ABA Model Rule 8.4(g) in Pennsylvania

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ABA Model Rule of Professional Conduct 8.4(g) holds it misconduct for an attorney to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination” in connection with the practice of law. Scholars have criticized the Rule as chilling speech on matters of public concern and unlawful viewpoint discrimination; several state attorneys general concluded the rule is unconstitutional. Nevertheless, Pennsylvania adopted a modified version of Rule 8.4(g), including “words or conduct” within its ambit. In Greenberg v. Haggerty (E.D. Pa. 2020), an attorney represented by the Hamilton Lincoln Law Institute obtained a preliminary injunction against Pennsylvania’s enforcement of the rule. Pennsylvania officials have appealed to the Third Circuit. HLLI’s Ted Frank will discuss Rule 8.4(g) and its consequences for speech, the Greenberg decision and appeal, and the prospects for future litigation.   


Ted Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute and the Center for Class Action Fairness.


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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.



Evelyn Hildebrand:  Welcome to The Federalist Society’s Teleforum conference call. This afternoon, January 27, we discuss “ABA Model Rule 8.4(g) in Pennsylvania.” My name is Evelyn Hildebrand, and I am the Associate Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the expert on today’s call.


Today, we are fortunate to have with us Ted Frank, Director of Litigation and Senior Attorney at the Hamilton Lincoln Law Institute and the Center for Class Action Fairness. Frank founded and ran CCAF as a non-profit, public interest law firm in 2009. After our expert gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call. With that, thank you for being with us, Ted. The floor is yours.


Ted Frank:  Thanks and thanks to The Federalist Society for letting us do this. My name is Ted Frank. Our website is hlli.org. And you probably know us best for our work against class action settlement abuse, but in the last couple of years we’ve looked for other law opportunities to litigate in the public interest, regulatory abuse, free speech, and that sort of thing.


Of course, it’s every lawyer’s dream to be litigating First Amendment cases, and our first free speech case was Ham-Linc’s litigation against ABA Model Rule 8.4(g) as it was adopted as modified in Pennsylvania in the case of Greenberg v. Haggerty, which was decided a month ago. And that was ably and successfully litigated and argued in the district court by our attorney, Adam Shulman.


I’m going to talk about Rule 8.4(g), why it presents important free speech issues, why you should care about it, our suit, and district court preliminary injunction in Greenberg, Pennsylvania officials’ appeal to the Third Circuit, and the future of 8.4(g) and the litigation there. So in August of 2016, the American Bar Association, which has the model rules of professional conduct, adopted -- approved and adopted Rule 8.4(g). Under that amendment, it is misconduct for an attorney to, quote, engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of—and then the standard laundry list of protected attributes: race, sex, so on and so forth—in conduct related to the practice of law.


Now, what is related to the practice of law? Well, the ABA’s Comment Four says conduct related to the practice of law includes representing clients, interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law, operating and managing a law firm or law practice, and then participating in Bar Association business or social activities in connection with the practice of law. So model rules are just that. They’re model rules. They don’t have force unless they’re adopted by states.


And as states considered whether to adopt this, there was immediate controversy from scholars such as Josh Blackman and Eugene Volokh. And in this discussion, I draw from their work quite a bit as we did during our litigation. One problem with the model rule was the expansion of, quote, conduct related to practice of law.


There are disciplinary rules, but discipline was related to the administration of justice or the representation of clients or a lawyer’s fitness if he or she had been convicted of crimes of moral turpitude or something like that. But now, discipline was expanding greatly into the private sphere, lectures given at CLE events or dinnertime conversation at a Bar Association function, anything where the speaker might reasonably know that someone would find their speech derogatory. The threat of sanction will inevitably chill speech on matters of public concern.


Now, certainly the ABA had good intent. They were concerned about real issues of sexual harassment, partners coercing or subjecting associates to a severe or pervasive hostile environment at a firm Christmas party or dinner or a business trip. The problem is is that the rule far extends beyond Title VII sexual harassment to a broader concept of, quote/unquote, harassment, which was defined by the ABA’s Comment Three to include derogatory or demeaning verbal conduct.


Now, the problem is is that such speech is protected by the First Amendment. Things well over the line of polite behavior, such as hate speech and racial slurs, cannot be punished. There’s no categorical harassment exception to the First Amendment. There’s no hate speech exception to the First Amendment.


