and Implications

Reports suggest that the total monetary value of these questionable claims approaches $400,000. The appearance of such potentially automated or coordinated fraudulent activity has raised concerns within the legal community regarding the integrity of the class action settlement process. As noted by legal commentators, the phenomenon of “class action claim bots” appears to be an emerging challenge in settlement administration. (See, e.g., Ross Todd, The Recorder; Alison Frankel, Reuters, “The class action claim bots are coming! (Actually, they’re already here)”; ABA Journal).

The post Investigation into Alleged Fraudulent Claims in Class Action Settlement first appeared on Human And Legal.

In furtherance of the challenge, PLF recently filed its opening brief, asking the Court to invalidate the law on the grounds that it constitutes a “brazen violation of fundamental rights.” This litigation highlights a core conflict between government regulation designed to address perceived societal biases and the property rights of landlords.

The rationale underpinning Seattle’s ordinance, as articulated by proponents, is that it serves as a mechanism to curb the operation of “unconscious” bias in the tenant selection process. However, this governmental approach has drawn significant criticism. As articulated by legal scholar Ilya Somin, the Seattle law exemplifies a key risk associated with utilizing government regulation to counteract the subconscious cognitive biases prevalent in the private sector. Somin notes that there is “little, if any reason to believe that voters and politicians are less biased than the people whose behavior they are trying to regulate. Much of the time, they are likely to be more so.”

The Yim v. City of Seattle case thus represents a crucial legal confrontation regarding the scope of a municipality’s authority to infringe upon a landlord’s right to property and contract in the name of discrimination prevention.

The post Constitutional Challenge to Seattle’s “First-in-Time” Tenant Selection Rule first appeared on Human And Legal.

This legal framework recently became the subject of a high-profile dispute involving Summit Church in Springfield, a suburb of Washington, D.C. A mother and her legal counsel contend that the church violated state law when its officials requested that she use a private room, rather than the main sanctuary or “pews,” to feed her infant during a worship service.

The case raises complex questions regarding the balance between the state’s mandate protecting a woman’s right to breastfeed in public and a religious institution’s right to establish rules governing the conduct and atmosphere of its services and facilities. While many view the societal shift toward accepting public breastfeeding as non-shocking, the core legal and constitutional tension lies in the extent to which government regulation can dictate the internal rules of a church during worship. The enforcement of such a law against a religious body, absent a clear exemption, prompts a significant discussion about the intersection of public accommodation laws, religious liberty, and the scope of permissible state action.

The post The Right to Breastfeed in Public: Virginia Law and Religious Institutions first appeared on Human And Legal.