Court Strikes Down Pennsylvania Lawyer Speech Code

Today’s judgment in Judge Chad Kenney, E.D. Pa. Greenberg v. GoodrichRevisions to the Pennsylvania Rule of Professional Conduct (8.5(g),) are declared unconstitutional

It 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. A lawyer can accept, decline and withdraw from representations as per Rule 1.16. This does not prevent lawyers from giving advice or advocating in accordance with the Rules.

[Comment 3]Conduct in law practice includes: (1) interfacing with witnesses, coworkers and lawyers while appearing before a tribunal, in relation to the representation of clients; (2) managing or operating a law office or practice;

(3) participating in judicial committees or conferences; continuing legal educational seminars; bench bar conferences; bar association activities that offer legal education credits. (2) Speeches, communications, debates and presentations are not considered “the practice law”. (3) Publications given or published in contexts other than those described in (1) through (3).

[Comment 4]Harassment refers to conduct designed to intimidate or denigrate, show hostility or abversion towards a person, on any one of the bases described in paragraph (g). Harassment includes all forms of sexual harassment. This includes requests for favors or sexual advances.

[Comment 5]Discrimination is conduct that a lawyer recognizes creates an intent: To treat someone as inferior because they have one or more characteristics mentioned in paragraph (g); ignore relevant considerations about individual merits or characteristics due to one or more listed characteristics; or interfere with justice being administered based upon one or more listed characteristics.

Here are some examples of the court’s ruling that the Rule is in violation of the First Amendment. The opinion, which spans over 78 pages, contains more information.

“When harassment laws attempt to regulate written or oral expressions on these topics, no matter how detestable they may be, it is impossible to ignore the First Amendment implications.” Saxe v. State College Area School Dist. (3d Cir. 2001). In 2001, the Anti-Harassment Policy was in Saxe The Amendments use identical terms in both cases, including “intimidate,” denigrate and “hostile”, which are used in similar situations. This necessitates the enforcement of freedom of expression. Third Circuit rejected the claim that anti-harassment laws are not protected by the First Amendment. It also ruled that this policy prohibits “substantial amounts of speech that wouldn’t constitute harassment under any federal or state law.”  This reasoning was adopted by the Court. The prohibition in Rule 8.4(g), which prohibits denigrating any other person, is similar to the one found in Saxe Policy prohibiting the use of disparaging language directed at someone, raises this Court First Amendment concern.

Additionally, the Amendments lack protection from free speech as envisioned by the Third Circuit. DeJohn v. Temple Univ. (3d Cir. 2008). “Absent any requirement akin to a showing of severity or pervasiveness—that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work—the policy provides no shelter for core protected speech.”

The plain language in the Amendments as well as the oral arguments of the defendants prove that speech is not restricted by this regulation. Comment 3 of Rule 8.4(g), states that the “practice of law” does not cover speeches, communications or debates or presentations. Pa.R.P.C. 8.4 cmt. 3. According to the Court, that simple language can be understood as meaning all those All are included Rule 8.4(g), if the events occur in the following contexts: representation of a client; operating or managing a practice or law firm, or other activities or conferences that offer CLE credit. Thus, a plain reading of the Amendments restricts speeches, communications, debates and presentations—all of which obviously involve speech—at conferences, seminars, and other activities. Defendants, through counsel, confirmed to the Court during oral argument that “speeches, communications, debates, presentations, or publications” made within the contexts described in (1)—(3) of Comment Three are included in the scope of Rule 8.4(g). This language and counsel’s statements convince the Court that attorneys’ speech is not incidentally burdened here, it is targeted by Rule 8.4(g) and will continue to be broadly monitored and subject to government censure under this Rule….

[Professional speech:] Even though Amendments are directed at speech in a direct way, defendants argue that the state has wide authority to regulate professional speech. Therefore Rule 8.4 (g) shouldn’t be subjected to strict constitutional review. The Court disagrees yet again and finds no genuine dispute on this issue either…. Pennsylvania has an important interest in regulating licensed attorneys and their conduct  related to the fair administration of justice. However, this interest does not grant the government authority to regulate the speech of attorneys without limitations.

“The Supreme Court has not accepted professional speech as an independent category.” The Supreme Court recognized the possibility that an attorney could use speech to represent a client, or appear in courtrooms. However Pennsylvania’s Rule 8.4g goes far beyond the restriction of speech during a judicial proceeding. It is by no means limited to the legal process, as the Amendments explicitly apply to activities such as seminars or conferences where legal education credits are offered….

“[S]Peech isn’t unprotected simply because it is said by ‘professionals. NIFLA v. Becerra (2018). Only two situations exist in which professional speech has “less protection”, and Amendments don’t fall into one of these categories. The courts can apply “more deferential scrutiny” to certain laws that mandate professionals to reveal factual and noncontroversial information within their ‘commercial speech. As Rule 8.4(g isn’t a regulation on commercial speech, it doesn’t apply. Second, “[s]The tates can regulate professional conduct even though it may incidentally involve speech. The Court determined above there is no genuine dispute that the Amendments do not merely regulate conduct, the Amendments directly restrict speech…. [The Amendments]Speech outside of court, in the context a case is in, or outside the larger field of administration justice, must be restricted. It is a stretch to consider statements made by attorneys outside of those situations to be considered professional speech merely because it is uttered by an attorney….

