Philly attorney continues to challenge statewide anti-bias rule

The dispute is pending before U.S. District Judge Chad F. Kenney of the Eastern District of Pennsylvania

By: - October 17, 2021 6:30 am

By Tim Cwiek

PHILADELPHIA — A Philadelphia attorney continues to challenge a statewide antibias rule that would prohibit attorneys from engaging in harassment or discrimination due to LGBT status and other protected categories.

In August 2021, attorney Zachary S. Greenberg filed suit against the rule, which is a revised version of a prior antibias rule he successfully challenged in federal court.

The dispute is pending before U.S. District Judge Chad F. Kenney of the Eastern District of Pennsylvania. Both sides are preparing legal briefs requesting Kenney to summarily rule in their favor.

In June 2020, the state Supreme Court promulgated a rule that would facilitate discipline for attorneys engaged in bias or harassment. The protected categories are: race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status and socioeconomic status.

Discipline could range from a reprimand to dismissal for the offending attorney.

But in December 2020, after Greenberg filed a challenge, Kenney said the rule violated attorneys’ free-speech rights. Kenney issued a preliminary injunction, suspending implementation of the rule until the matter could be fully litigated.

Defendants in the case include 12 members of the state Supreme Court’s Disciplinary Board. They are: Celeste L. Dee, John P. Goodrich, Jerry M. Lehocky, Christopher M. Miller, Robert Mongeluzzi, Gretchen M. Mundorff, John C. Rafferty Jr., Dion G. Rassias, Robert L. Repard, Eugene F. Scanlon Jr., David S. Senoff and Shohan H. Vance.

Their spokesperson had no comment for this story.

After Kenney ruled against disciplinary-board members, they subsequently filed an appeal with the Third Circuit Court of Appeals but withdrew the appeal in March 2021, without explanation.

Free-speech advocate challenges new state anti-bias rule

A revised rule was promulgated by the state Supreme Court in July 2021, which emphasizes prohibiting biased conduct on the part of attorneys, rather than biased speech. It also notes that attorneys’ speeches, communications, debates, presentations, or publications outside the practice of law aren’t covered by the new rule.

But Greenberg remains concerned about the revised rule’s definitions for “harassment” and “discrimination,” according to court papers.

Last week, Greenberg’s attorney, Adam E. Schulman said Greenberg will be filing court papers next month asking Kenney to decide in his favor.

“The language of the rule is still the language of the rule,” Schulman said, in an email. “We’ll be responding more specifically and thoroughly in [court] papers we file in November.”

The revised rule, which is known as Rule 8.4G, remains on the disciplinary board’s website, though it’s not being enforced during the pendency of the litigation, according to court papers.

Greenburg issued this statement to PGN: “We cannot build a more diverse and inclusive legal community by sacrificing the First Amendment rights of our [bar] members. The new rule’s harassment and discrimination definitions are vague, excessively broad, and restrict the expressive rights of Pennsylvania attorneys. I look forward to the court once again rejecting this paternalistic, sloppy attempt to conform PA attorneys’ speech to whatever is acceptable to PA disciplinary boards.”

Chad Dion Lassiter, executive director of the Pennsylvania Human Relations Commission, told PGN he supports the revised antibias rule.

“Pennsylvania has to move toward greater levels of social justice for the LGBT community,” Lassiter said, in an email. “And such a rule is needed as we most certainly should be protecting the civil and human rights of all persons —  regardless of race, creed, gender, sexual orientation, ethnicity or natural origin. Moreover, a social justice commitment under the law that speaks to nondiscrimination for the LGBT community cannot waiver in principle or in practice. Bias is real and is unethical and the argument of ‘free speech’ is oftentimes used to hide xenophobic behaviors.”

Kenney, 66, has served on the federal judiciary for three years. He was appointed to the federal bench by then-President Donald Trump. He previously served as sheriff of Delaware County, Pa. He’s also a former member of the Pennsylvania State Republican Committee.

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