Greenberg v. Lehocky

81 F.4th 376

Zachary GREENBERG v. Jerry M. LEHOCKY, in his official capacityas Board Chair of the Disciplinary Board of the Supreme Court of Pennsylvania;Dion G. Rassias, in his official capacity as Board Vice-Chair ofthe Disciplinary Board of the Supreme Court of Pennsylvania;Joshua M. Bloom, in his official capacity as Member ofthe Disciplinary Board of the Supreme Court of Pennsylvania;Celeste L. Dee, in her official capacity as Member ofthe Disciplinary Board of the Supreme Court of Pennsylvania;Laura E. Ellsworth, in her official capacity as Member ofthe Disciplinary Board of the Supreme Court of Pennsylvania;Christopher M. Miller, in his official capacity asMember of the Disciplinary Board of the Supreme Court of Pennsylvania;Robert J. Mongeluzzi, in his official capacity as Member ofthe Disciplinary Board of the Supreme Court of Pennsylvania;Gretchen A. Mundorff, in her official capacity as Member ofthe Disciplinary Board of the Supreme Court of Pennsylvania;John C. Rafferty, Jr., in his official capacity as Member ofthe Disciplinary Board of the Supreme Court of Pennsylvania;Hon. Robert L. Repard, in his official capacity as Member ofthe Disciplinary Board of the Supreme Court of Pennsylvania;David S. Senoff, in his official capacity as Member ofthe Disciplinary Board of the Supreme Court of Pennsylvania;Shohin H. Vance, in his official capacity as Member ofthe Disciplinary Board of the Supreme Court of Pennsylvania;Thomas J. Farrell, in his official capacity as Chief Disciplinary Counsel ofthe Office of Disciplinary Counsel; Raymond S. Wierciszewski,in his official capacity as Deputy Chief Disciplinary Counsel ofthe Office of Disciplinary Counsel, Appellants

No. 22-1733

United States Court of Appeals, Third Circuit

Argued: April 13, 2023

Filed: August 29, 2023

On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 2-20-cv-03822 (District Judge: Honorable Chad F. Kenney)

Lisa S. Blatt [ARGUED], Aaron Z. Roper, Amy M. Saharia, Peter Jorgensen, Williams & Connolly, 680 Maine Avenue SW, Washington, DC 20024, Counsel for Appellants

Omar Gonzalez-Pagan, Ethan Rice, Lambda Legal, 120 Wall Street, 19th Floor, New York, NY 10005, Karen Loewy, Lambda Legal, 1776 K Street NW, 7th Floor, Washington, DC 20006, Counsel for Amicus Appellant Lambda Legal Defense & Education Fund Inc.

Abraham C. Reich, Robert S. Tintner, Beth L. Weisser, Fox Rothschild, 2000 Market Street, 20th Floor, Philadelphia, PA 19103, Counsel for Amicus Appellant American Bar Association

Carmen G. Iguina Gonzalez, Joshua A. Matz, Raymond P. Tolentino, Kaplan Hecker & Fink, 1050 K Street NW, Suite 1040, Washington, DC 20001, Counsel for Amicus Appellants Stephen Gillers and Barbara S. Gillers

Joshua J.T. Byrne, Marshall Dennehey Warner Coleman & Goggin, 2000 Market Street, Suite 2300, Philadelphia, PA 19103, Counsel for Amicus Appellants Rebecca Aviel, Myles V. Lynk and Ann Ching

Brittany C. Armour, Hogan Lovells US, 1735 Market Street, 23rd Floor, Philadelphia, PA 19103, German A. Gomez, Hogan Lovells US, 555 Thirteenth Street NW, Columbia Square, Washington, DC 20004, Counsel for Amicus Appellants Hispanic National Bar Association, National Asian Pacific American Bar Association, Asian Pacific American Bar Association of Pennsylvania, National Bar Association, National Native American Bar Association, National LGBTQ+ & Bar Association, and National Association of Women Lawyers

Thomas G. Wilkinson, Jr., Cozen O'Connor, 1650 Market Street, One Liberty Place, Suite 2800, Philadelphia, PA 19103, Counsel for Amicus Appellants Pennsylvania Bar Association, Philadelphia Bar Association, Allegheny Bar Association, and Interbranch Commission for Racial Gender and Ethnic Fairness

Theodore H. Frank, Adam E. Schulman [ARGUED], Hamilton Lincoln Law Institute, 1629 K Street NW, Suite 300, Washington, DC 20006, Counsel for Appellee

Ilya Shapiro, Manhattan Institute, 52 Vanderbilt Avenue, New York, NY 10017, Counsel for Amicus Appellee Manhattan Institute, Bader Family Foundation, Hans Bader

Eugene Volokh, UCLA School of Law, 385 Charles E. Young Drive, Los Angeles, CA 90095, Counsel for Amicus Appellee Women's Liberation Front, Concerned Woman for America

Richard A. Samp, New Civil Liberties Alliance, 1225 19th Street NW, Suite 450, Washington, DC 20036, Counsel for Amicus Appellee New Civil Liberties Alliance

