The Plaintiff, a licensed attorney in Pennsylvania, argued that the rule, which stipulates that it is professional misconduct to “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” was a violation of his individual right to free speech.
The Court agreed and held that Rule 8.4(g) did not pass the strict scrutiny test for constitutionality. It was an “unconstitutional infringement of free speech according to the protections provided by the First Amendment” and was unconstitutionally vague under the Fourteenth Amendment. Agreeing with the Plaintiff, the Court granted his application for summary judgment and dismissed the Defendant’s motion for summary judgment.
Defendants, including the Disciplinary Board of the Supreme Court of the State of Pennsylvania, appealed the district court decision to the 3rd Circuit Court of Appeals as Greenberg v. Lehockey, et al. On Aug. 29, 2023, the court of appeals reversed the district court’s orders in its opinion, implicitly also reversing the latter’s finding that 8.4(g) was unconstitutional. The court of appeals also took the opportunity to pull rank on the district court. In the court of appeals’ published opinion, one word appears above the caption, in bold, capitalized letters, “PRECEDENTIAL.”
This issue is highlighted on the ABA Center for Professional Responsibility website.
