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By Scott R. Eberle
On August 29, 2023, the United States Court of Appeals for the Third Circuit issued a precedential opinion reversing an Eastern District court ruling that permanently enjoined enforcement of Pennsylvania’s new Rule of Professional Conduct 8.4(g). In Greenberg v. Lehocky, et. al., the Third Circuit held that the plaintiff lacked standing to bring his pre-enforcement challenge to Rule 8.4(g), which provides that “[i]t is professional misconduct for a lawyer to … 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…” The decision clears the way for enforcement of the new Rule.
In Greenberg, the court noted that the plaintiff, Zachary Greenberg, a Pennsylvania-licensed attorney, regularly gave continuing legal education presentations about First Amendment protections for offensive speech. The court stated that Greenberg’s presentations involved quoting offensive language from judicial opinions and discussing arguably controversial topics. Greenberg filed suit, alleging that he feared that his presentations would be interpreted as harassment or discrimination under new Rule 8.4(g). He alleged that the Rule violated the First Amendment and was unconstitutionally vague. The District Court agreed with Greenberg and enjoined enforcement of the new Rule in its entirety.
On appeal, a three-judge panel found that Greenberg “fails to establish an imminent future injury because his planned course of conduct is not arguably proscribed by Rule 8.4(g) and he faces no credible threat of prosecution for engaging in such conduct.” The court stated that the Rule only covers “knowing or intentional harassment or discrimination against a person” and that “[n]othing in Greenberg’s planned speeches comes close to meeting this standard.” The court further noted that a declaration from Pennsylvania’s Chief Disciplinary Counsel, stating that Greenberg’s planned conduct does not violate the Rule and that the Office of Disciplinary Counsel would not pursue discipline, is compelling evidence that no threat of prosecution exists. The court added that any chill to Greenberg’s speech is “not objectively reasonable or cannot be fairly traced to the Rule.”
The court stressed that its decision is based on its assessment of Greenberg’s pre-enforcement challenge to Rule 8.4(g) as presented to it. The court stated that if facts later develop that support Greenberg’s fears of enforcement, then Greenberg may bring a new suit.
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