The Greenberg matter was a facial challenge to the Pennsylvania rule filed by a lawyer who works for First Amendment organizations and who speaks and writes about free speech issues, including efforts to ban hate speech on campus. The defendant was the chair of Pennsylvania’s disciplinary board that enforces the rules. When the case was filed, the Pennsylvania rule applied to a lawyer’s “words or conduct” that “knowingly manifest[ed] bias or prejudice.” 2022 WL 874953 at *2. The district court issued a preliminary injunction against enforcement of that version of the rule. The defendant appealed, but dismissed the appeal after the Pennsylvania Supreme Court amended the rule to proscribe only certain “conduct” that constituted harassment or discrimination.
On remand, the parties filed cross-motions for summary judgment on the constitutionality of the new rule, and the court granted the plaintiff’s motion and denied the defendant’s. The lengthy decision works through several interesting issues, but the initial question under the First Amendment was whether the rule regulates speech or conduct.3 The plaintiff argued that the rule prohibited hostile or denigrating comments directed at a person and occurring, for instance, at a bar association event or a CLE presentation or some other forum that had no connection to a courtroom or representation of a client. He noted that a disciplinary complaint had been filed against a prominent federal appellate judge who commented at a law school speech that “members of certain racial groups commit crimes at rates disproportionate to their population.” 2022 WL 874953 at *2. Comments in that vein, he argued, would qualify as protected speech under Third Circuit precedent. See Slip op. at 33 (citing Saxe v. State College Area School Dist., 240 F.3d 200 (3d Cir. 2001) (Alito, J.)).
The defendant contended that the rule regulated discriminatory conduct and only incidentally burdened speech, which would be permissible under cases such as National Inst. of Fam. & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018). Official comments published with the amended rule explained that it did not ban speeches, presentations, or publications outside the practice of law (although the comments implied that the practice of law included CLE seminars, bench-bar conferences, and bar association activities where legal education credits were offered). And Pennsylvania’s Chief Disciplinary Counsel further explained, through a declaration filed in the litigation, that his office did not interpret the rule to prohibit “general discussions of case law or ‘controversial’ positions or ideas” and would not pursue discipline on those grounds. 2022 WL 874953 at *5. The court, relying on the official comments that interpreted “conduct” broadly, held that the rule encompassed protected speech.
The “speech vs. conduct” analysis would be superfluous under the Maryland Rule, which expressly bans discriminatory “words” as well as “conduct.” In addition, the Maryland Rule applies when a lawyer acts “in a professional capacity” and not just when the lawyer is engaged in the practice of law. For these reasons, Maryland’s version of the Rule is more problematic under the First Amendment than Pennsylvania’s rule, and probably most other states’ rules as well. The black letter of the ABA Model Rule, for instance, applies only to “conduct,” although comments to the Model Rule state that the Rule covers certain “verbal” conduct that ordinarily would be understood as speech.4
Maryland’s version of the rule does contain a limitation that is absent from the Pennsylvania rule: it requires that the discriminatory words or conduct be “prejudicial to the administration of justice.” If that phrase meaningfully constricts the scope of lawyer behavior subject to discipline, it might well protect the Maryland rule from constitutional challenge. See, e.g., Bruce A. Green & Rebecca Roiphe, ABA Model Rule 8.4(g), Discriminatory Speech, and the First Amendment, NYLS Legal Studies Research Paper No. 4009058, at 13-15 (Jan. 17, 2022) (forthcoming Hofstra L. Rev., Vol. 50).