John J. Bursch, Alliance Defending Freedom, 440 First Street NW, Suite 600, Washington, DC 20001, Jacob P. Warner, Alliance Defending Freedom, 15100 N 90th Street, Scottsdale, AZ 85260, Counsel for Amicus Appellee Alliance Defending Freedom

Randall L. Wenger, Independence Law Center, 23 N Front Street, Harrisburg,

PA 17101, Counsel for Amicus Appellees Independence Law Center and First Liberty Institute

L. Theodore Hoppe, Suite 215, 25 W. Second Street, Second Flr., Media, PA 19063, Counsel for Amicus Appellee Christian Legal Society

Reilly Stephens, Liberty Justice Center, 440 N Wells Street, Suite 200, Chicago, IL 60654, Daniel R. Suhr, National Center for Justice & Liberty, 747 N Jackson Street, Suite 210, Chicago, IL 60654, Counsel for Amicus Appellees Bruce A. Green and Rebecca Roiphe

Deborah J. Dewart, 111 Magnolia Lane, Hubert, NC 28539, Counsel for Amicus Appellee Institute for Faith and Family

Ethan Blevins, Pacific Legal Foundation, 555 Capitol Mall, Suite 1290, Sacramento, CA 95814, Counsel for Amicus Appellee Pacific Legal Foundation

Johanna E. Markind, #280, 18 Maple Avenue, Barrington, RI 02806, Counsel for Amicus Appellee Legal Insurrection Foundation

Steven W. Fitschen, National Legal Foundation, 524 Johnstown Road, Chesapeake, VA 23322, Counsel for Amicus Appellees National Legal Foundation, Pacific Justice Institute, and Justice & Freedom Law Center

Larry L. Crain, Crain Law Group, 5214 Maryland Way, Suite 402, Brentwood, TN 37027, Counsel for Amicus Appellee Patrick G. Gould

Before: CHAGARES, Chief Judge, SCIRICA, and AMBRO, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

The Supreme Court of Pennsylvania amended Pennsylvania Rule of Professional Conduct 8.4 to prohibit harassment and discrimination in the practice of law. Plaintiff Zachary Greenberg is a Pennsylvania-licensed attorney who regularly gives continuing legal education presentations about First Amendment protections for offensive speech. His presentations involve quoting offensive language from judicial opinions and discussing arguably controversial topics. Greenberg fears his speech at these presentations will be interpreted as harassment or discrimination under the Rule. He alleges the Rule violates the First Amendment and is unconstitutionally vague. The District Court agreed with him and enjoined enforcement of the Rule.

We determine Greenberg lacks standing to bring his challenge. Rule 8.4(g) does not generally prohibit him 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. We will reverse.

I.

The Pennsylvania Constitution vests the Pennsylvania Supreme Court with the power to regulate the practice of law in the Commonwealth. Pa. Const. art. V, § 10(c). To carry out this responsibility, the Pennsylvania Supreme Court enacts the Pennsylvania Rules of Professional Conduct for all attorneys licensed in the jurisdiction and empowers the Disciplinary Board of the Supreme Court of Pennsylvania to regulate the conduct of Pennsylvania attorneys according to those Rules.

Anyone may file a complaint against a Pennsylvania-licensed attorney for violating the Rules of Professional Conduct. Within the Disciplinary Board, the Office of Disciplinary Counsel investigates such complaints. If the Office of Disciplinary Counsel determines a complaint is frivolous or that policy or prosecutorial discretion warrants dismissal, it may dismiss the complaint without requesting a response from the attorney. From 2016-2018, the Office of Disciplinary Counsel dismissed 87% of complaints without requesting a response from an attorney. If an investigation finds that attorney discipline may be appropriate, the recommendation is reviewed by the Chief Disciplinary Counsel. The Chief Disciplinary Counsel directs the Office of Disciplinary Counsel's interpretation of the Rules of Professional Conduct and must grant express approval for any disciplinary recommendation. Depending on the disposition and severity of the reprimand, the Office of Disciplinary Counsel's disciplinary recommendations may proceed to a hearing, with de novo review by the Disciplinary Board and ultimately the Pennsylvania Supreme Court. Generally, investigations into attorney discipline are kept confidential and details are only made public after the Board pursues discipline. Pa. Disciplinary Bd. R. 93.102 (2022); Pa. R. Disciplinary Enf't 402(a) (2022).

The regulation of harassment or discrimination by attorneys has evolved over the decades. In 1983, the American Bar Association (ABA) first adopted the Model Rules of Professional Conduct. These rules are not binding on attorneys but serve as a model for states to form their own rules of conduct.

Model Rule 8.4 specifies, among other things, that it is "professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." Model Rules of Pro. Conduct r. 8.4(d) (Am. Bar Ass'n 2016). In 1998, the ABA adopted a comment to Model Rule 8.4 clarifying that it was professional misconduct for an attorney to "knowingly manifest[ ] by words or conduct, bias or prejudice" based on certain protected characteristics.¹ Model Rules of Pro. Conduct r. 8.4 cmt. 2 (Am. Bar Ass'n 1998). But the scope of that comment was limited to words or conduct "in the course of representing a client" that "are prejudicial to the administration of justice." Id.

In 2014, to advance its goal of eliminating bias in the legal profession, the ABA began...