Amicus Brief: Greenberg v. Lehocky

Zachary Greenberg, a Pennsylvania-licensed attorney, sued to block enforcement of Rule 8.4(g) of the Rules of Professional Conduct for Pennsylvania, an ethics rule that threatened to chill Greenberg’s speech. The rule is based on a controversial American Bar Association model rule and says that a lawyer cannot “knowingly engage in conduct constituting harassment or discrimination” based on grounds including race, sex, gender identity, and religion. In March 2022, a federal district judge invalidated the rule, finding that it ran afoul of constitutional speech protections and was “unconstitutionally vague.” Indeed, Rule 8.4(g) has been criticized by leading First Amendment scholars on precisely the same grounds that the district court cited: that it would subject lawyers to discipline for protected political (and other) speech.

After the district court preliminarily enjoined Rule 8.4(g), the Disciplinary Board of the Supreme Court of Pennsylvania elected to revise it. The new version shares many of the problems that Greenberg complained about because it purports to regulate speech having little to do with the practice of law. The new rule, which did not go through the normal notice and comment procedure, was passed over the dissent of state supreme court justice Sallie Updyke Mundy, who wrote that the “amendments fail to cure the Rule’s unconstitutional nature.” Without materially altering his complaint, Greenberg amended it to recount the new version of the rule and to extend his First and Fourteenth Amendment claims.

The district court, essentially agreeing with Justice Mundy, granted summary judgment for Greenberg. The Disciplinary Board appealed to the Third Circuit, which reversed Greenberg’s victory, holding that he lacked standing to challenge the new rule. Greenberg now seeks Supreme Court review, arguing that the Third Circuit erred in looking to Greenberg’s amended complaint to establish his standing rather than his original complaint—and that the panel improperly applied standing analysis rather than a mootness analysis with respect to the mid-suit intervening events. Had the court applied the correct test, defendants would have failed to meet their “heavy burden” to establish that the case was moot.

The Manhattan Institute, joined by three other groups and civil-rights lawyer Hans Bader, has filed an amicus brief that builds on our previous filing in the Third Circuit, arguing that the attorney regulation violates the First Amendment because it (1) punishes speech that's not “severe or pervasive” enough to create a hostile work environment under federal and state employment law; (2) punishes constitutionally protected speech; and (3) doesn't give fair warning, setting up an arbitrary enforcement regime.

Acknowledgments: Special thanks to law school associate Steven Arthur.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

Photo: Philippe TURPIN/Photononstop via Gett Images