Judge blocks lawyers’ anti-bias rule, finds threat to free speech

(Reuters) – A federal judge in Pennsylvania on Thursday again blocked the state’s passage of an anti-harassment and discrimination professional rule for lawyers, backed by the American Bar Association, ruling it threatens the rights freedom of expression for lawyers.

In a 78-page ruling, U.S. District Judge Chad Kenney in Philadelphia said a version of an ABA rule passed last year by the Pennsylvania Supreme Court was overbroad and in conflict with the First Amendment.

This is the second time Kenney has reversed Pennsylvania’s adoption of Rule 8.4(g), which states that attorneys must not “knowingly engage in conduct that constitutes harassment or discrimination” on multiple grounds, including race, gender and religion.

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The rule was first challenged in August 2020 by Zachary Greenberg, a program manager for the nonprofit Foundation for Individual Rights in Education. Greenberg is represented by the Hamilton Lincoln Law Institute.

“We hope this will deter other states from trying to unconstitutionally chill lawyers’ speech,” Ted Frank, director of litigation at the institute, said in a statement.

Greenberg claimed he was at risk of violating the discrimination rule because of the presentations he gives on offensive and derogatory language, including racial and homophobic slurs.

Kenney blocked an earlier version of the rule in December 2020, saying it “promotes government-preferred viewpoint monologue and creates a pathway for its hand-picked arbitrators to determine, without any concrete standards, who and what offends”.

The Pennsylvania Supreme Court’s disciplinary board and its prosecuting arm, the Office of Disciplinary Counsel, appealed Kenney’s decision to the 3rd U.S. Circuit Court of Appeals, but dropped their appeal in March 2021.

In July, the state Supreme Court changed the rule, but Greenberg said he should still censor himself lest he offend anyone who might file a lawsuit against him.

Kenney argued that a lawyer risked being disciplined for a speech given outside the context of a courtroom. Because the rule prohibits discrimination on socioeconomic status, “a lawyer showing dislike of another person wearing cheap suits or worn-out shoes at a bar conference could be subject to disciplinary action” , wrote Kenney.

A spokesperson for the administrative branch of the Pennsylvania Supreme Court declined to comment.

The case is Greenberg v. Haggerty, et al, US District Court for the Eastern District of Pennsylvania, No. 20-cv-03822.

For Greenberg: Adam Schulman of the Hamilton Lincoln Law Institute

For the Defendants: Michael Daley and Megan L. Davis of the Pennsylvania Courts Administrative Office

Read more:

Pennsylvania lawyer sues to end resurrected anti-discrimination rule

Pa. drops appeal over attorney conduct rule that has angered free speech activists

Pennsylvania turns to 3rd Circuit in ABA-backed pro rule fight

Judge blocks anti-harassment rule for Pennsylvania lawyers, citing its ‘consistent threat’ to free speech

Pennsylvania lawsuit sets up fight against anti-harassment rule for attorneys

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David Thomas

David Thomas reports on legal activity, including law firm strategy, hiring, mergers and litigation. He is based in Chicago. He can be reached at [email protected] and on Twitter @DaveThomas5150.

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