
Published January 13, 2025
On January 13, 2024, EPPC scholars Rachel N. Morrison and Eric Kniffin submitted a comment letter to the District of Columbia Court of Appeals opposing a proposed rule that would expose DC-barred attorneys to professional discipline for conduct (including speech) that the lawyer “reasonably should know is harassment or discrimination” on the basis of a protected class. The list of protected classes includes sex, sexual orientation, and gender identity.
The scholars argued that the proposed rule, modeled off a controversial model rule by the American Bar Association, raises constitutional concerns and would chill First Amendment-protected speech and religious exercise.
The scholars pointed out that the rule does not provide fair notice of what would constitute prohibited speech and conduct. For example, they stressed that it is unclear whether an attorney would violate the proposed rule by declining to use an individual’s preferred pronouns or by failing to provide certain benefits in an employee health care plan. Given this lack of clarity, the scholars argued that the proposed rule “does little to assuage concerns” that the proposal would infringe on freedoms of speech, religion, and association.
The scholars urged the Court to reject the proposed rule.
Others submitting comments opposing the rule include:
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s Administrative State Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.