U.S. Appeals Court Revives Pennsylvania Anti-Harassment Rule for Lawyers, Rejecting Constitutional Challenge

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The 3rd Circuit U.S. Court of Appeals has breathed new life into a Pennsylvania anti-harassment and anti-discrimination professional rule for lawyers. This decision, delivered on Tuesday, marks a reversal of a federal judge’s earlier ruling and dismisses a lawsuit that had challenged the rule’s constitutionality.

The lawsuit had been filed by Zachary Greenberg, an attorney associated with the non-profit Foundation for Individual Rights and Expression. The court’s decision underscores the view that Greenberg failed to demonstrate that the professional conduct rule in question posed a legitimate threat to his free speech rights.

The essence of Greenberg’s claim rested on the assertion that the professional conduct rule, which closely mirrors a counterpart from the American Bar Association, could potentially infringe upon his ability to engage in presentations discussing offensive and derogatory language. However, the appeals court found this argument unsubstantiated, asserting that Greenberg’s planned speeches did not even approach the threshold of conduct that the rule sought to prohibit.

  

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The appeals court panel highlighted that the rule exclusively addresses deliberate and intentional instances of harassment or discrimination against individuals. Consequently, the panel determined that Greenberg’s intended speeches were not within the ambit of the rule’s provisions.

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The court’s verdict serves as a victory for Pennsylvania’s attorney disciplinary board, which had introduced the rule in 2020 and subsequently made amendments following Greenberg’s initial legal challenge. The board’s actions were driven by the desire to address concerns raised during the litigation process. However, in March 2022, U.S. District Judge Chad Kenney declared an amended version of the rule unconstitutional.

In response to this setback, the attorney disciplinary board enlisted the services of experienced appellate advocate Lisa Blatt, a member of Williams & Connolly, to represent their interests during the proceedings before the 3rd Circuit.

The rule, which had garnered support from the American Bar Association and other legal associations, aimed to curb instances of harassment and discrimination on the basis of factors such as race, sex, and religion. While it enjoyed backing from certain quarters, the rule also faced opposition from conservative, religious, and civil rights groups. Critics argued that the rule’s provisions were open to misuse and misinterpretation.

In a concurring opinion, Judge Thomas Ambro suggested that Pennsylvania’s anti-harassment rule might still be vulnerable to future constitutional challenges, contingent upon a lawyer establishing the necessary standing to mount such a challenge. Ambro proposed that the state could proactively mitigate this risk by refining the scope of its anti-harassment rule.

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The decision brings into focus the intricate balance between free speech rights and professional standards within the legal realm. While acknowledging the importance of addressing potential instances of harassment and discrimination, the appeals court’s ruling reaffirms the significance of upholding robust free speech rights, particularly in the context of legal discourse and presentations on sensitive subjects.

This ruling is poised to have a lasting impact within Pennsylvania’s legal community and the broader legal landscape across the United States. It underscores the complexities of regulating attorney conduct while safeguarding fundamental constitutional rights, inviting further deliberation and potential adjustments in legal professional standards in the future.

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