Greenberg v. Lehocky

• Docket Number: 22-1733
• Decision Date: 29 August 2023
• Parties: ZACHARY GREENBERG v. JERRY M. LEHOCKY, in his official capacity as Board Chair of the Disciplinary Board of the Supreme Court of Pennsylvania; DION G. RASSIAS, in his official capacity as Board Vice-Chair of the Disciplinary Board of the Supreme Court of Pennsylvania; JOSHUA M. BLOOM, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; CELESTE L. DEE, in her official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; LAURA E. ELLSWORTH, in her official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; CHRISTOPHER M. MILLER, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; ROBERT J. MONGELUZZI, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; GRETCHEN A. MUNDORFF, in her official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; JOHN C. RAFFERTY, JR., in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; HON. ROBERT L. REPARD, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; DAVID S. SENOFF, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; SHOHIN H. VANCE, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; THOMAS J. FARRELL, in his official capacity as Chief Disciplinary Counsel of the Office of Disciplinary Counsel; RAYMOND S. WIERCISZEWSKI, in his official capacity as Deputy Chief Disciplinary Counsel of the Office of Disciplinary Counsel, Appellants
• Court: U.S. Court of Appeals — Third Circuit

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ZACHARY GREENBERG
v.
JERRY M. LEHOCKY, in his official capacity as Board Chair of the Disciplinary Board of the Supreme Court of Pennsylvania; DION G. RASSIAS, in his official capacity as Board Vice-Chair of the Disciplinary Board of the Supreme Court of Pennsylvania; JOSHUA M. BLOOM, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; CELESTE L. DEE, in her official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; LAURA E. ELLSWORTH, in her official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; CHRISTOPHER M. MILLER, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; ROBERT J. MONGELUZZI, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; GRETCHEN A. MUNDORFF, in her official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; JOHN C. RAFFERTY, JR., in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; HON. ROBERT L. REPARD, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; DAVID S. SENOFF, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; SHOHIN H. VANCE, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; THOMAS J. FARRELL, in his official capacity as Chief Disciplinary Counsel of the Office of Disciplinary Counsel; RAYMOND S. WIERCISZEWSKI, in his official capacity as Deputy Chief Disciplinary Counsel of the Office of Disciplinary Counsel, Appellants

No. 22-1733

United States Court of Appeals, Third Circuit

August 29, 2023

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ARGUED: April 13, 2023

On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Criminal No. 2-20-cv-03822 (District Judge: Honorable Chad F. Kenney)

Lisa S. Blatt [ARGUED] Aaron Z. Roper Amy M. Saharia

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Peter Jorgensen Williams & Connolly Counsel for Appellants

Omar Gonzalez-Pagan Ethan Rice Lambda Legal Karen Loewy Lambda Legal Counsel for Amicus Appellant Lambda Legal Defense & Education Fund Inc.

Abraham C. Reich Robert S. Tintner Beth L. Weisser Fox Rothschild Counsel for Amicus Appellant American Bar Association

Carmen G. Iguina Gonzalez Joshua A. Matz

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Raymond P. Tolentino Kaplan Hecker & Fink Counsel for Amicus Appellants Stephen Gillers and Barbara S. Gillers

Joshua J.T. Byrne Marshall Dennehey Warner Coleman & Goggin Counsel for Amicus Appellants Rebecca Aviel, Myles V. Lynk and Ann Ching

Brittany C. Armour Hogan Lovells US, German A. Gomez Hogan Lovells U.S. Counsel for Amicus Appellants Hispanic National Bar Association, National Asian Pacific American Bar Association, Asian Pacific American Bar Association of Pennsylvania, National Bar Association, National Native American Bar Association, National LGBTQ+ &Bar Association, and National Association of Women Lawyers

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Theodore H. Frank Adam E. Schulman [ARGUED] Hamilton Lincoln Law Institute Counsel for Appellee

Ilya Shapiro Manhattan Institute Counsel for Amicus Appellee Manhattan Institute, Bader Family Foundation, Hans Bader

Eugene Volokh UCLA School of Law Counsel for Amicus Appellee Women's Liberation Front, Concerned Woman for America

Richard A. Samp New Civil Liberties Alliance Counsel for Amicus Appellee New Civil Liberties Alliance

John J. Bursch Alliance Defending Freedom

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Jacob P. Warner Alliance Defending Freedom Counsel for Amicus Appellee Alliance Defending Freedom

Randall L. Wenger Independence Law Center Counsel for Amicus Appellees Independence Law Center and First Liberty Institute

L. Theodore Hoppe Counsel for Amicus Appellee Christian Legal Society

Reilly Stephens Liberty Justice Center Daniel R. Suhr National Center for Justice & Liberty

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Counsel for Amicus Appellees Bruce A. Green and Rebecca Roiphe

Deborah J. Dewart Counsel for Amicus Appellee Institute for Faith and Family

Ethan Blevins Pacific Legal Foundation Counsel for Amicus Appellee Pacific Legal Foundation

Johanna E. Markind #280 Counsel for Amicus Appellee Legal Insurrection Foundation

Steven W. Fitschen National Legal Foundation Counsel for Amicus Appellees National Legal Foundation, Pacific Justice Institute, and Justice & Freedom Law Center

Larry L. Crain Crain Law Group

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Counsel for Amicus Appellee Patrick G. Gould

Before: CHAGARES, Chief Judge, SCIRICA, and AMBRO, Circuit Judges.