Courts have generally -- now, certainly courts have generally permitted the damage -- the imposition of damages for verbal, that is non-physical, sexual harassment in the employment context but under the onus that the speech was, quote/unquote, severe or pervasive -- so severe or pervasive that it created a, quote/unquote, offensive work environment. But the ABA model rule doesn’t have that limit. A single comment construed as harassing, i.e. demeaning or derogatory, can led to discipline. And the rule expressly extends far beyond the work environment, indeed beyond the First Amendment implications of Rule 8.4(g) in future litigation over the state courts -- where courts should consider whether licensing groups or Bar Associations even have the statutory authority under state law to assert jurisdiction over speech that is increasingly attenuated from the practice of law that would be administration of justice.


And you can see the problem. One can imagine any number of political positions one might face that an opponent might characterize as, quote/unquote, derogatory or demeaning. The issue of women or transgender people in military service or athletic competition, questions on affirmative action or on crime and punishment, debates about the Obergefell case or the gay marriage rights, even debates about judicial confirmations. Debates on immigration or welfare could be accused of derogatory or demeaning verbal conduct on the basis of national origin or socioeconomic status. Should public housing residents be subject to drug tests?


Now, and imagine a question of whether religious exemptions to providing services for gay weddings, the Masterpiece Cakeshop case, discussions over those issues. You could arguably say that both sides could be accused of harassment under the broad ABA language. Proponents of religious exemptions could be accused of being demeaning to gays. A speaker accusing business of seeking such exemptions as bigoted or homophobic could be accused of being derogatory on the basis of religion.


But Comment Four of the ABA rule gives a shield of sorts, but only to one side. “Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule.” So one side of the debate, that’s an affirmative offense. “I was just doing it to promote diversity and inclusion,” which my question so much is the relative value of diversity against other values risks discipline. Speech supporting a right to same sex marriage or not will not be considered derogatory. Speech critiquing it will be. Speech opposing immigration policy that excludes people based on their socio-economic status will not be consider harassment, demeaning, or derogatory. Speech endorsing it has that risk.


So the ability of attorneys to participate in an important debate on one side will be suppressed, and that’s a First Amendment problem. That’s viewpoint discrimination. And indeed, a 2017 study done by Cato and FIRE showed that a substantial percentage of students believed that merely suspending the free speech right to engage in hate speech, like I’m doing today, is itself equivalent to hate speech.


So the reality is that a rule like Model Rule 8.4(g) would be weaponized. The threat of complaints from political opponents dragging an attorney into disciplinary proceedings, and worse publicity about disciplinary proceedings, would chill speech. And when I say that that’s far from hypothetical. In 2013, conservative judge Edith Jones gave a speech about, among other things, the death penalty at the University of Pennsylvania Law School Federalist Society.


And in the course of answering audience questions, she made the empirical observation that members of some racial groups commit crime at rates disproportionate to the population, and therefore, you would expect disproportionate representation on death row. And in response to that, organizations, activists, and law professors supported by the affidavits of five University of Pennsylvania law students and an attorney who had attended the lecture filed an ethic complaint against Judge Jones for racial bias on the basis of her speech. And after appointing a law professor to investigate, a three-judge special committee of the D.C. Circuit, which had taken over the disciplinary proceedings from the Fifth Circuit, rejected the complaint in a 71-8 single states report.


And in response to which the complaints filed the petition for review to the Judicial Conference of the United States. They affirmed the special committee’s decision. But the entire process subjected Judge Jones to extensive adverse publicity and investigation for nearly two years. And even today, if you look at Judge Jones’ Wikipedia entry, she has served over 35 years as a highly respected federal judge, and this stupid ethics complaint is the largest section of her Wikipedia page.


In 2015, Northwestern University professor Laura Kipnis, no conservative, wrote an essay in the Chronicle of Higher Education where she was critical of the use of Title IX policies on sexual misconduct, that they put professors and accused students in untenable positions. And in retaliation, two graduate students filed a Title IX complaint against her, claiming that Professor Kipnis’ essay created, quote/unquote, a hostile environment. And then when Kipnis wrote about the first Title IX complaint, they filed a second Title IX complaint against her for doing that. She was eventually cleared of wrongdoing, but she faced years of investigation at non-trivial costs to herself and her reputation.


