Judge suspends new antibias rule for Pa. attorneys

Judge Chad F. Kenney

A federal judge has suspended implementation of an antibias rule for Pennsylvania attorneys that was slated to go into effect Dec. 8. The new rule facilitates discipline for attorneys engaged in anti-LGBT bias or harassment.

But on Dec. 7, Judge Chad F. Kenney of the Eastern District of Pennsylvania said the new rule constitutes “viewpoint discrimination.” Thus, it violates the First Amendment.

Kenney issued a preliminary injunction, suspending implementation of the rule until the matter can be fully litigated. 

The rule was promulgated by the state Supreme Court in June 2020. It’s being challenged by Zachary S. Greenberg, a Philadelphia-based attorney who claims the rule would have a “chilling effect” on his free-speech rights. In a 43-page decision, Kenney agreed with Greenberg’s concerns.

“There is no doubt that the government is acting with beneficent intentions [by promulgating the rule],” Kenney wrote. “However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine — without any concrete standards — who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance.”

Kenney’s decision emphasizes the free-speech rights of individuals. “Our limited constitutional government was designed to protect the individual’s right to speak freely, including those individuals expressing words or ideas we abhor,” the judge wrote.

Kenney, 65, has served on the federal judiciary for two years. He was appointed to the federal bench by President Donald Trump. He previously served as sheriff of Delaware County, Pa. He’s also a former member of the Pennsylvania State Republican Committee. 

Kenney said the new rule would hang over the head of Greenberg and other attorneys as a “sword of Damocles.”

“This [new rule] will continuously threaten the speaker to self-censor and constantly mind what the speaker says and how the speaker says it — or the full apparatus and resources of the Commonwealth may be engaged to come swooping in to conduct an investigation,” Kenney opined.

Defendants in the case are 13 members of the state Supreme Court’s Disciplinary Board. Their attorneys at the Administrative Office of Pennsylvania Courts couldn’t be reached for comment. Kenney set a Dec. 22 deadline for defendants to file an answer to Greenberg’s lawsuit. 

Criticism of Kenney’s decision was swift. The Hon. A. Michael Snyder (retired), Chancellor of the Philadelphia Bar Association, issued the following statement:

“The promotion of diversity and inclusion and the elimination of bias and discrimination in the justice system are core values of the [PBA]. We are committed to the vision of a justice system in which all individuals —  judges, lawyers, litigants, witnesses and employees — can participate free from discrimination and harassment.

“We believe that lawyers, as professionals, are responsible for demonstrating the highest standards of behavior.

“Yesterday, [Kenney] issued an Order enjoining enforcement of Rule 8.4(g) of the Pennsylvania Rules of Professional Conduct. This Rule makes discrimination and harassment in the practice of law professional misconduct. We are deeply disappointed in this decision.

“The [PBA] unequivocally supports a rule prohibiting a lawyer engaged in the practice of law from knowingly manifesting bias or prejudice, or discriminating against or harassing any person on the basis of race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status.”

Justin F. Robinette, a local civil-rights attorney, blasted Kenney’s decision. “Judge Kenney sends a horrible message about tolerating anti-LGBT bias and harassment within the legal profession,” Robinette told PGN. “He apparently thinks attorneys are somehow exempt from LGBT-inclusive antibias rules in effect throughout the Commonwealth. I fervently hope the Administrative Office of Pennsylvania Courts will promptly appeal this extremely troubling decision to the Third Circuit Court of Appeals.  We cannot let a Trump appointee undo the hard work of so many LGBT advocates and others who seek a more just society.”

Jason Landau Goodman, executive director of Pennsylvania Youth Congress, echoed similar sentiments. “As officers of the court, all attorneys admitted to practice law should dispense their professional services without engaging in discrimination or harassment,” Goodman told PGN. “Individuals can have their own private lives. But when it comes to formal legal representation, there should be no question as to the integrity of their services. If as a society we require this professional responsibility of other occupations like doctors and realtors, why not lawyers? When a lawyer agrees to take a client, they shouldn’t provide them substandard services based in bigotry because of who they are.”

Trans attorney Julie Chovanes expressed a differing view of Kenney’s decision. “I am a great fan of the First Amendment and view hate-speech restrictions with suspicion — since they can be turned around on me, too,” Chovanes told PGN. “I think we have got to be extremely careful when we purport to regulate speech. And I say all of that as a trans woman and trans civil-rights lawyer, who has been called names for her appearance by everyone from a federal judge — calling me ‘sad’ and ‘bizarre’ — to fellow trans people misgendering me for whatever reason. All of that speech is motivated by bias and prejudice. But we cannot attempt to regulate it because the free exchange of ideas — no matter how abhorrent — is crucial to our democratic form of government.”

Greenberg, a free-speech advocate for a non-profit group, praised Kenney’s decision. “Pennsylvania attorneys do not shed their First Amendment rights upon earning their law license,” Greenberg said, in a news release. “This ruling affirms that the expressive rights of the legal profession may not be stifled merely because the government dislikes what we have to say.”

Adam E. Schulman, an attorney for Greenberg, expressed confidence that Kenney’s ruling would withstand a potential legal challenge. “We think that if the case is appealed to the Third Circuit, Judge Kenney’s decision stands a good chance of being upheld,” Schulman told PGN. “Across the spectrum, Democratic and Republican appointees on the Third Circuit have shown an interest in protecting First Amendment rights.”