Maryland’s judicial interpretations of that phrase, however, suggest that it is not particularly narrowing. In Attorney Grievance Commission v. Markey, 469 Md. 485 (2020), the court considered a long series of e-mail communications by two lawyers who worked for the federal Department of Veterans Affairs. The e-mails contained abhorrent comments about Department employees, including an administrative law judge, based on their race, gender, sexual orientation, and ethnicity. The e-mails were superficially intended to be private, but they were prepared during working hours and sent on government servers, and they related to the work of the Board of Veterans’ Appeals. For these reasons the Court of Appeals concluded that the respondents were acting in a professional capacity when they sent the e-mails. Id. at 957-58. (It is less clear whether this conduct would have qualified as “the practice of law” under the ABA or Pennsylvania rule.) The Court held that professional (as opposed to private) conduct is prejudicial to the administration of justice if it would “bring[] the legal profession into disrepute in the eyes of a reasonable member of the public.” Id. at 504 (citations and quotations omitted); see also Attorney Grievance Comm’n v. Vasiliades, 475 Md. 520 (2021) (racial, homophobic, and sexist slurs on social media linked to respondent’s firm’s website constituted professional misconduct prejudicial to the administration of justice). Compare Matal v. Tam, 137 S. Ct. 1744 (2017) (law banning trademarks that would disparage persons or bring them into contempt or disrepute was facially unconstitutional under the free speech clause). Thus, the “prejudicial to the administration of justice” qualifier probably would not save the Maryland Rule under the Greenberg analysis.
As interpreted by the Court of Appeals, Maryland Rule 19-308.4(e) is effectively a specific application of Rule 19-308.4(d),5 which broadly proscribes attorney conduct that is “prejudicial to the administration of justice.” This common phrase has prompted many constitutional and other challenges based on its breadth and vagueness.6 For the most part, courts have rejected these challenges. In Attorney Grievance Commission v. Alison, 317 Md. 523 (1989), a lawyer was disciplined for berating a filing clerk at a courthouse. The court accepted that this conduct did not occur in a courtroom, where attorney speech is subject to significant restraints, but nonetheless held that it was prejudicial to the administration of justice. “It is not difficult to visualize the damage to the court system and to the reputation of the legal profession that would result if attorneys were free to conduct their daily business with court clerks in the manner employed by Alison.” Id. at 538. And Rule 8.4(d) was not void for vagueness because it applied solely to lawyers, who could be guided by case law interpreting the provision and “the lore of the profession.” See also In re Snyder, 472 U.S. 634, 645 (1985) (“conduct unbecoming a member of the bar” is given “specific guidance” through case law, applicable court rules, and the lore of the profession). The upshot of these Maryland cases suggests that any discriminatory speech by a lawyer made in a professional capacity could violate Rule 19-308.4(e), because it is hard to imagine discriminatory statements by a lawyer that do not in some measure bring the legal profession into disrepute in the eyes of the public. But see Green & Roiphe, supra, at 18-19 (suggesting an absence of evidence that distasteful speech by lawyers harms the profession).
None of this is to suggest that the Maryland Rule or other comparable anti-discrimination rules are in imminent danger of invalidation under the free speech clause or other constitutional proscription. A majority of states have included an anti-discrimination provision in some form in their ethical rules, whether in a separate subsection of Rule 8.4 or in a comment to that rule.7 A Pennsylvania district court decision is not binding in Maryland, and other decisions have upheld Rule 8.4(g) against constitutional challenges. See In re Abrams, 488 P.3d 1043 (Colo. 2021) (upholding Colorado version of the rule, although observing that it was “significantly narrower” than the ABA Model Rule, see id. at 1053 n.3). The ABA’s Ethics Committee has issued a lengthy opinion defending the rule both as policy and as a valid and constitutional restraint on lawyer conduct. See ABA Standing Comm. on Ethics & Prof’l Resp., Formal Op. No. 493 (July 15, 2020).8 The rule has both proponents and skeptics in the academy, which has debated the constitutionality of the rule in many publications.9
These authorities virtually ensure that the Greenberg decision will be scrutinized on appeal and may well be reversed. Even if it is affirmed, a decision from the Court of Appeals for the Third Circuit may have minimal persuasive impact in Maryland. Although the Court of Appeals of Maryland has not explicitly upheld Rule 19-304(e) against a First Amendment challenge,10 its existing precedent suggests that a broad constitutional challenge would be rejected if pursued in Maryland state court. The outcome of a Greenberg-type facial challenge in Maryland federal court is less clear. Alternatively, the Supreme Court could accept a case like Greenberg, or an as-applied challenge from a state court imposing discipline under Rule 8.4(g).