The Court also admires Pennsylvania’s ideals of professionalism, benevolence, and excellence, but the state does not have the power to monitor professionals as they go about their day to remove speech that is below the “common good decency”. That nebulous notion of decency, combined with the exceptional authority the state would have if allowed to monitor attorneys outside of judicial proceedings and representation of a client and determine whether they are “decent” enough causes this Court grave concern….

[Viewpoint discrimination:] Viewpoint discrimination can be described as an “egregious form” of content discrimination. … It “targets … particular views taken by speakers[,]This “violates” the First Amendment’s fundamental promise. This is the “core postulate” of freedom speech law. The government cannot discriminate against speech that expresses ideas and opinions. …

Plaintiff relies upon Matal v. TamThe Supreme Court decided to consider the constitutionality and validity of an interdiction on trademark registrations that could “disparage” the public or “contemplatively affect the reputation of the company.”[t]them to discredit anyone, dead or alive.” Because the court found the provision in violation of the First Amendment, “[s]Peech is not prohibited if it offends. You are invited to sign up. Although the Supreme Court did not prohibit disparaging any group, it encouraged viewpoint discrimination to be taken in its broadest sense.[s]It should be considered as viewpoint discrimination, however.[g]”Iving offense” is considered a viewpoint. The defendants claim that Rule 8.4(g), which affects all lawyers equally, is viewpoint discrimination. Justice Kennedy addresses the issue in detail. Matal. Justice Kennedy added, “[t]”Burning all parties from criticizing each other makes the law more viewpoint-based and not less.”

The Amendments further state that professional misconduct is when an attorney “knowingly engages in”. […]Harassment” is defined as “intention to insult or show hostility toward someone.”[.]”Just like the provision in Matal Prohibited trademarks that denigrate, show contempt, or discredit towards someone are prohibited. Rule 8.4(g), which prohibits the use of the following categories to describe a person: race, gender identity, expression or religion; age; marital status or socioeconomic status; and sexual orientation. They have only “selected one subset of the message” – language that denigrates or hostsility to a person or is aversion to them “for favor based upon their views.”

Again here, Saxe The Third Circuit is correct in determining whether Rule 8.4 (g) prohibits offensive speech. Third Circuit determined that the Anti-harassment Policy in Saxe The focus was too heavy on the speaker’s intent and disregard federal harassment law. This law applies when harassment causes a serious injury to the institution. Here, both the definitions of harassment and discrimination begin with the speaker’s intentions—intended to intimidate and manifests an intention—thereby extending the regulation “to speech that merely has purpose of” harassing another. This regulation can be extended to offendical acts which are usually not enough for federal antiharassment liability.

Although the defendants claim that Rule 8.4(g does not apply to listeners’ subjective offense feelings, it is impossible according both to the regulations and the administrative processes. The Amendments ban offensive language by using terms such as “denigrate”, “hostility” and “aversion,” along with questioning attorneys when they “manifest an intention: treat a person like an inferior.” The individual who listens, regardless of the fact that the remarks are directed at a person, determines subjectively whether they feel offended and files a complaint. It’s absurd for the Defendants that they claim an individual’s perspective is irrelevant when the Rule depends on complaints from the public. Whether an individual perceives the expression of another person to be welcoming or unwelcomed is an essential premise in harassment. The perception of an individual is precisely what motivates them to file complaints. Next, the ODC reviewing employee decides if the language is sufficiently offensive to be subject to discipline.

The Farrell Declaration promises that the defendants will not consider whether one has been offended while investigating complaints. This promise is however completely unsustainable. ODC can evaluate the effect of attorney conduct on judicial proceedings and the representation of clients more objectively if they are tied to Amendments. This would allow ODC to assess whether the actions of attorneys have prevented equality or fair administration of justice. Without that kind of tethering the Rule flounders among the many things the majority find offensive.

ODC’s criteria for assessing a case are subjective at best and completely unfamiliar to Pennsylvania attorneys such as Mr. Greenberg or ODC. Greenberg points out numerous cases where panelists or speakers at seminars and legal conferences made subjectively insulting statements, but objectively benign. This was a significant incident. Even before Rule 8.4 (g) was promulgated, the stated purposes of government included “affirm”[]No lawyer can escape the influence of ethics and law. It is quite telling that the Board included ethics in its public introduction. This shows how they imagined the rule would be applied and implemented. The Court does not dispute the fact that Rule 8.4 (g) allows for disciplinary action when listeners are offended. It appears this is a thinly disguised effort to police lawyers who have bad views or thoughts.

“[T]It is clear that the free speech clause covers speech that people may find deeply offensive. This includes statements that disparage religious beliefs, or race of another person. The Court is in agreement with Mr. Greenberg. Rule 8.4 (g) ultimately depends on how the public perceives Plaintiff’s speech, and the subsequent judgments by the government agents that they will investigate or issue a discipline. The Court concludes that Amendments including Rule 8.4 (g) and comments are valid. [3]And [4], constitute viewpoint-based discrimination in violation of the First Amendment….