We’ve all seen it in the last year. Many law professors have been criticized or faced severe consequences for the pedagogical use of quotations of case or speeches that include racial slurs. And 8.4(g) calls all of this harassment -- quote/unquote harassment. It doesn’t distinguish between the actions of a Harvey Weinstein and the neutral recitation of facts by an Edith Jones. The headlines alone could do substantial career damage.


So though there’s a move to push for adoption of 8.4(g) and 8.4(g)-like rules most states have reject -- 14 states have explicitly rejected. Several state attorneys general have issued opinions that the rule violates the First Amendment, but not all the states. Last year, Pennsylvania adopted a version of 8.4 that was supposed to take effect in December. In some ways, it was narrower than the model rule. In other ways, it was broader. For example, it expressly included “words or conduct” in its language.


Now, even the ABA model rule comments talk about verbal conduct, and expressive conduct is considered speech under First Amendment jurisprudence. So I don’t think that the addition of the word “words” makes much of a legal difference other than the ugly optics of saying the quiet part out loud. But it’s obvious that this is something targeted at speech.


Now, Pennsylvania’s narrower than the model rule in that harassment is defined as consistent with existing antidiscrimination laws, unlike the broad definition that the ABA gave it. So it doesn’t suffer some of the problems in the model rule, and its definition of conduct in the practice of law where which limited to doesn’t reach some of the private conduct that the model rule reaches. But it still explicitly includes things like continuing legal education.


There’s a safe harbor for advice or advocacy in the Pennsylvania rule, but the Pennsylvania rule is broader than the model rule in that it forbids words or conduct that, quote/unquote, manifest bias or prejudice. And who knows what that covers? In October, Senator Ed Markey of Massachusetts tweeted, quote, “Originalism is racists. Originalism is sexist. Originalism is homophobic. Originalism is just a fancy word for discrimination.” So if you’re speaking in favor of originalism, are you manifesting bias or prejudice?


Well, Senator Markey would say so, and I suspect there are law students and law professors out there who would say that also. It’s not true, but who knows what definitions are these days? And with that sort of vagueness, in August we sued on behalf of our client, Pennsylvania attorney Zachary Greenberg. He is an attorney at FIRE, which is an organization in Pennsylvania that does great work nationwide in the area of campus free speech and rights, student rights, faculty rights. Zach goes around talking to law schools and lawyer groups and giving continuing legal education seminars about the First Amendment and about the due process rights of students accused of wrongdoing.


And you all know that that’s a recent controversy in terms of the Obama and Trump administrations giving dueling guidance and regulations on the question of the application of Title IX to accusations of sexual assault on campus. And in the course of giving those talks, Zach has fielded complaints from audience members that his ideas or language are offensive. So our complaint on behalf of Zach alleged that 8.4(g) would give such audience members the hook to file disciplinary complaints against him and that he would have to engage in self-censorship to avoid the risk of discipline.


We sued the members of the disciplinary board—you have Eleventh Amendment stuff to worry about—to enjoin enforcement of 8.4(g) as a content-based and viewpoint-based violation of the First Amendment, as overbroad, as void for vagueness. And we sought an injunction against it.


There were cross motions shortly thereafter for dismissal and for preliminary injunction. We were able to stipulate to a set of undisputed facts at that stage of the litigation, though Pennsylvania reserved the right to dispute facts later. Pennsylvania’s argument on dismissal and against the preliminary injunction were that Zach’s fears were too speculative to grant them Article III standing to challenge this on a facial basis pre-enforcement and that they had the right to regulate attorney conduct and other various denials of our legal claims.


In November, our HLLI attorney, Adam Schulman, gave an impressive argument. And on December 8, the district court denied the motion to dismiss and granted the preliminary injunction we sought. The court found that Greenberg had shown a credible threat of prosecution. He had demonstrated specific examples of individuals filing disciplinary and Title IX complaints against speakers who were presenting on similar topics that he speaks about. And while not ever complaint to a disciplinary board results in investigation or sanction, Greenberg had demonstrated, quote, there is a substantial risk that the amendments will result in him being subjected to a disciplinary complaint or investigation.


And the court went on to say that it was swayed by the chilling effect that the amendments will have on Greenberg and on other Pennsylvania attorneys if they go into effect. The defendants effectively asked plaintiffs to trust them not to regulate and discipline as offensive speech, even though they have given themselves the authority to do so. So despite asking claimants to trust them, there remains the constant threat that the rule will be engaged as the plain language of it says it will be engaged.


