In Greenberg v. Lehocky, No. 22-1733 (3d Cir. Aug. 29, 2023), the Third Circuit reverses a preliminary injunction against Pennsylvania’s recently adopted professional responsibility rule, PRPC 8.4(g), prohibiting discrimination and harassment in the practice of law. It holds that the plaintiff, a lawyer who lectures on free-speech issues, demonstrated no credible threat that he would be sanctioned for his speech activities.
“In 2014, to advance its goal of eliminating bias in the legal profession, the ABA began considering amending Model Rule 8.4 to ‘reflect the changes in law and practice since 1998’ . . . . The result two years later was the adoption of Model Rule 8.4(g), which added specific antiharassment and antidiscrimination provisions within the black letter of the rule,” respecting “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, and socioeconomic status.”
Pennsylvania adopted its version of the model rule in 2020. Pennsylvania Rule of Professional Conduct 8.4(g) provides that it is professional misconduct for a lawyer to, “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” eleven protected grounds.
The plaintiff, Greenberg, sued members of the Disciplinary Board of the Pennsylvania Supreme Court as well as the Board’s Chief and Deputy Chief Disciplinary Counsel. He regularly spoke at lawyer events about the First Amendment, often using epithets and other language in his lectures that might be deemed “biased, prejudiced, offensive, and potentially hateful.” He claimed that an audience member might file a disciplinary complaint against him and that the new rule chilled his free speech rights.
While the district court ruled for the plaintiff, granting summary judgment in his favor, the Third Circuit dismisses the case on standing grounds. The panel holds that the plaintiff did not suffer an actual or imminent injury that is fairly traceable to Rule 8.4(g). “His planned speech does not arguably violate the Rule, and he faces no credible threat of enforcement. Thus, it is not objectively reasonable for Greenberg to alter his speech in response to the Rule.”
The panel holds that Rule 8.4(g)’s state-of-mind requirements limit its sweep: the harassment or discrimination must be targeted at a person and must be knowing or intentional. “None of Greenberg’s planned speech could be interpreted as knowing harassment or discrimination directed at a person. Greenberg plans to verbalize epithets found in judicial opinions within an academic discussion, not direct them at an audience member. Greenberg’s general advocacy of potentially controversial positions does not denigrate any person or treat any person as inferior based on a protected characteristic. And the Rule reaches only lawyers who are practically certain their speech will cause harassment or discrimination, not those who inadvertently offend their audience.”
Moreover, there was no threat of enforcement against the plaintiff. “Defendants disavow enforcement for any of Greenberg’s planned conduct . . . . [and] because the Office of Disciplinary Counsel weeds out meritless complaints on its own, Greenberg faces only a speculative risk of discipline.”
Finally, the panel rejects standing based on chilled speech or self-censorship. “Considering Greenberg faces no imminent injury from disciplinary proceedings under Rule 30 8.4(g), his self-censorship based on Rule 8.4(g) is not objectively reasonable. Any reasonable chill he suffers cannot be fairly traced to Rule 8.4(g). Thus, he lacks standing to maintain this suit.”
Concurring, Judge Ambro urges Pennsylvania to “amend the Rule preemptively to eliminate many of the constitutional infirmities alleged by Greenberg in this case,” recommending the versions of Rule 8.4(g) adopted in Maine, New Hampshire, New York, and Connecticut as guidance.
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