Greenberg v. Lehocky, ___ F.4th ___, 2023 WL 5539272 (3d Cir. Aug. 29, 2023)

The recent amendment to Pennsylvania Rule of Professional Conduct 8.4, prohibiting harassment and discrimination in the practice of law, remains in effect in Pennsylvania after the Third Circuit held that an attorney plaintiff lacked standing to challenge the Rule where he had not actually suffered any injury as a result of the Rule.

The plaintiff, a Pennsylvania-licensed attorney, regularly gives continuing legal education presentations about First Amendment protections for offensive speech, during which he quotes offensive language and discusses controversial topics. Fearing that his speech at those presentations could be interpreted as harassment or discrimination under the Rule, he challenged the Rule as violating the First Amendment and as unconstitutionally vague. The District Court agreed and enjoined enforcement of the Rule.

In reversing, the Third Circuit found that the Rule does not generally prohibit attorneys from quoting offensive words or expressing controversial ideas. The plaintiff’s planned speech did not arguably violate the Rule, and he faced no credible threat of enforcement. Therefore, any chill to the plaintiff’s speech was not objectively reasonable and cannot be fairly traced to the Rule, so the plaintiff lacked standing to challenge the Rule.