It can hardly be doubted there will be those offended by the speech or the written materials accompanying that speech that manifests bias or prejudice who will quite reasonably insist that the disciplinary board perform its sworn duty and apply rule 8.4(g) in just the way the clear language of the rule permits. Even if the disciplinary process does not end in some form of discipline, the threat of the disruptive, intrusive, and expensive investigation and investigatory hearing into the plaintiff’s words, speeches, notes, written materials, videos, mannerism, and practice of law would cause plaintiffs and any attorney to be fearful of what he or she says and how he or she will say it in any form private or public that directly or tangentially touches upon the practice of law.


One big precedent was NIFLA v. Becerra where the regulation of professional speech is cabined by non-controversial disclosure requirements or regulation of professional conduct that only incidentally involves speech. And this went well beyond this. It was not limited to speech that could affect the administration of justice.


On the question of viewpoint discrimination, the court relied on recent Supreme Court cases, such as Matal v. Tam, the “Slants” case, and Iancu v. Brunetti where trademark law book reflects the government’s disapproval of a subset of messages it finds offense, the essence of viewpoint discrimination. Laws that by their term distinguish favored speech from disfavored speech on the basis of their ideas or views expressed are content basis. And as Texas v. Johnson says, “If there’s a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”


The court here concluded “There is no doubt that the government is acting with beneficent detachment. However, in doing so, the government has created a rule that promotes a government favored viewpoint monologue and creates a pathway for its handpicked arbiters to determine without any concrete standards who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed was socially and politically acceptable and within the bounds of permissible cultural parlance. If the government cannot set its standard by legislating diplomatic speech because although it embarks upon a friendly, favorable tide, this tide sweeps us all along with the admonished minority viewpoint into the massive current of suppression and repression. Our limited constitutional government was designed to protect the individual’s right to speak freely, including those individuals expressing words or ideas we abhor.”


And Pennsylvania officials have since appealed the injunction. Their opening brief is likely to be filed in mid-March with our response to it in April. In filing this before the Third Circuit, they’ve said they’re focusing on two issues, whether the question of Greenberg’s standing is to bring a pre-enforcement facial challenge and whether 8.4 is permissively viewpoint based.


So if you have interest in First Amendment issues, Third Circuit judges have publicly expressed interest in intelligent amicus briefs that provide perspectives and background that may not be in the briefing. And I know there are professors out there who have reached out to us who are looking for attorneys to represent them to do those amicus briefs. So feel free to reach out to Adam Schulman on our -- who’s information you can find on our website. And he can help match you and coordinate to avoid duplication if you’re interest in those issues.


In terms of the future of 8.4, of course a lot depends on what the Third Circuit says and perhaps the Supreme Court beyond that. But with a good precedent, one hopes that this discourages other bar associations from attempting to impermissibly regulate the speech of attorneys. Vermont and New Mexico have adopted 8.4(g) in addition to Pennsylvania. Maine has adopted a modified version of it.


Those three are relatively small states. I’m not aware of any challenges of discipline there, though there might be that I’m just not aware of. Other states are still considering whether to adopt 8.4(g). We’ve written comments to several of them.


If you’re an attorney in a state that has passed this or passes it in the future and your speech would be plausibly chilled, we’re absolutely interested in hearing from you. We’ve got the injunction here. We’d love to get it done in other states as well. And with that, I look forward to your questions.


Evelyn Hildebrand: Wonderful. Thank you. So at this time, we’re going to transition to audience questions. We have several people who have lined up in the queue already. So at this time, I will hand over the floor to our first caller.


Peter:  Good morning. This is Peter from Los Angeles. Thanks for this presentation. My question concerns the part concerning discrimination, which does that mean, for example, that an attorney may not decline to represent a client based on that client’s race, religion, whatever? And if so, is that rule reciprocal? Would it bar a client from rejecting an attorney based on the attorney’s race, religion, or other protected characteristic?


Ted Frank:  So that’s an interesting question. Pennsylvania had an exception for advice or advocacy, so I don’t think -- I don’t know how far it reaches with respect to decisions rather to represent a client or not represent a client. That’s obviously a problem.


In terms of the ABA rule, again, I would have to look closer at the comments on that. I don’t want to give a firm answer on that one way or the other. What I can say is that with respect to clients this is a disciplinary rule, and clients who aren’t attorneys at least can do what they want without being subject to the disciplinary rules of bar associations and disciplinary boards that are engaged in licensing because nobody licenses clients.