[Compelling interest:] According to the Defendants Pennsylvania has an imperative interest in “eliminating harassment and discrimination, ensuring that all parties can use the legal profession, maintaining the public’s confidence in its impartiality and trusting the legal profession in general.” In order to permit Pennsylvania to regulate attorneys it licenses, Rule 8.4 (g) was established to guarantee that the state’s judicial system remains accessible and efficient. The defendants also seek to protect the fairness and integrity of [Pennsylvania’s] judicial system[.]Pennsylvania, the defendants go even further and state Pennsylvania must preserve its reputations by prohibiting them from engaging “deplorable” or “below common decency.”[.]” …

The Court cannot credit defendants for showing a compelling public interest, when they instead gave amorphous justifications that were not tied to Pennsylvania attorneys or Pennsylvania in any of the situations listed in the Amendments. While there is concern about the public’s distrust in doctors and unequal access, that does not make it necessary to require doctors to refrain from making offensive statements on a forum related to medical practice. This will help improve the public perception. Although there is some public distrust of large banks, it isn’t a reason for bankers not to make offensive statements. The notion that public distrust can be used to anchor government regulation may extend to all industries in which the state holds licensing authority. This could invite regulatory agencies to censor unfavorable speech deemed unworthy by those working in their respective industry. These broad strokes can have a negative effect on the Constitution’s ability to protect individual rights, and to stop the spurious movements of the moment that want to restrict those rights. It is a concerning slippery slope for government to involve itself in the manner and direction of public discourse that cannot be overstated….

Furthermore, the government does not have the responsibility to make sure that every lawyer is a noble protector of the profession and well-liked in the eyes of the public. It is similar to asking all public school teachers to love children and requiring doctors with good bedside manners to practice their profession. What would you prefer in an ideal universe? Sure. The government cannot enact regulations to control the types of individuals who are employed in certain professions. Final word, defendants want the Court blindly to accept that anti-harassment, anti-discrimination and other policies are justified. The Court can’t do this without more attention being paid to the state’s interest in adopting this rule. This nebulous good is insufficient to serve as a compelling interest to restrict freedom of speech and expression….

In addition, the court ruled that Amendments were unconstitutionally vague. “They do not give fair notice to Pennsylvania lawyers of prohibited conduct and invite impropriety enforcement by ODC or the Board.”

First, Amendments may contain definitions made up that are inconsistent with existing definitions in similar contexts. That is to say—ODC makes up its own definitions for the purpose of this rule alone. Begin with harassment. Comment Four to Rule 8.4 (g) describes it as conduct that is designed to intimidate or denigrate, or show hostility, or aversion towards a person, on any one of the bases mentioned in paragraph (g). This definition is unlike other definitions of harassment in similar contexts….

It is not clear that Comment Five’s definition of discrimination has been improved. For the Court, it is unclear how an attorney might “manifest an intent” or “disregard”.[s]applicable characteristics”, in violation of the Rule. The Amendments offer no clarification as to what those relevant characteristics may be and that prevents ordinary attorneys from understanding what  they must take into account in order to avoid any manifestation of discrimination. These definitions are crucial to lawyers’ understanding of Rule 8.4 (g). There is a risk Rule 8.4 (g) may restrict free speech. Its boundaries should be clearly defined, but there must also be minimal or no connection with the substantive laws of harassment and discrimination. Additional reasons to be aware of the potential reputational damage that could result from an attorney being accused of harassment or discrimination under Rule 8.4 (g). The Court will consider fair notice when considering whether the allegations were made. A probe into an attorney’s allegations of discrimination and harassment can hinder their ability to get clients, keep employment, or be admitted in another jurisdiction. There are many potential reputational damages that such attorneys could suffer. Although the Court does take harassment and discrimination in law practice seriously, it doesn’t excuse the Board to draft regulations giving attorneys fair notice.

Second, … the Amendments as written invite arbitrary or discriminatory enforcement of Rule 8.4(g)….  The Amendments’ plain language defines harassment as conduct that is designed to intimidate or denigrate or show hostility, or aversion. By using terms such “denigrate” and “aversion,” the Board encourages subjective interpretations and enforcement. The ODC will review the complaint and determine what constitutes harassment. Refer to e.g., McCauley v. Univ. McCauley v. Univ. (3d Cir. (2010) (finding that the ban on offensive signs is “hopelessly vague and subjective”. Dambrot v. Cent. Michigan Univ. (6th Cir. (6th Cir. 1995). (holding policy inconstitutionally vague when it focused on “subjective references” as to whether speech was “negative or offensive.” The definition of discrimination has similarly vague terms to require the attorney “manifest an intention” and “to disregard relevant considerations of individual characteristics or merit,” which will give ODC complete discretion to determine whether an attorney has manifested anything under the regulation or to determine what relevant characteristics should have been considered….