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Sept 14 (Reuters) – Don’t discriminate. Don’t harass.
As conduct rules for the practice of law, neither strikes me as especially onerous. “Creepy bigot” is not a good look for anyone, let alone an officer of the legal system.
But the admonishments are at the core of an escalating battle in Pennsylvania and beyond pitting bar rules against lawyers’ First Amendment rights.
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More than a dozen bar associations and legal ethics experts this week filed friend-of-the-court briefs with the 3rd U.S. Circuit Court of Appeals, where a fight is pending over a new rule that prohibits lawyers in Pennsylvania from “knowingly” engaging in conduct constituting harassment or discrimination in the practice of law.
Offering a full-throated defense of the rule, the amici argue that U.S. District Judge Chad Kenney in Philadelphia erred in finding it an unconstitutional infringement of free speech that amounted to “overzealous policing of attorneys.”
Not so, countered the American Bar Association in comments by Fox Rothschild partner Abraham Reich and ABA president Deborah Enix-Ross. “There is no constitutional right to engage in discrimination or harassment in the practice of law (or elsewhere),” they wrote. “This governmental interest – of preserving the integrity of the legal system by eliminating unlawful discrimination and harassment – is of the highest societal import.”
Whether such conduct occurs while representing a client, working in a law office or attending a CLE class, the rule underscores that it’s unacceptable and can result in a range of disciplinary actions up to disbarment.
The rule, based on one promulgated by the ABA in 2016, comes at a time of increased scrutiny on the legal profession for its lack of diversity and lagging advancement of women.
The showdown has the hallmarks of a potential U.S. Supreme Court fight.
The defendant — the Disciplinary Board of the Supreme Court of Pennsylvania – threw down the gauntlet when it hired Williams & Connolly Supreme Court and appellate practice head Lisa Blatt as lead counsel.
In a contract dated April 29, 2022, obtained by my Reuters colleague Mike Scarcella, the ethics board agreed to pay Williams & Connolly a flat fee of $200,000 for the 3rd Circuit appeal, adding that should the matter “involve any work in the U.S. Supreme Court, we will negotiate in good faith a fee arrangement.”
Blatt and the disciplinary board declined comment.
Adam Schulman, an attorney at the Hamilton Lincoln Law Institute who represents plaintiff Zachary Greenberg, told me he and his colleagues including Theodore Frank are fully committed to litigating the case to the highest court.
Heading into the appellate fight, Schulman praised the “well-reasoned” opinion by Kenney, who was appointed by former President Donald Trump and ascended to the bench in 2018.
Schulman’s client Greenberg is a senior program officer at the Foundation for Individual Rights and Expression, or FIRE. He’s written and spoken at CLE (and non-CLE) events on “hot-button legal issues” such as the constitutionality of hate speech regulation and due process protections for college students accused of sexual misconduct, according to the complaint.
Greenberg says he fears an offended audience member “will file a bar disciplinary complaint against him based on the content of his presentation” – causing him to refrain from speaking about controversial topics in violation of his First Amendment rights.
Kenney agreed, writing that the rule, which was adopted in 2020 and modified in 2021 in response to Greenberg’s initial complaint, “floats in the sea of whatever the majority finds offensive at the time.”
Blatt in a brief filed last week and the amici in theirs were withering in their assessment that the district court, as legal ethics experts Stephen and Barbara Gillers put it, “missed the mark at every turn” in understanding the rule.
The appellants argue persuasively that Greenberg lacks standing because no credible fear of prosecution exists. Indeed, Pennsylvania’s chief disciplinary counsel submitted a sworn statement that Greenberg’s planned conduct would not violate the rule.
Yes, an offended CLE audience member might file a frivolous complaint, but people file all manner of frivolous complaints against lawyers. The point is, Greenberg wouldn’t get in trouble for expressing his point of view, even if it’s not politically correct. That’s not harassment or discrimination intended to victimize an individual.
A handful of other states have adopted anti-harassment and discrimination rules much like Pennsylvania’s, all based on ABA Model Rule 8.4(g).
In Connecticut, a federal judge in August dismissed a similar First Amendment challenge for lack of standing.
If the 3rd Circuit does get to the merits, Blatt and the amici make a strong case that the rule does not run afoul of the First Amendment.
For one thing, lawyers already have their speech limited in areas such as legal advertising, civility and duty of candor to the court. Why should those limits be acceptable, but not a rule against harassment and discrimination?
An amicus brief by seven minority bar associations and legal groups led by the Hispanic Bar Association offers a long litany of examples of discrimination and harassment in the practice of law — everything from a male attorney calling opposing counsel “little lady” and “young girl” to a lawyer in an office email referring to a Black female judge as “Ghetto Hippopotamus.”
“Discrimination, harassment, and bias persist in our profession despite federal and state anti-discrimination laws,” wrote Hogan Lovells lawyer and chief human resources officer German Gomez, adding that Pennsylvania’s lawyer conduct rule “is integral to promoting diversity in the state’s legal profession, and eradicating conduct that is simply unacceptable.”
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