In Greenberg v. Lehocky, issued on August 29, 2023, and due to be published, the U.S. Court of Appeals for the Third Circuit held that an attorney challenging the constitutionality of Pennsylvania Rule of Professional Conduct 8.4(g) lacked standing to challenge the Rule. More particularly, the court stated, “Rule 8.4(g) does not generally prohibit [Greenberg] 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.”

That conclusion rests on the court’s repeated observation, grounded on statements from the Pennsylvania disciplinary authorities that they saw nothing in Greenberg’s planned presentations that violated the Rule. As the court explained, the Rule “prohibits only harassment and discrimination that is knowing or intentional.” That means the rule “reaches only lawyers who are practically certain their speech will cause harassment or discrimination, not those who inadvertently offend their audience.”

The court noted, “The Chief Disciplinary Counsel . . . reviewed Greenberg’s planned presentations, speeches, and writings and stated they do not violate the Rule.” It reiterated, “Defendants disavow enforcement for any of Greenberg’s planned conduct.” In response to Greenberg’s fear that an attendee might complain that his presentation ran afoul of Pennsylvania Rule 8.4(g), the court declared that fear to be “speculative” because ”Defendants interpret Greenberg’s planned conduct as not barred by the Rule.” As a result, the court stated, “[T]he Office of Disciplinary Counsel would determine any disciplinary complaint arising from Greenberg’s planned speech to be frivolous, allowing the complaint to be dismissed without even a response from him.”

 

The court’s acceptance of Pennsylvania’s concessions meant that Greenberg had no reasonable fear of prosecution and to the discounting of his claims of chilled speech. By foreswearing any intention of prosecuting Greenberg, Pennsylvania saved its Rule. Even so, it may have only postponed its day of reckoning. As Judge Ambro, concurring, pointed out, Pennsylvania has the opportunity to “amend the Rule preemptively to eliminate many of the constitutional infirmities alleged by Greenberg.” It can ”direct regulatory reach away from the constitutionally protected speech Greenberg and his amici wish to espouse and narrowly steer it toward the overt and insidious evils that the Pennsylvania Bar and its amici wish to eradicate.” 

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