Hello everyone and welcome to this Ethics Alert, which will discuss the recent U.S. District Judge for the District of Eastern Pennsylvania’s opinion and preliminary injunction prohibiting enforcement of a disciplinary rule broadly prohibiting discrimination by lawyers as violative of the free speech component of the First Amendment of the U.S. Constitution. The case is Greenburg v. Haggerty, U.S. District Court for the Eastern District of Pennsylvania, Case No. 20-3822. The opinion and injunction is here: https://www.courtlistener.com/recap/gov.uscourts.paed.574138/gov.uscourts.paed.574138.29.0.pdf from www.courtlistener.com).
The Pennsylvania Bar rule is a variation of an ABA Model Rule which was promulgated in 2016, and multiple states have adopted a version of the ABA rule with the broad anti-discrimination prohibitions. Pennsylvania Rule 8.4(g) states that a lawyer is prohibited from “in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status or socioeconomic status.”
The Comment to the Pennsylvania rule states: “conduct in the practice of law includes participation in activities that are required for a lawyer to practice law, including but not limited to continuing legal education seminars, bench bar conferences and bar association activities where legal education credits are offered.”
Philadelphia lawyer Zachary Greenberg filed the lawsuit and argued that the application of Rule 8.4(g) of the Pennsylvania Rules of Professional Conduct would chill his speech as a lawyer for a foundation defending the free speech rights of students. The lawyer stated that he mentions slurs, epithets and demeaning nicknames in presentations about the constitutional rights of people who do and say offensive things. The lawyer stated that he also speaks at events related to his work for the Foundation for Individual Rights in Education and his membership with the First Amendment Lawyers Association.
The judge found that the lawyer had standing to sue and that the Pennsylvania rule was likely unconstitutional because it discriminated based on an individual’s viewpoint in violation of the U.S. Constitution, and he issued a preliminary injunction blocking the rule from being enforced.
The opinion and injunction states:
There is no doubt that the government is acting with beneficent intentions. However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance. Yet the government cannot set its standard by legislating diplomatic speech because although it embarks upon a friendly, favorable tide, this tide sweeps us all along with the admonished, minority viewpoint into the massive currents of suppression and repression. Our limited constitutional Government was designed to protect the individual’s right to speak freely, including those individuals expressing words or ideas we abhor.
The irony cannot be missed that attorneys, those who are most educated and encouraged to engage in dialogues about our freedoms, are the very ones here who are forced to limit their words to those that do not “manifest bias or prejudice.” Pa.R.P.C. 8.4(g). This Rule represents the government restricting speech outside of the courtroom, outside of the context of a pending case, and even outside the much broader playing field of “administration of justice.” Even if Plaintiff makes a good faith attempt to restrict and self-censor, the Rule leaves Plaintiff with no guidance as to what is in bounds, and what is out, other than to advise Plaintiff to scour every nook and cranny of each ordinance, rule, and law in the Nation.
Bottom line: As I indicated, other states have adopted rules which expand conduct prejudicial to the administration to include broad prohibitions of discrimination, including Florida, although Florida Bar Rule 4-8.4(d) does not have the Pennsylvania Comment regarding the scope of activities included in the practice of law.
It will be interesting to see if the preliminary injunction is appealed and, if so, if it is upheld, and also whether other lawsuits are filed claiming that the rule is unconstitutional as violative of the First Amendment of the U.S. Constitution.
Stay safe and healthy and be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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