Now, whether there might be other laws out there, for example, if a firm announces that they’re only going to -- excuse me, if a business client announces that they’re only going to hire attorneys of a particular race, that’s discriminatory conduct that might be actionable in some circumstances. Law firms hypothetically, at least, should not be allowed to honor discriminatory requests by clients like that.


But we all know that over the last 15 years we’ve heard several general counsels saying that they do just that. And I’m not aware of any litigation over that. So there’s what the law says and then what actually happens in terms of people willing to stick their necks out to enforce the law.


Evelyn Hildebrand:  Great. Thank you. So then we’ll move to the next caller in our queue.


Caller 2:  Good morning. I’m licensed in Missouri, and Missouri seems to handle it in a more passive manner in which our license is now annually contingent on completing an hour of elimination of bias ethics training, that if we do not do it, then our license is not renewed. Is that analogous?


Ted Frank:  I think that’s a different issue so long as the licensing board isn’t insisting on one particular viewpoint in terms of that sort of CLE training. And I’ve approached The Federalist Society to sort of offer or try to offer our attorney members CLE classes that satisfy elimination of bias requirements.


I believe there’s been litigation over this that has been rejected precisely because there hasn’t been a showing that there’s been viewpoint discrimination in these things. I don’t think there is anything stopping Josh Blackman from issuing -- or some law foundation creating a CLE that matches California and Illinois and Missouri’s requirements to deal with the elimination of bias and have an hour CLE about affirmative action cases or, say, the Harvard litigation that was recently decided in the First Circuit and is being taken to the Supreme Court. So without that viewpoint discrimination, I don’t think there’s First Amendment problem there.


Now, if the licensing board is saying “We’re only accepting classes in one direction,” I think you have a different story. If you look at the classes that are available, the vast majority of them are in one direction. I think that’s just a function of who’s deciding to create these classes rather than something the licensing board is doing. But if you have evidence of the licensing board refusing to permit classes that they feel have the wrong viewpoint, that might be a different story.


Caller 2:  Thank you. I think a class like that would be appreciated. Much appreciated. Thank you.


Evelyn Hildebrand:  Great. We’ll now move to our next caller. You have the floor.


Caller 3:  Good afternoon. Thank you for bringing this to my attention. I’m an attorney in Florida, but I’m licensed in Pennsylvania and New Jersey. And now I’m concerned with something that I may say or do in Florida representing one of my clients or taking a position such as it’s my client’s position such as blah, blah, blah -- that if somebody gets a bur under their saddle about me, they make a complaint against me and jeopardize my Pennsylvania license. This certainly concerns me. This rule basically would allow that to happen, right? If you could please comment on that. Thank you.


Ted Frank:  Yes, well, that’s absolutely the case. Adam is licensed in Pennsylvania and Washington, D.C., so things he does outside of Pennsylvania could be used against him in Pennsylvania and then reciprocally challenged in D.C. Now, the Pennsylvania rule did exclude advocacy, so something you said in a court filing is probably protected under Pennsylvania rules.


But conduct at a deposition might not be. So it absolutely would have been a concern had we not gotten the preliminary injunction against the enforcement of 8.4(g). So as of right now, it hasn’t taken effect, and they haven’t asked for a stay of that from the Third Circuit. So until the Third Circuit decides and issues a mandate -- and if we win in the Third Circuit, you don’t have to worry about it at all. But without a reversal by the Third Circuit in a mandate, at the moment you’re safe in Pennsylvania from that sort of unfair abuse of disciplinary action.


Evelyn Hildebrand:  Great. Thank you. We will move on to our next caller. You have the floor.


Caller 4:  Thank you, Ted. I just have one observation. With regard to whether the claim is ripe, once you’re in the process, you will be bound to the process because the argument will be that the process has to consider your constitutional arguments.


Ted Frank:  Right. That would have to be litigated in the Pennsylvania courts, but that is -- fortunately, the standing issues on First Amendment jurisprudence consider the irreparable injury of chilled speech, and that’s where we prevailed here. And that’s what’s going to be litigated in the Third Circuit.


Caller 4:  Yeah. I agree. The chilling is a silver bullet. Thank you.


Evelyn Hildebrand:  All right. We’ll move on to our next caller.


Edward Hruska:  Good morning or afternoon depending on where you’re at. This is Edward Hruska. I’m a lawyer in South Dakota. I had a couple of questions. This first -- are you aware of any other district court opinion similar to this in the various circuits?


