Welcome news: citing the First Amendment, U.S. District Judge Chad F. Kenney of the Eastern District of Pennsylvania has enjoined the enforcement of a new Pennsylvania Supreme Court disciplinary rule providing that lawyers practicing in the state can face penalties if, among other things, they “knowingly manifest bias or prejudice” in the course of law practice. The latter is defined so broadly as to include presenting on issues of public concern at bar conferences, continuing legal education seminars and the like. The rules were challenged by Pennsylvania attorney Zachary Greenberg, who currently works as a program officer at the Foundation for Individual Rights in Education.
After confirming that Greenberg had standing to proceed with his challenge even though enforcement has not yet begun, the court went on to reject the idea that a professional‐speech exception to the First Amendment allows for closer regulation of lawyers’ expression in this area, and further ruled that the restrictions were not only content‐based but viewpoint‐based, a finding nearly always fatal to speech restrictions. (Eugene Volokh has more on the opinion here.)
Ultimately, the Court is swayed by the chilling effect that the Amendments will have on Plaintiff, and other Pennsylvania attorneys, if they go into effect. Rule 8.4(g)’s language, “by words … manifest bias or prejudice,” are a palpable presence in the Amendments and will hang over Pennsylvania attorneys like the sword of Damocles. This language will continuously threaten the speaker to self‐censor …
Defendants dismiss these concerns with a paternal pat on the head and suggest that the genesis of the disciplinary process is benign and mostly dismissive. Defendants further argue that, under the language of Rule 8.4(g) targeting “words,” even if a complaint develops past the initial disciplinary complaint stage, actual discipline will not occur given the conduct targeted, good intentions of the Rule and those trusted arbiters that will sit in judgment and apply it as such. But Defendants do not guarantee that, nor did they remove the language specifically targeting attorneys’ “words.” Defendants effectively ask Plaintiff to trust them not to regulate and discipline his offensive speech even though they have given themselves the authority to do so. So.… there remains the constant threat that the Rule will be engaged as the plain language of it says it will be engaged.
The Pennsylvania rules were based on an American Bar Association model rule that has been rejected in many states because of its likely chilling effect on lawyers’ professional speech. I’ve criticized that model rule repeatedly in this space on those grounds.
Greenberg’s win is a victory for the fledgling Hamilton Lincoln Law Institute, or HLLI, founded by Ted Frank, which describes itself as standing “for free markets, free speech, limited government, and separation of powers, and against regulatory abuse and rent‐seeking.” Congratulations, Ted!
