U.S. District Court Judge enjoins Pennsylvania from enforcing Bar rule with broad lawyer anti-discrimination prohibitions

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

ABA Formal Ethics Opinion 493 addresses Model Rule 8.4(g) prohibiting harassment and discrimination based upon, inter alia, race, sex, religion, national origin, and sexual orientation

Hello everyone and welcome to this Ethics Alert, which will discuss the (very) recent (July 15, 2020) American Bar Association Formal Opinion 493 titled “Model Rule 8.4(g): Purpose, Scope, and Application”, which provides guidance on application of the rule prohibiting harassment or discrimination “on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”  Formal Opinion 493 here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-493.pdf

The lengthy and expansive formal opinion provides guidance on the purpose, scope, and application of ABA Model Rule 8.4(g). The Rule specifically prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of the listed categories.

The formal opinion states that a potential violation of the rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline.

ABA Model Rule 8.4(g) is below:

It is professional misconduct for a lawyer to: (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The formal opinion also states that ABA Model Rule 8.4(g) applies to conduct and comments related to the practice of law that occur outside the representation of a client and even outside of the courtroom.  The rule is also not restricted to severe or pervasive conduct, which is the standard used in the employment context.  Further, the conduct that violates paragraph (g) will often be intentional and may be targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.

According to the formal opinion, the Model Rule does not prohibit a lawyer from freely expressing opinions and ideas on matters of public concern or limit a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not from the basis of a rule violation.  Further, the Model Rules are rules of reason, and whether the lawyer’s conduct violates the rules must be judged in the factual context and by using an objectively reasonable standard.

The formal opinion concludes:  “Besides being advocates and counselors, lawyers also serve a broader public role. Lawyers “should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.  Discriminatory and harassing conduct, when engaged in by lawyers in connection with the practice of law, engenders skepticism and distrust of those charged with ensuring justice and fairness. Enforcement of Rule 8.4(g) is therefore critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.“

Bottom line:  The ABA Model Rule 8.4(g), (which is not binding on lawyers) states that lawyers are not prohibited from freely expressing opinions and ideas; however, since lawyers serve a broader public role and are also officers of the court , they must be aware of their public (and potentially private comments) and not make comments which may be considered to be harassment or discrimination on the basis of the listed categories.  As always, lawyers should consult with their jurisdiction’s disciplinary rules for the language in those rules (if any).

Florida lawyers should be aware that Florida Bar Rule 4-8.4(d) has language prohibiting a lawyer’s conduct that is more restrictive and which also expands the categories of conduct which would be considered to be a potential violation of that rule.

Florida Bar Rule 4-8.4(d) is below:

A lawyer shall not: (d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.

Stay safe and be careful out there.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

Joseph Corsmeier about.me/corsmeierethicsblogs