Ted Frank:  I guess I should have made that clear. This was the first litigation on this issue, so this is a landmark.


Edward Hruska:  I say that because a similar rule came through South Dakota passed out of the Commission and the Bar and was ultimately not adopted by the state supreme court. So I was just curious on that point.


Ted Frank:  There are attorney general opinions out there. Texas and a few other attorneys general have issued opinions calling this unconstitutional, but this is the first court to rule on the question.


Edward Hruska:  I seem to recall Texas’ and maybe Alaska’s as well as being fairly in depth. But are you aware of -- or maybe you could speak to if this has any impact on a mandatory bar versus a voluntary bar association. I don’t know if it does, but it was one of those things that came up in our conversations in the state. Thank you for your presentation, too, by the way.


Ted Frank:  Thank you. Well, these would-be disciplinary rules, and some states have a bar association. Some states have a disciplinary board. But everybody has some sort of licensing procedure, and these are rules under the licensing procedure. Even states with voluntary bar associations still have the disciplinary board, and I think it’s a disciplinary board in Pennsylvania for example.


Evelyn Hildebrand:  Great. Perfect. We have another person who’s just joined the queue.


Caller 6:  Yes, good afternoon, sir. Thank you so much. I really appreciate you -- I’m not sure the appropriate metaphor is carrying the water or leading the charge on this. I emailed you separately to inquire whether or not you need pro hoc vice in any other jurisdictions if this arises.


But I had a related question. I’m wondering if you see any implications for this for hate crime or hate speech law general. It seems like there was some debate about the First Amendment implications of that as an aggregating factor. And it seems like some of that has sort of passed away, but I’m just curious if that’s something that’s crossed your mind or been involved in any of the litigation thus far.


Ted Frank:  Well, on hate speech, that was decided back when I was in law school or even before then in R. A. V. v. St. Paul, and so far, that hasn’t come back. Now, hate enhancements to my knowledge have been upheld as, well, this is a motivation that is especially concerning. Now, there are all sorts of public policy issues against that sort of thing.


And you could possibly complain about unequal enforcement of hate crime laws, but we’ve also seen in terms of the public policy some jurisdictions add hate towards police as a type of hate crime, which sort of shows the problems of -- the public policy problems of having a hate crime rule. And you can imagine other sort of enhancements in that regard. And law professors much smarter than I am have written about the constitutional implications of that. I’m not aware of any litigation pending on those issues that have specific problems -- that had specific problems, but that doesn’t mean that that litigation doesn’t exist.


Evelyn Hildebrand:  Okay. At this point, I did want to ask a question. I wanted to ask if the model rule were amended to take out the term “word” and if it were only related to conduct, does that completely get rid of the First Amendment situation since there’s some situations in some case law where the First Amendment does protect conduct, if it’s conduct that does communicate -- so if it’s conduct that’s protected? Or in your opinion, would deleting those words sufficiently cure the First Amendment problem?


Ted Frank:  No, I don’t think it cures the problem. Certainly having the words “words or conduct” in the Pennsylvania rule—which is not in the model rule. It’s just in the Pennsylvania rule—makes the problem more obvious, but it’s quite clear that the model rule, which only addresses conduct without having the word “words” addresses verbal conduct and protected speech. And we know from Texas v. Johnson and other cases that expressive conduct -- there’s conduct out there that has expressive ability or that has expressive content and, thus, First Amendment protections. And since that extends to things like nude dancing, it surely extends to things like Judge Jones’ talk to The Federalist Society at the University of Pennsylvania Law School.


Evelyn Hildebrand:  Wonderful. And to follow up on that -- I think you did touch upon this a little bit. If it does go up to the Supreme Court or depending on the outcome of the Third Circuit, what kind of outcome would you expect? Would the preliminary injunction be continued, or would the Pennsylvania Supreme Court be required to change the model or just to eliminate that whole subsection completely?


Ted Frank:  You know, if we prevail all the way and there’s a permanent injunction against it, that’s a whole other interesting issue. There’s no writ of nullification, writ of erasure that the court erases a law from the books. The law is still on the books until Pennsylvania decides to change it. And one hopes that they would change it to the extent that they actually want to address sexual harassment. They could create a narrowly tailored rule that -- they could issue a rule that narrowly targets sexual harassment as defined in --


Evelyn Hildebrand:  I apologize. Please continue.


