ABA Model Rule 8.4(g) Efforts in Pennsylvania
Status of Action in Pennsylvania
Status – The Supreme Court of Pennsylvania adopted a version of ABA Model Rule 8.4(g) in June 2020.
The Center filed an amicus brief in support of Zachary Greenberg’s Motion for Summary Judgement that the newest version of Pennsylvania’s Rule 8.4(g) is unconstitutional.
Less than a month after the Supreme Court of Pennsylvania adopted a new version of ABA Model Rule 8.4(g), Zachary Greenberg filed an amended complaint alleging that the new Rule 8.4(g) in Pennsylvania violates the First and Fourteenth Amendments.
On July 27, the Supreme Court of Pennsylvania adopted yet another revised version of ABA Model Rule 8.4(g). Justice Mundy dissented from the adoption of the new rule, stating that the proposed amendments did not “cure the Rule’s unconstitutional nature as articulated by Judge Kenny in Greenberg v. Haggerty, 491 F.Supp.3d 12 (E.D. Pa. 2020).” The Disciplinary Board of the Supreme Court of Pennsylvania submitted the revised rule to the court without holding a comment period, allegedly submitting it “without publication in the interests of justice and efficient administration pursuant to Pa.R.J.A. No. 103(a)(3).” This rule allows for the promulgation of proposed rules or amendments without public notice and comment “where exigent circumstances require the immediate adoption of the proposal.” As Professor Josh Blackman stated, there seems to be no exigent circumstances for bypassing the comment period.
The Disciplinary Board of the Supreme Court of Pennsylvania dropped its appeal to the Third Circuit. The Disciplinary Board had filed notice of appeal after losing in federal district court in December 2020.
Zachary Greenberg, the plaintiff in the lawsuit challenging Pennsylvania’s newly-adopted Rule 8.4(g), wrote a short article in which he discusses the case and explains his reasons for filing the lawsuit.
On December 7, the U.S. District Court for the Eastern District of Pennsylvania issued an Order and an accompanying Memorandum finding that Pennsylvania’s newly-adopted Rule of Professional Conduct Rule 8.4(g) violates the First Amendment and granting a preliminary injunction that temporarily enjoins the Disciplinary Board of the Supreme Court of Pennsylvania from enforcing the new rule. Josh Blackman, a law professor at South Texas College of Law, published an article summarizing the decision. First Amendment scholar and professor Eugene Volokh published an article on the opinion as well.
On August 6, the Hamilton-Lincoln Law Institute (HHLI) filed a lawsuit in the U.S. District Court, Eastern District of Pennsylvania, challenging the constitutionality of Pennsylvania’s newly-adopted Rule of Professional Conduct Rule 8.4(g). HHLI filed the suit on behalf of Pennsylvania attorney, Zachary Greenberg. The suit alleges that Mr. Greenberg works “for a non-profit organization that advocates on behalf of students’ constitutional rights, regularly speaks at Continuing Legal Education (“CLE”) and non-CLE events on a variety of hot-button legal issues including the constitutionality of hate speech regulation, Title IX’s effect on the Due Process rights of individuals accused of sexual assault and misconduct, campaign finance speech restrictions, university policies on fraternity and sorority misconduct, professorial academic freedom, university regulation of hateful expression online, attorney free speech rights, and abusive public records requests. Rule 8.4(g) threatens to impose civil sanction on [Mr. Greenberg] if an audience member misconstrues his speech as a manifestation of bias or prejudice and registers a complaint with the Office of Disciplinary Counsel.” The new Pennsylvania Rule 8.4(g) is set to take effect on December 8, 2020.
On June 8, the Pennsylvania Supreme Court issued an Order adopting a highly-modified version of ABA Model Rule 8.4(g). The new rule makes it professional misconduct for a lawyer to “in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination” against anyone. One justice dissented.
For almost four years, the Disciplinary Court of the Supreme Court of Pennsylvania (“Disciplinary Board”) has considered versions of ABA Model Rule 8.4(g). The Board previously decided not to forward the 2016 and 2018 proposed rules to the Supreme Court. Though having expressed some concern about possible First Amendment issues, both the Disciplinary Board and the Pennsylvania Supreme Court apparently forgot about those previous concerns when adopting this most recent version, as it contains a broad definition of the phrase “conduct in the practice of law.”
Additionally, though the rule lists twelve protected classes, the rule’s text states that it “include[es] but [is] not limited to” those classes. That is, “manifest[ing] bias” against anyone now exposes a Pennsylvania lawyer to disciplinary action.
