Today, I submitted a letter to the Disciplinary Board of the Supreme Court of Pennsylvania, which proposed adopting Rule 8.4(g) with certain modifications. I have submitted similar letters in the past to the relevant stage agencies in Louisiana, Nevada, Tennessee, Arizona, Maine, New Hampshire. (To date, only Vermont has adopted ABA Model Rule 8.4(g) in its entirety.) This most recent letter, however, provided my first opportunity to consider NIFLA v. Becerra.
Here is the relevant analysis:
. . . [T]hese concerns were highlighted by the Supreme Court’s recent decision in National Institute of Family and Life Advocates v. Becerra. 138 S.Ct. 2361 (June 26, 2018) (NIFLA). NIFLA considered whether California could require certain medical facilities (both licensed and unlicensed) to display messages concerning the availability of public funding for abortions.
In recent years, several circuit courts of appeals have strictly regulated speech associated with a regulated profession—that is “professional speech”—when “it involves personalized services and requires a professional license from the State.” Id. at 2375. However, such a regime, the Supreme Court explained, “gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” Id. The Court expressed caution with applying laxer scrutiny to so-called “professional speech,” as that standard “would cover a wide array of individuals—doctors, lawyers, nurses, physical therapists, truck drivers, bartenders, barbers, and many others.” Id. at 2375 (emphasis added). Stated simply, the government lacks an “unfettered power” to regulate the speech of “lawyers,” simply because they provide “personalize services” after receiving a “professional license.”
The Court identified two narrow exceptions to this rule, neither of which turned on the fact that professionals were speaking.” Id. at 2372. In the first circumstance, the Court has “applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech.’” Id. at 2372 (citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985)). This first condition is not relevant to the Proposed Amendments: Speech uttered “in the practice of law” does not “require professionals to disclose factual, noncontroversial information.”
Second, the Court noted that “States may regulate professional conduct, even though that conduct incidentally involves speech.” Id. at 2372. This standard is directly relevant to the proposed rule: the state can “regulate professional conduct . . . that . . . incidentally involves speech,” but it cannot regulate speech that incidentally involves professional conduct. The Proposed Amendment, by its own terms, straddles that line. It applies to both “conduct” “in the practice of law” and “words” (that is speech|) “in the practice of law.” If the Board struck the phrase “words,” and focused solely on “conduct” “in the practice of law,” the Proposed Rule would potentially fall within the second exception identified in NIFLA. But as drafted, the regulation of “words” would be subject to traditional strict scrutiny.
The NIFLA Court expressly referenced “lawyers” in its list of regulated professions. That was deliberate. I was in the Court while Justice Thomas announced that opinion. As he did so, Rule 8.4(g) shot to the forefront of my mind.
After NIFLA Rule 8.4.(g) now rests on shaky ground: the state can “regulate professional conduct . . . that . . . incidentally involves speech,” but it cannot regulate speech that incidentally involves professional conduct. The Pennsylvania Supreme Court should take notice of this new precedent, and reject the rule as proposed.