Ted Frank:  I understand. So I would think that if Pennsylvania is permanently enjoined, they’ll want to revise the rule in a way that implies with the First Amendment. And they already had anti-discrimination rules on the books that nobody was challenging, and it was far from clear that there was any problem that needed a new rule.


I’m aware there was an opposing counsel in one of my cases who was completely unrelatedly suspended from the practice of law by the state of Illinois or whatever the Illinois ARDC that handles discipline for attorneys in Illinois because he had engaged in sexual harassment of his employees. Because of that, he faced discipline and was suspended from the practice of law, and that was years before the ABA even considered Model Rule 8.4(g). So it wasn’t clear to me what it was that this rule was adding other than the regulation of speech.


And I think there exist people out there who were upset that Judge Jones wasn’t disciplined after the complaints that were issued against her and thought that she should be. We’ve absolutely seen people try to shut down people on one side of the political spectrum -- their speech on these issues. And this is just another tool to do it.


Evelyn Hildebrand:  Absolutely. Thank you. That’s a great response. I would encourage the audience -- I believe one person had joined the queue a moment ago. You have the floor.


Caller 7:  Thank you. I’m an attorney in Wyoming. Has the panel of three judges been set yet for the Third Circuit panel?


Ted Frank:  No, it has not been set. It won’t be set until after the briefing is done, and that’s still months away.


Caller 7:  Thank you.


Ted Frank:  But I imagine whoever loses is going to want an en banc review.


Evelyn Hildebrand:  Great. Thank you. And we’ll now move to our next caller. You have the floor.


Caller 8:  Yes, I apologize. I asked a question earlier and got yanked away and didn’t get the response. So if you already covered this material, I apologize. But just a couple of quick questions, number one, have any of who I would normally have expected to be friendly amici joined in support?


Free speech was long a defensible goal of the ACLU supported, for example. And I was wondering maybe if they had chimed in in support. And then is there anything that you can share prudently about litigation strategy, depending upon possible outcomes in the Third Circuit, and then more broadly if it’s a question of pursuing similar claims either in state or federal court in other district or other jurisdictions generally?


Ted Frank:  Well, in terms of the ACLU, I hate to disappoint you, but the ACLU of today is not the ACLU of our childhood. If they come in on this, I don’t think they’ll be on the correct side. But there are other organizations out there that care about free speech that one would expect to participate as amici in the Third Circuit. Some of them have already reached out to us. I expect others to reach out to us after this phone call. And if this gets to the Supreme Court, even more will be interested just because it’s higher profile.


In terms of litigation strategy, we hope to make meritorious arguments and strong arguments and correct arguments. Our briefs on this are online. I don’t think we’re going to be surprised by what the other side says on appeal, so to a great extent what we’re going to say is already in the can. It’s de novo review, so it in many senses is going to be a replay of what’s out there. But maybe they’ll surprise us, or maybe we’ll see an amicus brief that will require us to -- against us that will require us to say something in our response brief that we hadn’t said previously.


In terms of future litigation, as I mentioned, we’re very excited by this victory. We’re absolutely interested in other First Amendment litigation. But we need people with standing. We can’t just show up in court. To the extent people affected by these rules whose speech is being chilled by these rules come to us, we’ll absolutely evaluate their cases, and if we think we have a good case against a rule that violates the First Amendment, we’ll be happy to bring it.


We might need local counsel in some of these places. None of us are admitted to Vermont as we are in Pennsylvania. But I’m confident that some noble attorney is willing to help us out on a pro bono or low bono basis.


Evelyn Hildebrand:  Wonderful. Thank you. At this point, we don’t have any more callers in the queue, so I will turn the floor back over to you, Ted, for some final thoughts before we close.


Ted Frank:  Well, I want to thank The Federalist Society for hosting this and the able work. I think this was the first moderation done by our able host, so I thank you for that. I thank the audience for putting up with me for this long. And like we said, we’re very interested in these issues, and we’d absolutely love to hear from you if you know people that want to support these sorts of things. We’re a non-profit public interest law firm and rely on generous donors to make us be able to continue to do these things.


Evelyn Hildebrand:  Wonderful. Thank you. And I do thank you for your patience, as well as our audience. On behalf of The Federalist Society, I want to thank our expert, Mr. Ted Frank, for the benefit of his valuable time and expertise today. And I want to thank our audience for calling in and participating. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.