Long time readers of this blog know I have been following the debate about Model Rule 8.4(g) since it was merely a proposal before within the ABA and that I have been critical of its text as being vulnerable to attack under the First Amendment. Only a few jurisdictions have adopted the rule, and almost all that have have amended the Model Rule’s text to try to improve its defects. Some versions are better than others, though, and there are still some cases out there litigating the validity of different states’ versions. For all my posts related to Model Rule 8.4(g) go here and scroll down (over several pages of posts).
One of those cases came to an end last week when the Court of Appeals for the Third Circuit reversed a decision from a District Court in Pennsylvania for lack of standing. The case is called Greenberg v. Lehocky, and you can read the opinion here.
This is important, and I will get back to it in a minute, but let me repeat it now: The decision of the Court of Appeals did NOT (as has been reported elsewhere) find that the rule in Pennsylvania is Constitutional. It simply found that the plaintiff did not have standing to challenge it and therefore that the lower court should not have decided the case to begin with.
But let’s not get ahead of ourselves and start at the beginning. Back in 2020, the Federal District Court for the Eastern District of Pennsylvania decided in Greenberg v. Haggerty, 491 F.Supp.3d 12 (ED PA 2020), that the Pennsylvania version of Rule 8.4(g) was unconstitutional because it violated the First Amendment. The plaintiff in that case, Greenberg, argued that the rule infringed on Constitutionally protected speech and created a chilling effect over his ability to speak publicly about matters of important public concern. The court agreed. I wrote about the opinion here, here and here.
Rather than wait for a decision on appeal, the State Bar abandoned the appeal and amended the rule. However, Greenberg challenged the new rule again, and it was again found unconstitutional and the State appealed. Now under the title Greenberg v. Lehocky, the challenge to the rule found its way up to the Court of Appeals for the Third Circuit and last week it issued its opinion dismissing the case for lack of standing. The court found that because the plaintiff was trying to get the court to rule on the constitutionality of the rule before there had been any attempt by the state to enforce it, the plaintiff needed to show that (a) the rule would apply to the type of speech the plaintiff was planning to engage in, and (b) that there was a credible threat of enforcement in a way that would violate the speaker’s Constitutional rights. And the court held that the plaintiff could not do either.
First, the court found that the Pennsylvania rule, unlike the Mode Rule, requires the state to show actual knowledge on the part of the lawyer and that the speech in question was targeted at specific individuals. Greenberg’s argument was based on the possibility that his discussion of controversial topics might lead someone who found his views objectionable to complain to the Bar. The court found that this possibility was not enough to support standing to sue over the yet to be enforced rule.
Second, the court found that the plaintiff could not show a credible threat of unconstitutional (future) enforcement of the rule because, somewhere along the timeline of the litigation, the State Bar affirmed that it would not enforce the rule for speech in the circumstances described by the plaintiff. As the court put it, the defendant “disavow[ed] enforcement for any of plaintiff’s planned conduct.”
Now, before we go any further, I have a question. What does that mean? Is it now a written policy of some sort that the Bar will not enforce the rule against unpopular speakers, or speakers that others complain about because they find them offensive? How can this “promise” by the Bar be enforceable? Is it written in the comment to the rule? Is it published as accepted policy by the state? What happens if the members of the disciplinary board change and they start enforcing the rule differently? Where is the record that says that the Board “disavowed” of this?
I am sorry but I don't like this. Unless this "statement" by the Bar that they will not abuse the discretion they have to enforce the rule comes with some enforceable mechanism against the possible misuse of the rule, I don't trust it. You can read my views on this type of argument here.
Interestingly, the court based its conclusion partly on the fact that the plaintiff could not show a pattern of enforcement of the rule against constitutionally protected speech. Yet, it recognized a case that proves that this practice is not only possible, but that it may support the argument that the fear of possible enforcement is valid. The speech for which a lawyer was disciplined in that case (from a different jurisdiction) was Constitutionally protected, and as I have discussed in this blog before, there are other examples out there. Not a lot, true, but enough for me to think that there may be a credible fear of enforcement, or, at least, that reasonable people might disagree on this. (I commented on the case the court cites when it was originally reported here.)
I will admit that my opinion on this is also based on my own personal experience working for a state and fearing that what I say in the classroom will result in negative consequences. The plaintiff in Greenberg made a similar argument, but the court said that that fear is based on the “political climate” in the country and not on the text of the rule.
Finally, back to the most important part of the decision and the lesson to learn from it.
It is important to note, again, that the court did not decide whether the rule is constitutional or unconstitutional. The court did not “uphold the constitutionality of the rule” (as I saw reported elsewhere).
In fact, the court explicitly states that all it can say is that it is too early to tell if the rule is unconstitutional. Essentially, it suggests we have to wait and see how the rule is interpreted, applied and enforced before we can pass judgment on that. And the concurring opinion goes further actually hinting that the rule might well be unconstitutional. Both suggest that one day a lawyer with standing will challenge the rule and then the court will have a chance to decide on the Constitutionality of the rule.
But the best lesson to learn in all this comes from the Concurring Opinion and that is that we can save ourselves the trouble by simply doing what I have been suggesting should be done from day one: take the time to draft a better rule!
A few other states have adopted rules similar to Model Rule 8.4(g) but explicitly stated (either in the text of the rule or its comment) that the rule will not apply to regulate Constitutionally protected speech. This solves the problem related to this question. (There may be other problems, but those are not for today.)
As I have discussed elsewhere, I think the best rule so far is the one recently adopted in New York. So, take note Pennsylvania, don’t wait for a lawyer with standing to start this fight again (a fight that the concurring judge says you will be fighting “against the current"). Listen to the concurring judge and fix the rule. Call me or call the folks in New York and ask them how to do it properly.
There is no reason to adopt a rule that is Constitutionally vulnerable ab initio (as the ABA did). There is a way to draft a better rule that addresses the problem of discrimination and harassment that does not violate the First Amendment. Just do it!
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