Finally, the standard by which Pennsylvania lawyers will be judged varies by their locality, as the rule provides that the terms “bias,” “prejudice,” “harassment,” or “discrimination” “are defined in applicable federal, state, or local statues or ordinances.”
Professor Josh Blackman wrote an excellent article summarizing the history of the Rule 8.4(g) proposals in Pennsylvania and critiquing the adopted rule.
Christian Legal Society filed, on September 30, a comment letter with the Disciplinary Board of the Pennsylvania Supreme Court opposing the proposed changes to Rule 8.4 of the Pennsylvania Rules of Professional Conduct.
On September 4, the Disciplinary Board of the Pennsylvania Supreme Court announced it was holding a public comment period on a proposed change to Rule 8.4 of the Pennsylvania Rules of Professional Conduct. The proposed change would add new subsection (g), which addresses harassment and discrimination. This announcement by the Disciplinary Board follows a notice of the proposed amendment published in The Pennsylvania Bulletin on August 31, 2019.
Any interested parties may submit comments by email to Dboard.email@example.com, by mail to the Executive Office, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, or by facsimile to number (717-231-3381). Comments must be received on or before September 30, 2019, to be considered. Two quick ways to comment are (1) by signing and emailing this Pennsylvania comment letter, which provides the basic common-sense reasons for opposing the proposed rule change; or (2) sending a short letter or email simply stating that you oppose changing Pennsylvania Rules of Professional Conduct Rule 8.4 to include ABA Model Rule 8.4(g). CLS has prepared a background document that provides background on ABA Model Rule 8.4(g) and why the Pennsylvania should not adopt the proposed rule.
After extensive review and discussion of the comments and suggestions received during the comment period from December 2016 to February 2017, the Disciplinary Board of the Pennsylvania Supreme Court determined not to move forward with the proposed amendments to Pennsylvania Rule of Professional Conduct 8.4 and instead renewed its study of the issue. On July 27, 2018, Christian Legal Society submitted a comment letter to the Disciplinary Board of the Supreme Court of Pennsylvania urging it not to adopt its newly Proposed Rule 8.4(g). Josh Blackman, Associate Professor at South Texas College of Law Houston, also submitted a comment letter opposing adoption of Proposed Rule 8.4(g).
Kim Colby wrote a Federalist Society blogpost on the unconstitutionality of the proposed rule that the Board is considering.
On May 19, 2018, after a “renewed look at the matter,” the Disciplinary Board of the Pennsylvania Supreme Court published new Proposed Amendments to the Pennsylvania Rules of Professional Conduct Regarding Misconduct.
Christian Legal Society filed a comment letter with the Disciplinary Board of the Pennsylvania Supreme Court supporting its proposed amendments (with two additional changes) and opposing ABA Model Rule 8.4(g).
The Disciplinary Board of the Supreme Court of Pennsylvania is considering amending its current Rule 8.4. The Board gave notice on December 3, 2016 that it was considering recommending to the Pennsylvania Supreme Court amendments to Pennsylvania Rule of Professional Conduct 8.4. The Board is accepting comments until February 3, 2017.
At the same time, the Pennsylvania Bar Association Women in the Profession Committee (“WIP”), with the support of other Pennsylvania Bar Association entities, is circulating a separate proposal for amending Rule 8.4. This second proposal is essentially ABA Model Rule 8.4(g).
Proposed Rule Changes in Pennsylvania
Old Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or,
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
 Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client of action the client is lawfully entitled to take.
 Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
 A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.
 Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
2019 Disciplinary Board Proposed Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(g) in the practice of law, by words or conduct, 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 1.16. This paragraph does not preclude advice or advocacy consistent with these Rules.
 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.
 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.
2016 Disciplinary Board Proposed Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(g) violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer’s fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer’s fitness as a lawyer shall be determined after consideration of all the circumstances, including: the seriousness of the act; whether the lawyer knew that the act was prohibited by statute or ordinance; whether the act was part of a pattern of prohibited conduct; and whether the act was committed in connection with the lawyer’s professional activities. If there is an alternative forum available to bring a complaint, no charge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawful discriminatory act, and the finding of the court or administrative agency has been exhausted.
2016 WIP Proposed Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(g) engage in conduct the lawyer knows is harassment or discrimination as those terms are defined in applicable, federal, state or local statute or ordinance, on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. 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 legitimate advice or advocacy consistent with these Rules.
 Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g). This Rule does not serve to expand upon or limit a claimant’s available rights or remedies under other law governing harassment or discrimination.
 Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.
 A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b) and (c). This Rule does not require a lawyer to accept or reject the representation of any prospective client who is a member of any pf the referenced classifications. A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).