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September 13, 2022

ABA amicus brief supports Pennsylvania rule barring harassment and discrimination by attorneys

CHICAGO, Sept.13, 2022 — The American Bar Association filed an amicus brief today with the U.S. Court of Appeals for the Third Circuit, asserting that Pennsylvania Rule of Professional Conduct 8.4(g), which like ABA Model Rule 8.4(g) prohibiting harassment or discrimination by attorneys, is constitutionally sound and should be upheld.

At issue is a challenge to the Pennsylvania rule that addresses, as the ABA brief states, “misconduct that is antithetical to the administration of justice: attorney words and actions that constitute improper discrimination or harassment.” About two dozen states have rules similar to Pennsylvania’s and the ABA’s.

The ABA amicus brief describes the association’s history of developing model rules for lawyers since 1908 and focuses on the ABA’s efforts to ensure good behavior by attorneys in the practice of law, including adoption of the Model Rules of Professional Conduct in 1983. The ABA adopted Model Rule 8.4(g) in 2016. “The rule reflects the judgment of the world’s largest voluntary association of lawyers and judges that previous measures have been insufficient to root out these evils — evils which remain alarmingly frequent despite efforts to prevent them,” the ABA brief said.

The Pennsylvania lawyer who is challenging his state’s version of rule 8.4(g) argues that it violates his First Amendment rights. Although the plaintiff has not been subjected to any specific disciplinary action, he argues the rule is facially invalid because the potential for discipline has a chilling effect on attorney speech. A federal district court issued a preliminary injunction against the rule, and the Disciplinary Board of the Supreme Court of Pennsylvania is appealing.

The ABA amicus brief contends the Pennsylvania rule, similar to the ABA model, was “narrowly drawn to reach only discriminating or harassing conduct” and is “entirely consistent with the First Amendment.” It adds that because the petitioner has not been subject to discipline and the rule has many valid applications, the plaintiff’s pre-enforcement, facial challenge to the rule is premature.

“Simply because a lawyer can conjure up some circumstances where protected speech could be subject to discipline is not sufficient to mount a successful facial challenge to the rule,” the brief said. “A plaintiff must carry the burden of establishing that invalid application of the rule makes it substantially overbroad. That is because the overbreadth doctrine ‘seeks to strike a balance between competing social costs.’”

The ABA amicus brief in Greenberg v. Lehocky is here. The law firm of Fox Rothschild LLP of Philadelphia, Pennsylvania filed the brief pro bono on behalf of the ABA.

The ABA is the largest voluntary association of lawyers in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.