HARRISBURG (Aug. 29, 2023) – Pennsylvania Bar Association (PBA) President Michael J. McDonald has issued the following statement in response to the United States Court of Appeals for the Third Circuit determination in the challenge, known as Greenberg v. Lehocky, to Rule 8.4(g) of the Pennsylvania Rules of Professional Conduct:
“The Pennsylvania Bar Association, along with the Philadelphia Bar and Allegheny Bar associations, has been in full support of the Supreme Court of Pennsylvania’s implementation of Rule of Professional Conduct 8.4(g) prohibiting a practicing lawyer from knowingly engaging in conduct that constitutes harassment or discrimination based on race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status or socioeconomic status. The three largest bar associations in Pennsylvania submitted an amicus brief in the Third Circuit in support of the implementation of the anti-discrimination rule.
“A Third Circuit panel has appropriately accepted our arguments that Mr. Greenberg lacked standing to pursue a facial challenge to Rule 8.4(g), thereby clearing the path for the Supreme Court of Pennsylvania to implement the rule. The Third Circuit concluded that Greenberg’s speech is not chilled by Rule 8.4(g) because he faces no credible threat that the rule will be enforced against him.
“The PBA and other bars have consistently supported efforts by the Disciplinary Board to amend the misconduct rule to prohibit serious acts of bias, prejudice, harassment and discrimination in the practice of law.
“In 2016, the PBA House of Delegates expressed support for the adoption of a prohibition of knowing harassment and discrimination in the practice of law, in a recommendation cosponsored by the PBA’s Commission on Women in the Profession and the Legal Ethics and Professional Responsibility Committee, among other committees and sections.
“In June of 2020, the Supreme Court adopted a version of Rule 8.4(g) that was later challenged in federal court, resulting in a December 2020 ruling enjoining the enforcement of the rule when it was slated to go into effect.
“The Disciplinary Board appealed that ruling, and in March of 2021, withdrew that appeal with the intention to propose an amended rule taking the district court’s ruling into account. In the meantime, several other states have moved forward with anti-discrimination rules.
“In July of 2021, the PBA commended the Supreme Court of Pennsylvania for acting properly and deliberately in amending the existing misconduct rule as to provide a meaningful disciplinary avenue for misconduct that should no longer be tolerated in the practice of law.”