In a pivotal legal maneuver, a Pennsylvania attorney has catapulted a contentious anti-harassment and anti-discrimination professional rule into the spotlight by petitioning the U.S. Supreme Court to intervene. The legal fracas, initiated by Zachary Greenberg of the Foundation for Individual Rights and Expression, challenges the constitutionality of a state bar rule that prohibits lawyers from knowingly engaging in discriminatory behavior.
The 3rd Circuit U.S. Court of Appeals previously ruled in August that Greenberg’s constitutional free speech rights were not under threat, citing his lack of standing. The court contended that the rule only applied to “knowing or intentional harassment or discrimination against a person” and did not encroach upon Greenberg’s professional pursuits.
Undeterred, Greenberg’s certiorari petition argues that the 3rd Circuit erred in assessing his standing, pointing to a revision of the rule and assurances from a Pennsylvania bar official that disciplinary action would not be pursued against him. Greenberg asserts that policy changes do not automatically confer standing and insists that the court must consider the broader implications.
Adam Schulman, representing Greenberg, maintained a tight-lipped stance on the matter, confirming only that the petition had been filed. On the opposing front, the lawyer representing Pennsylvania’s state attorney disciplinary board has yet to respond to requests for commentary.
The Pennsylvania rule, fashioned after an American Bar Association guideline, explicitly prohibits lawyers from engaging in discriminatory conduct based on various grounds. Greenberg contends that his professional activities, particularly presentations on offensive language, put him at risk of violating the rule. However, the 3rd Circuit panel disputed this, stating that the rule did not curtail Greenberg’s intended actions.
The legal saga commenced in 2020 when the rule was first adopted and was subsequently amended after Greenberg’s initial lawsuit. Despite facing a constitutional challenge and being struck down by U.S. District Judge Chad Kenney in 2022, the rule resurfaced through the efforts of the 3rd Circuit in the preceding year.
The Pennsylvania rule garnered support from the American Bar Association and allied groups, while facing opposition from conservative, religious, and civil rights organizations that argued it was susceptible to misuse.
As this legal battle unfolds under the banner of Greenberg v. Lehocky, it marks a significant chapter in the ongoing dialogue surrounding the boundaries of professional conduct and freedom of expression within the legal realm.
