Throwing Out the Baby: The ABA's Subversion of Lawyer First Amendment Rights
57 Pages Posted: 14 Dec 2020 Last revised: 10 Feb 2021
Date Written: 2019
In March of 2018, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 480, addressing the obligations of lawyers to adhere to their duty of confidentiality when blogging or otherwise engaging in public commentary. The Opinion is written in response to Hunter v. Virginia State Bar, in which the Virginia Supreme Court held that the First Amendment protected an attorney from discipline for blogging about prior clients without consent. In Opinion 480, the ABA correctly opined that Hunter was wrongly decided and that the First Amendment does not forbid punishment of lawyers for unauthorized disclosure of client confidences. Lamentably, to reach that result, the ABA in Opinion 480 endorsed the subversion of lawyer First Amendment rights in general, asserting for itself, state bars, and judiciaries the power to regulate lawyers free of constitutional constraint. This power grab was unnecessary to protect the duty of confidentiality. The appropriate scope of attorney First Amendment rights protects both core duties owed to clients, such as confidentiality, and the essential First Amendment rights of lawyers in fulfilling their role in the system of justice through speech, association, and petitioning.
Keywords: lawyer ethics, first amendment, lawyer first amendment rights, confidentiality, ABA, Opinion 480, constitutional law, lawyer regulation, professional responsibility, duty of confidentiality
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