Throwing Out the Baby: The ABA's Subversion of Lawyer First Amendment Rights

57 Pages Posted: 14 Dec 2020 Last revised: 10 Feb 2021

See all articles by Margaret Tarkington

Margaret Tarkington

Indiana University Robert H. McKinney School of Law

Date Written: 2019

Abstract

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

Suggested Citation

Tarkington, Margaret, Throwing Out the Baby: The ABA's Subversion of Lawyer First Amendment Rights (2019). Texas Review of Law & Politics, Vol. 24, No. 1, 2019, Indiana University Robert H. McKinney School of Law Research Paper No. 2020-18, Available at SSRN: https://ssrn.com/abstract=3739656

Margaret Tarkington (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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