Nearly all lawyers agree that the objectives of these anti-discrimination rules are desirable. The district judge in Greenberg began his decision by praising the ABA for its efforts in drafting Model Rule 8.4(g), but he could not support its constitutionality when implemented through a rule enforceable by the state. For now, the Greenberg decision is a bit of a novelty, particularly as a successful facial challenge to the rule. But it does seem to signal a shift in the debate concerning Rule 8.4(g) from commentary to courtroom.
______________________
1“It is professional misconduct for a lawyer to … in the practice of law, knowingly engage in conduct constituting 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.”
2“It is professional misconduct for a lawyer to … knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this section.” (Emphasis added.)
3In reaching its conclusion that the rule violated the First Amendment, the Court also held that the rule was not a valid restriction on “professional speech”; that it constituted viewpoint-based discrimination and content-based discrimination; that the rule was not saved by a compelling government interest; and that the rule was sufficiently overbroad to warrant facial challenge.
4Model Rule 8.4(g) was adopted by the ABA in 2016. Prior to that time the same concept appeared in different form as a comment to Model Rule 8.4, but the comment applied to both words and conduct. See Ronald Rotunda & John Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility § 8.4-2(j)-1 (2021). Maryland Rule 19-308.4(e) is based on the former comment to the ABA Rule. The Pennsylvania Rule is based on the current text of Model Rule 8.4(g). See Greenberg, supra, 2022 WL 874953 at *2.
5The drafting history of Rule 19-308.4(e) contains some suggestions that the rule was intended to be a specific application of 19-308.4(d). See Report of the Select Comm. to Study Ethics 2000 Amendments to ABA Model Rules 154 (Dec. 16, 2003) (minority report of M. Peter Moser); id. at 389 (comments of Alan Abramowitz).
6The Greenberg decision also held that Pennsylvania’s Rule 8.4(g) was void for vagueness under the Fourteenth Amendment, but the analysis focused on standards of conduct articulated in the comments to the rule, in particular “conduct that is intended to intimidate, denigrate, or show hostility or aversion,” and conduct that manifests an intention “to treat a person as inferior or “to disregard relevant considerations of individual characteristics or merit.” 2022 WL 874953 at *33 (quoting Pa. R. Prof’l Cond. 8.4 cmts. [4], [5]). These comments do not appear in the Maryland Rule.
7See ABA Center for Prof’l Resp. Policy Implementation Comm., Jurisdictional Adoption of Rule 8.4(g) (Oct. 18, 2019). A few have declined based on constitutionality concerns. See Josh Blackman, ABA model Rule 8.4(g) in the States, 68 Cath. U. L. Rev. 629, 630-32 (2019) (citing Texas, South Carolina, Louisiana, and Tennessee).
8The ABA opinion indirectly responds to the Greenberg plaintiff’s concern about the complaint filed against the appellate judge for commenting on racial disparities in crime statistics. The ABA opinion posits a hypothetical but similar situation in which a “speaker at a CLE program on affirmative action in higher education expresses the view” that race-conscious processes for college admissions are counterproductive because some students would be better off attending lower-ranked schools where they would be more likely to excel. The Committee advised that this statement would not violate Model Rule 8.4(g) because it is a “general point of view,” not conduct that the lawyer knows or reasonably should know is racial harassment or discrimination. Formal Op. No. 493, at 12-13.
9See, e.g., Rebecca Aviel, Rule 8.4(g) and the First Amendment: Distinguishing Between Discrimination and Free Speech, 31 Geo. J. L. Ethics 31 (2018); Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model Rule 8.4(g), 30 Geo. J. Legal Ethics 195, 234-36 (2017); Josh Blackman, Reply: A Pause for State Courts Considering Model Rule 8.4(g), 30 Geo. J. Legal Ethics 241 (2017).
10Neither Markey nor Vasiliades mentions the First Amendment; presumably, it was not raised as a defense in either case.