OPINION

SCIRICA, CIRCUIT JUDGE

The Supreme Court of Pennsylvania amended Pennsylvania Rule of Professional Conduct 8.4 to prohibit harassment and discrimination in the practice of law. Plaintiff Zachary Greenberg is a Pennsylvania-licensed attorney who regularly gives continuing legal education presentations about First Amendment protections for offensive speech. His presentations involve quoting offensive language from judicial opinions and discussing arguably controversial topics. Greenberg fears his speech at these presentations will be interpreted as harassment or discrimination under the Rule. He alleges the Rule violates the First Amendment and is unconstitutionally vague. The District Court agreed with him and enjoined enforcement of the Rule.

We determine Greenberg lacks standing to bring his challenge. Rule 8.4(g) does not generally prohibit him from quoting offensive words or expressing controversial ideas, nor will Defendants impose discipline for his planned speech. Thus, any chill to his speech is not objectively reasonable or cannot be fairly traced to the Rule. We will reverse.

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I.

The Pennsylvania Constitution vests the Pennsylvania Supreme Court with the power to regulate the practice of law in the Commonwealth. Pa. Const. art. V, § 10(c). To carry out this responsibility, the Pennsylvania Supreme Court enacts the Pennsylvania Rules of Professional Conduct for all attorneys licensed in the jurisdiction and empowers the Disciplinary Board of the Supreme Court of Pennsylvania to regulate the conduct of Pennsylvania attorneys according to those Rules.

Anyone may file a complaint against a Pennsylvania-licensed attorney for violating the Rules of Professional Conduct. Within the Disciplinary Board, the Office of Disciplinary Counsel investigates such complaints. If the Office of Disciplinary Counsel determines a complaint is frivolous or that policy or prosecutorial discretion warrants dismissal, it may dismiss the complaint without requesting a response from the attorney. From 2016-2018, the Office of Disciplinary Counsel dismissed 87% of complaints without requesting a response from an attorney. If an investigation finds that attorney discipline may be appropriate, the recommendation is reviewed by the Chief Disciplinary Counsel. The Chief Disciplinary Counsel directs the Office of Disciplinary Counsel's interpretation of the Rules of Professional Conduct and must grant express approval for any disciplinary recommendation. Depending on the disposition and severity of the reprimand, the Office of Disciplinary Counsel's disciplinary recommendations may proceed to a hearing, with de novo review by the Disciplinary Board and ultimately the Pennsylvania Supreme Court. Generally, investigations into attorney discipline are kept confidential and details are only made public after the Board pursues discipline.

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Pa. Disciplinary Bd. R. 93.102 (2022); Pa. R. Disciplinary Enf't 402(a) (2022).

The regulation of harassment or discrimination by attorneys has evolved over the decades. In 1983, the American Bar Association (ABA) first adopted the Model Rules of Professional Conduct. These rules are not binding on attorneys but serve as a model for states to form their own rules of conduct.

Model Rule 8.4 specifies, among other things, that it is "professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." Model Rules of Pro. Conduct r. 8.4(d) (Am. Bar Ass'n 2016). In 1998, the ABA adopted a comment to Model Rule 8.4 clarifying that it was professional misconduct for an attorney to "knowingly manifest[] by words or conduct, bias or prejudice" based on certain protected characteristics.^[1] Model Rules of Pro. Conduct r. 8.4 cmt. 2 (Am. Bar Ass'n 1998). But the scope of that comment was limited to words or conduct "in the course of representing a client" that "are prejudicial to the administration of justice." Id.

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." JA249. The result two years later was the adoption of Model Rule 8.4(g), which added specific antiharassment and

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antidiscrimination provisions within the black letter of the rule-not the commentary. Model Rule 8.4(g) also expanded the scope of the 1998 comment from conduct "in the course of representing a client" to "conduct related to the practice of law." Model Rules of Pro. Conduct r. 8.4(g) (Am. Bar Ass'n 2016). The ABA reasoned the Model Rule should prohibit harassment and discrimination beyond the scope of representing a client-such as "bar association functions" or "law firm social events." ABA Comm. on Ethics &Pro. Resp., Formal Op. 493, at 4 (2020). Model Rule 8.4(g) currently prohibits "harassment or discrimination" based on certain protected characteristics^[2] "related to the practice of law." Model Rules of Pro. Conduct r. 8.4(g) (Am. Bar Ass'n 2016).

Consistent with the ABA's goal of eliminating bias in the legal profession, many states have adopted their own provisions prohibiting some form of attorney bias, prejudice, harassment, or discrimination. Forty-four jurisdictions' rules of professional conduct, either directly or through commentary, regulate verbal manifestations of bias,...