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As fight intensifies against lawyer harassment and bias rules, lawyer groups fight back harshly
Sep 14 (Reuters) – Don’t discriminate. Do not harass.
As rules of conduct for the practice of law, neither seems particularly binding to me. “Creepy bigot” isn’t a good look for anyone, let alone an officer in the justice system.
But the reprimands are at the heart of an escalating battle in Pennsylvania and beyond bar rules against lawyers’ First Amendment rights.
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More than a dozen bar associations and legal ethics experts filed amicus curiae briefs this week with the 3rd U.S. Circuit Court of Appeals, where a fight is underway over a new rule that prohibits Pennsylvania attorneys from “knowingly” engaging in conduct that constitutes harassment or discrimination in the practice of law.
Offering an unqualified defense of the rule, the amici argue that U.S. District Judge Chad Kenney in Philadelphia erred in finding it an unconstitutional violation of free speech that amounted to “overzealous oversight by lawyers.” .
This is not the case, retorted the American Bar Association in comments by Fox Rothschild Partner Abraham Reich and ABA President Deborah Enix-Ross. “There is no constitutional right to engage in discrimination or harassment in the practice of law (or elsewhere),” they wrote. “This governmental interest – to preserve the integrity of the legal system by eliminating unlawful discrimination and harassment – is of the utmost importance to society.”
Whether such conduct occurs while representing a client, working in a law firm, or attending a CLE course, the rule emphasizes that it is unacceptable and can result in a series of disciplinary actions up to the radiation.
The rule, based on one enacted by the ABA in 2016, comes at a time when the legal profession is coming under increasing scrutiny for its lack of diversity and the lagging advancement of women.
The confrontation has the hallmarks of a potential fight in the United States Supreme Court.
The defendant – the Pennsylvania Supreme Court Disciplinary Board – threw down the gauntlet when it hired Lisa Blatt, head of Williams & Connolly’s Supreme Court and appellate practice, as lead counsel.
In a Contract dated April 29, 2022, obtained by my Reuters colleague Mike Scarcella, the Ethics Committee agreed to pay Williams & Connolly a flat fee of $200,000 for the 3rd Circuit appeal, adding that if the matter ” involved work on the Supreme Court of the United States, we will negotiate a fee agreement in good faith.
Blatt and the Disciplinary Board declined to comment.
Adam Schulman, an attorney at Hamilton Lincoln Law Institute representing plaintiff Zachary Greenberg, told me that he and his colleagues, including Theodore Frank, were fully committed to taking the case to the highest court.
As call fight approached, Schulman praised ‘well-reasoned’ opinion by Kenney, who was nominated by former President Donald Trump and took the bench in 2018.
Schulman’s client, Greenberg, is a senior program officer at the Foundation for Individual Rights and Expression, or FIRE. He has written and spoken at CLE (and non-CLE) events on “burning legal issues” such as the constitutionality of regulating hate speech and due process protections for students accused of sexual misconduct. , according to the complaint.
Greenberg says he fears an offended member of the public “would file a disciplinary complaint against him based on the content of his presentation” – forcing him to refrain from speaking on controversial topics in violation of his rights to the first amendment.
Kenney agreed, writing that the rule, which was passed in 2020 and amended in 2021 in response to Greenberg’s original complaint, “floats in the sea of whatever the majority finds offensive at the time.”
Blatt in a Short filed last week and the amici in theirs languished in their assessment than the district court, as legal ethics experts Stephen and Barbara Gillers Put the“missed the mark at every turn” in understanding the rule.
The appellants argue persuasively that Greenberg lacks standing because there is no credible apprehension of prosecution. Indeed, Pennsylvania’s chief disciplinary attorney submitted an affidavit that Greenberg’s intended conduct would not violate the rule.
Yes, an offended CLE public member can file a frivolous complaint, but people file all kinds of frivolous complaints against lawyers. The thing is, Greenberg wouldn’t get in trouble for speaking his mind, even if he isn’t politically correct. It is not harassment or discrimination aimed at victimizing an individual.
A handful of other states have adopted anti-harassment and discrimination rules similar to Pennsylvania’s, all based on the ABA’s Model Rule 8.4(g).
In Connecticut, a federal judge in August fired a similar First Amendment challenge for lack of standing.
If the 3rd Circuit gets to the bottom, Blatt and the amici argue that the rule does not violate the First Amendment.
On the one hand, lawyers already see their speech limited in areas such as legal publicity, civility and the duty of candor towards the court. Why should these limits be acceptable, but not a rule against harassment and discrimination?
A amicus brief by seven minority bar associations and legal groups led by the Hispanic Bar Association offers a long litany of examples of discrimination and harassment in the practice of law – ranging from a lawyer calling opposing counsel “little lady” and ” young girl” to a lawyer in an office email referring to a black female judge as “Ghetto Hippopotamus.”
“Discrimination, harassment, and bias persist in our profession despite federal and state anti-discrimination laws,” wrote Hogan Lovells attorney and chief human resources officer, German Gomez, adding that the Lawyer Conduct Rule for Pennsylvania “is integral to promoting diversity in the state’s legal profession, and stamping out behavior that is simply unacceptable.
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