U.S. Court of Appeals – Third Circuit
April 20, 2022
On Appeal: oral argument not yet scheduled
A lawyer sued the Disciplinary Board of the Supreme Court of Pennsylvania to enjoin newly adopted rule 8.4(g) of the Pennsylvania Rules of Professional Conduct (based on a Model Rule of the American Bar Association). Rule 8.4(g) allows a lawyer to be sanctioned for supposedly discriminatory or harassing conduct. A federal district court twice found that the rule violated attorneys’ Constitutional free speech rights and enjoined the rule. (After the first time, the Supreme Court of Pennsylvania revised the rule.) The lower court held that the revised version contained no objective standard for determining when the rule was violated. (“The standards for ODC’s assessment are, at best, subjective, and, at worst, completely unknown to both Pennsylvania attorneys like Mr. Greenberg and even ODC itself.”)
The Disciplinary Board appealed to the Third Circuit Court of Appeals. Legal Insurrection Foundation filed an amicus brief supporting Greenberg, the plaintiff-appellee. The brief argued that Rule 8.4(g) is essentially a speech code for lawyers, and that like university speech codes, it would chill speech protected by the First Amendment. No oral argument has been held as of January 2023.
Brief amicus curiae of Legal Insurrection Foundation, October 27, 2022
Johanna Markind, Legal Insurrection Foundation Files Brief Opposing Pennsylvania Attempt To Punish Lawyer Speech It Deems “Discriminatory” or “Harassing”, LEGAL INSURRECTION (October 28, 2022).
Johanna Markind, American Bar Association Files Brief Supporting Disciplining Lawyers Who Offend Protected Groups, LEGAL INSURRECTION (September 29, 2022).