The Christian Legal Society, a conservative legal group based in Virginia, is urging a federal judge to nullify an LGBT-inclusive antibias rule for Pennsylvania attorneys.
CLS is based in Springfield, Virginia, and has eight satellite offices in the Philadelphia area. The group seeks to vindicate the free-speech rights and religious-freedom rights of conservative Christians.
A federal judge is considering a request by Philadelphia attorney Zachary S. Greenberg to nullify an antibias rule that would prohibit attorneys from engaging in harassment or discrimination due to LGBT status and other protected categories.
In August 2021, 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. On Nov. 16, CLS filed a 12-page amicus brief opposing the new rule.
The CLS brief indicates attorneys have a right to sincerely-held religious beliefs, even if those beliefs may offend the LGBTQ community and others. The brief also claims the new rule is too broad and vague.
“[T]here is no free speech carve-out that countenances content-
based restrictions on professional speech,” the CLS brief states.
A spokesperson for the organization had no comment for this update.
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 said they have no comment for this PGN update.
After Kenney ruled against disciplinary-board members, the defendants filed an appeal with the Third Circuit Court of Appeals but withdrew the appeal in March 2021, without explanation.
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. The new rule also notes that attorneys’ speeches, communications, debates, presentations, or publications outside the practice of law aren’t at issue.
But Greenberg continues to be concerned the new rule will infringe upon free-speech rights. He’s particularly concerned about the new rule’s definitions for “harassment” and “discrimination,” which he claims are broad and vague, according to court papers.
The new rule, which is known as Rule 8.4(g), remains on the disciplinary board’s website, though it’s not being enforced during the pendency of Greenberg’s litigation, according to court papers.
Adam E. Schulman, an attorney for Greenberg, issued this statement about CLS’ brief: “With respect to the CLS amicus [brief], their views are independent of Zach’s and their brief does not speak for Zach. However, we are aware of — and do appreciate — CLS’ continued advocacy in support of First Amendment rights against overreaching rules like Pennsylvania’s 8.4(g).”
Angela D. Giampolo, a local LGBT civil-rights attorney, expressed puzzlement regarding opposition to the new rule. “It baffles and saddens me how much attention and litigation the addition of Rule 8.4(g) to the Pennsylvania Rules of Professional Conduct for lawyers has generated,” Giampolo said, in an email. “It is merely a mirror to the rule that the American Bar Association adopted and the intent behind it is to provide a safe place for LGBTQIA+ people in the law and to uphold the integrity of the profession. I don’t see how asking a lawyer, in their capacity as a lawyer, to not harrass or discriminate against someone based on their gender identity or sexual orientation violates their constitutional rights. The rule even allows for lawyers whose faith may conflict with providing the best representation to decline or withdraw from the representation. Again, it’s all truly baffling.”
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.
A decision by Kenney on Greenberg’s request to nullify the rule is expected within the next few months.