On August 29, 2023, the Third Circuit upheld Pennsylvania Rule of Professional Conduct 8.4(g) against a First Amendment pre-enforcement challenge by Attorney Zachary Greenberg. The court held Mr. Greenberg lacked standing to challenge Rule 8.4(g) because the rule did not prohibit him from using offensive words or expressing controversial ideas in his continuing legal education presentations.
Mr. Greenberg provides legal seminars on First Amendment rights, including opposition to hate speech bans and the right to express unpopular religious views. To do so, he quotes offensive language from judicial opinions and discusses controversial topics. He brought suit to prevent the enforcement of Rule 8.4(g), arguing his speech could be interpreted as harassment or discrimination under the rule’s vague language.
Rule 8.4(g), as amended during litigation and enjoined by the District Court, states that
“It is professional misconduct for a lawyer to . . . (g) in the practice of law, knowingly engage in conduct constituting harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. . . .”
Practice of law includes “continuing legal education seminars; bench bar conferences; and bar association activities where legal education credits are offered. The term “the practice of law” does not include speeches, communications, debates, presentations, or publications given or published outside the contexts described in (1)–(3).” Pa. R.P.C. 8.4(g), Cmt 3.
While some of Mr. Greenberg’s presentations are considered the “practice of law” under Rule 8.4(g), the Third Circuit determined the rule did not chill Mr. Greenberg’s advocacy of First Amendment jurisprudence in controversial areas.
The Pennsylvania Office of Disciplinary Counsel, which investigates disciplinary complaints, does not interpret Rule 8.4(g) as prohibiting “general discussions of case law or ‘controversial’ positions or ideas.” Greenberg v. Lehocky, No. 22-1733 at 17–19 (3d Cir. 2023) (quoting JA276 ¶ 7). Rather, the rule and accompanying commentary limit “harassment” and “discrimination” to conduct knowingly or intentionally targeting a specific person for denigration based on protected characteristics. Id. at 21 (citing R.P.C. 8(g), cmts 3–5).
Because his conduct was not covered by the rule, the Third Circuit determined Mr. Greenberg had not suffered an actual or imminent injury traceable to Rule 8.4(g) and therefore lacked standing.
“A likelihood of offending audience members is not a likelihood of disciplinary investigation or enforcement under Rule 8.4(g).”
Id. at 19.
The court distinguished Mr. Greenberg’s conduct at seminars, in which he engages in academic discussion and advocates “potentially controversial opinions,” from behavior that would directly target an audience member for discriminatory or harassing treatment. See id. at 22.
The Third Circuit reversed the Eastern District of Pennsylvania’s permanent injunction, allowing the rule to go into effect. Read the full opinion here.
