The Volokh Conspiracy
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Pennsylvania Supreme Court Adopts Revised Rule 8.4(g), Without Seeking Public Comment, Over Dissent
Justice Mundy in dissent: "The proposed amendments fail to cure the Rule's unconstitutional nature."
In December, Judge Kenney (EDPA) declared unconstitutional Pennsylvania's version of ABA Model Rule 8.4(g) in Greenberg v. Haggerty. The judge reiterated points that Eugene Volokh and I have been making for years: this rule may be well intentioned, but it violates the Free Speech Clause of the First Amendment.
In January, the Pennsylvania Bar filed a notice of appeal to the Third Circuit. But in March, the Bar surrendered. It voluntarily dismissed the appeal. At the time, I speculated that "the Pennsylvania Bar will presumably try to draft a constitutional version of the rule." And so they did.
On July 26, the Pennsylvania Supreme Court approved a revised version of ABA Model Rule 8.4(g).
The Court bypassed the usual public comment period. The order states that the Disciplinary Board of the Supreme Court of Pennsylvania submitted the proposal "without publication in the interests of justice and efficient administration pursuant to Pa.R.J.A. No. 103(a)(3)." This rule allows the Court to avoid the comment period "where exigent circumstances require the immediate adoption of the proposal." From my vantage point, I don't see any exigent circumstances. The Bar has already held three comment periods over the course of a few years. Now a court has declared the rule unconstitutional. It would have been prudent to ask the public for some feedback. Alas, the Court threw caution to the wind, and went it alone.
Justice Mundy dissented from the order. She wrote:
I dissent from the adoption of the Rule of Professional Conduct 8.4(g) in its current form and scope. In my view, the proposed amendments fail to cure the Rule's unconstitutional nature as articulated by Judge Kennedy in Greenberg v. Haggerty, 491 F.Supp.3d 12 (E.D. Pa. 2020).
I have transcribed the Court's order. (Please judges, stop scanning printed-out PDFs. You make it very difficult for bloggers). Additions are in bold and underlined. Deletions are in bold and bracketed.
Here is revised Rule 8.4(g):
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
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(g) in the practice of law, knowingly engage in [by words or] conduct constituting [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 1.6. This paragraph does not preclude advice or advocacy consistent with these Rules.
Here is the adopted rule, without the redline:
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
***
(g) in the practice of law, knowingly engage in conduct constituting harassment of 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 1.6. This paragraph does not preclude advice or advocacy consistent with these Rules.
I see three primary changes.
First, the rule adds a mens rea element: "knowingly." Scienter helps address some of the constitutional doubts. But this change is the only positive revision.
Second, the rule explains that only conduct can be prohibited, but not words. Sounds good. Alas, in Comment 3 (discussed below) we learn that "conduct" includes "speeches, communications, debates, presentations" at CLE events. This second change is window dressing. Words are still prohibited.
Third, the rule removes reference to "bias or prejudice." Once again, sounds good. Alas, Comment 4 (also discussed below) makes it misconduct to "denigrate" or "show . . . aversion." Again, window dressing. I don't see any meaningful changes in the rule itself.
The Court revised Explanatory Comment 3, which defined "conduct in the practice of law":
[3] For the purposes of paragraph (g), conduct in the practice of law includes [participation in activities that are required for a lawyer to practice law, including but not limited to continuing legal education seminars, bench bar conferences and bar association activities where legal education credits are offered] (1) interacting with witnesses, coworkers, court personnel, lawyers or others, while appearing in proceedings before a tribunal or in connection with the representation of a client; (2) operating or managing a law firm or law practice; or (3) participation in judicial boards, conferences or committees; continuing legal education seminars; bench bar conferences; and bar association activities where legal education credits are offered. The term "the practice of law" does not include speeches, communications, debates, presentations, or publications given or published outside the contexts describe in (1)-(3).
I am perplexed by this revision. Rule 8.4(g) is most vulnerable on the grounds that it applies to speeches and debates at CLE events. And those contexts are expressly covered by the phrase "conduct in the practice of law." I don't see how the revision to Comment 3 removes the constitutional problems with the rule. Moreover, it isn't clear why the Court would even have authority to regulate contexts outside of 1-3. They aren't omnipotent.
The Court added a new Explanatory Comment 4, which defines "harassment."
[4] "Harassment" means conduct that is intended to intimidated, denigrate, or show hostility or aversion toward a person on any of the bases listed in paragraph (g). "Harassment" includes sexual harassment, which includes but is not limited to sexual advances, requests for sexual favors, and other conduct of a sexual nature that is unwelcome.
Again, it seems the Court replaced the phrase "manifest bias or prejudice" with "denigrate, or show hostility or aversion." I see no meaningful difference. These terms have no clear meaning in the law. To "manifest bias" is no different than to "denigrate" or to "show . . . aversion." The First Amendment protects offensive, denigrating, and biased speech.
The Court also added a new Explanatory Comment 5, which defines "discrimination."
[5] "Discrimination" means conduct that a lawyer knows manifests an intention: to treat a person as inferior based on one or more of the characteristics listed in paragraph (g); to disregard relevant considerations of individual characteristics or merit because of one or more of the listed characteristics; or to cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics.
This rule seems to go even further than the definition of "harassment." Treating a person "as inferior" is a far cry from blackletter discrimination law. Once again, mere offensive speech is punished. And I don't even know what it means to "disregard relevant considerations of individual characteristics or merit." The Court is making stuff up on the fly. Indeed, the Court deleted what was Explanatory Comment 4:
[[4] The substantive law of antidiscrimination and anti-harassment statutes and case law guide application of paragraph (g) and clarify the scope of the prohibited conduct.]
This rule is absolutely untethered from any state or federal anti-discrimination law. Attorneys in Pennsylvania have no basis to know how this rule would be enforced. The Court has adopted anti-racist principles in the context of a contentious ethics rule.
This revision will not survive constitutional scrutiny. The changes do not address the problems Judge Kenney identified. In several regards, this rule is even worse than the prior rule–especially Comment 5 about "Discrimination." Justice Mundy is absolutely correct.
And shame on the Pennsylvania Supreme Court for citing "exigent circumstances" to bypass the normal review process. Perhaps the public would have offered useful commentary, and highlighted some of these obvious constitutional errors. Alas, the Court preferred a black box, with zero public input. Next stop, EDPA.
I'm sorry my friends at the Hamilton Lincoln Law Institute will have to spend their time seeking another preliminary injunction. But hopefully they will get their fees paid promptly.