HLLI Challenges Constitutionality of Pennsylvania Rule 8.4(g)

The Hamilton-Lincoln Law Institute files suit in EDPA on behalf of a FIRE attorney who speaks at CLE events on "hot-button legal issues."

|The Volokh Conspiracy |

In June, Pennsylvania adopted a variant of ABA Model Rule 8.4(g). (I wrote a letter in opposition to that proposal, as well as similar proposals in other states). Today, the Hamilton Lincoln Law Institute (HLLI) filed a suit challenging the constitutionality of that rule. HLLI represents Zachary Greenberg, and attorney from FIRE. The complaint turns entirely on Free Speech concerns, and does not implicate Free Exercise or RFRA claims.

The suit explains:

Zachary Greenberg, a Pennsylvania-licensed attorney working for a non-profit organization that advocates on behalf of students' constitutional rights, regularly speaks at Continuing Legal Education ("CLE") and non-CLE events on a variety of hot-button legal issues including the constitutionality of hate speech regulation, Title IX's effect on the Due Process rights of individuals accused of sexual assault and misconduct, campaign finance speech restrictions, university policies on fraternity and sorority misconduct, professorial academic freedom, university regulation of hateful expression online, attorney free speech rights, and abusive public records requests. Rule 8.4(g) threatens to impose civil sanction on Plaintiff if an audience member misconstrues his speech as a manifestation of bias or prejudice and registers a complaint with the Office of Disciplinary Counsel.

This is the first constitutional challenge to a variant of Model Rule 8.4(g).

In light of recent events, and a formal ABA opinion on the rule, I suspect more states will look to adopt the rule. If the HLLI suit is unsuccessful, those states will be emboldened to adopt Rule 8.4(g). If the HLLI suit is successful, other states will have to alter plans of accepting the rule.

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  1. (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

    1. FWIW, the version of the rule actually adopted by PA (as opposed to the model rule) specifically mentions “words,” not just conduct, and has an official comment extending the scope of the rule to cover CLEs, not just the actual practicing of law for a client.

      1. Good to point out.

  2. I encourage you to find a copy editor, Prof. Blackman. It would enable you to avoid at least some of the embarrassment these messages generate.

  3. Rule 8.4(g) threatens to impose civil sanction on Plaintiff if an audience member misconstrues his speech as a manifestation of bias or prejudice and registers a complaint with the Office of Disciplinary Counsel.

    Kristoff put down his newspaper. Things were not going well in Nazi Germany. Neither faction was pleasant, and he was at a loss.

  4. Pennsylvania’s rule 8.4(g):

    > (g) in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude advice or advocacy consistent with these Rules.

    Does the ban on “discrimination based upon…socioeconomic status” mean that lawyers can’t select clients based on their ability to pay?

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