Two Connecticut lawyers have gone to federal court seeking to enjoin the enforcement of new Rule 8.4(7), which provides, inter alia, that "[i]t is professional misconduct for a lawyer to … [e]ngage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, pregnancy, religion, national origin, ethnicity, disability, status as a veteran, age, sexual orientation, gender identity, gender expression or marital status in conduct related to the practice of law." Anyone who thought that we had finally put this issue to bed is going to have to wait until we see whether our version of this model rule passes muster.

The rule, which was set to take effect on Jan. 1, 2022, is Connecticut's version of ABA Model Rule 8.4(g), which has been working its way from concept to law for well over 25 years. Many states had some sort of provision addressing the issue in their general standards, preamble, lawyers' oaths or rule commentary when the present iteration as a Rule of Professional Conduct was promulgated in 2017. Many states have now adopted it. Something like a half-dozen states, including Texas, Montana and Louisiana, have refused to adopt the rule, citing First Amendment issues. In Pennsylvania, a federal court enjoined enforcement of the rule and the state has not chosen to appeal that order while the merits are being litigated.

The matter has been robustly debated in the past at the Connecticut Bar Association, and the House vote to support the present iteration was about 3 to 1. The proponents marshaled significant support across many constituencies, with every committee or section of cognizance voting in support. Polling of the membership produced worrying evidence of conduct that would, at best, be called boorish, and which most folks would find both inappropriate and worthy of criticism or condemnation. Opponents trumpeted their rights to advance unwelcomed and unpopular opinions and positions as protected by the First and Fourteenth Amendments, as well as Connecticut's own constitution. A small minority, myself included, thought the rule a good idea but despaired of the lawyer discipline system as being the proper forum to adjudicate speech and thought. More about that later.