GREENBERG v. LEHOCKY

No. 22-1733.

81 F.4th 376 (2023)

Zachary GREENBERG v. Jerry M. LEHOCKY, in his official capacity as Board Chair of the Disciplinary Board of the Supreme Court of Pennsylvania; Dion G. Rassias, in his official capacity as Board Vice-Chair of the Disciplinary Board of the Supreme Court of Pennsylvania; Joshua M. Bloom, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; Celeste L. Dee, in her official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; Laura E. Ellsworth, in her official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; Christopher M. Miller, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; Robert J. Mongeluzzi, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; Gretchen A. Mundorff, in her official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; John C. Rafferty, Jr., in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; Hon. Robert L. Repard, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; David S. Senoff, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; Shohin H. Vance, in his official capacity as Member of the Disciplinary Board of the Supreme Court of Pennsylvania; Thomas J. Farrell, in his official capacity as Chief Disciplinary Counsel of the Office of Disciplinary Counsel; Raymond S. Wierciszewski, in his official capacity as Deputy Chief Disciplinary Counsel of the Office of Disciplinary Counsel, Appellants.

United States Court of Appeals, Third Circuit.

Argued: April 13, 2023.


Attorney(s) appearing for the Case

Lisa S. Blatt [ARGUED], Aaron Z. Roper , Amy M. Saharia , Peter Jorgensen , Williams & Connolly, 680 Maine Avenue SW, Washington, DC 20024, Counsel for Appellants.

Omar Gonzalez-Pagan , Ethan Rice , Lambda Legal, 120 Wall Street, 19th Floor, New York, NY 10005, Karen Loewy , Lambda Legal, 1776 K Street NW, 7th Floor, Washington, DC 20006, Counsel for Amicus Appellant Lambda Legal Defense & Education Fund Inc.

Abraham C. Reich , Robert S. Tintner , Beth L. Weisser , Fox Rothschild, 2000 Market Street, 20th Floor, Philadelphia, PA 19103, Counsel for Amicus Appellant American Bar Association.

Carmen G. Iguina Gonzalez , Joshua A. Matz , Raymond P. Tolentino , Kaplan Hecker & Fink, 1050 K Street NW, Suite 1040, Washington, DC 20001, Counsel for Amicus Appellants Stephen Gillers and Barbara S. Gillers.

Joshua J.T. Byrne , Marshall Dennehey Warner Coleman & Goggin, 2000 Market Street, Suite 2300, Philadelphia, PA 19103, Counsel for Amicus Appellants Rebecca Aviel, Myles V. Lynk and Ann Ching.

Brittany C. Armour , Hogan Lovells US, 1735 Market Street, 23rd Floor, Philadelphia, PA 19103, German A. Gomez , Hogan Lovells US, 555 Thirteenth Street NW, Columbia Square, Washington, DC 20004, Counsel for Amicus Appellants Hispanic National Bar Association, National Asian Pacific American Bar Association, Asian Pacific American Bar Association of Pennsylvania, National Bar Association, National Native American Bar Association, National LGBTQ+ & Bar Association, and National Association of Women Lawyers.

Thomas G. Wilkinson, Jr. , Cozen O'Connor, 1650 Market Street, One Liberty Place, Suite 2800, Philadelphia, PA 19103, Counsel for Amicus Appellants Pennsylvania Bar Association, Philadelphia Bar Association, Allegheny Bar Association, and Interbranch Commission for Racial Gender and Ethnic Fairness.

Theodore H. Frank , Adam E. Schulman [ARGUED], Hamilton Lincoln Law Institute, 1629 K Street NW, Suite 300, Washington, DC 20006, Counsel for Appellee.

Ilya Shapiro , Manhattan Institute, 52 Vanderbilt Avenue, New York, NY 10017, Counsel for Amicus Appellee Manhattan Institute, Bader Family Foundation, Hans Bader.

Eugene Volokh , UCLA School of Law, 385 Charles E. Young Drive, Los Angeles, CA 90095, Counsel for Amicus Appellee Women's Liberation Front, Concerned Woman for America.

Richard A. Samp , New Civil Liberties Alliance, 1225 19th Street NW, Suite 450, Washington, DC 20036, Counsel for Amicus Appellee New Civil Liberties Alliance.

John J. Bursch , Alliance Defending Freedom, 440 First Street NW, Suite 600, Washington, DC 20001, Jacob P. Warner , Alliance Defending Freedom, 15100 N 90th Street, Scottsdale, AZ 85260, Counsel for Amicus Appellee Alliance Defending Freedom.

Randall L. Wenger , Independence Law Center, 23 N Front Street, Harrisburg, PA 17101, Counsel for Amicus Appellees Independence Law Center and First Liberty Institute.

L. Theodore Hoppe , Suite 215, 25 W. Second Street, Second Flr., Media, PA 19063, Counsel for Amicus Appellee Christian Legal Society.

Reilly Stephens , Liberty Justice Center, 440 N Wells Street, Suite 200, Chicago, IL 60654, Daniel R. Suhr , National Center for Justice & Liberty, 747 N Jackson Street, Suite 210, Chicago, IL 60654, Counsel for Amicus Appellees Bruce A. Green and Rebecca Roiphe.

Deborah J. Dewart , 111 Magnolia Lane, Hubert, NC 28539, Counsel for Amicus Appellee Institute for Faith and Family.

Ethan Blevins , Pacific Legal Foundation, 555 Capitol Mall, Suite 1290, Sacramento, CA 95814, Counsel for Amicus Appellee Pacific Legal Foundation.

Johanna E. Markind , #280, 18 Maple Avenue, Barrington, RI 02806, Counsel for Amicus Appellee Legal Insurrection Foundation.

Steven W. Fitschen , National Legal Foundation, 524 Johnstown Road, Chesapeake, VA 23322, Counsel for Amicus Appellees National Legal Foundation, Pacific Justice Institute, and Justice & Freedom Law Center.

Larry L. Crain , Crain Law Group, 5214 Maryland Way, Suite 402, Brentwood, TN 37027, Counsel for Amicus Appellee Patrick G. Gould.

Before: CHAGARES, Chief Judge, SCIRICA, and AMBRO, Circuit Judges.


OPINION OF THE COURT

The Supreme Court of Pennsylvania amended Pennsylvania Rule of Professional Conduct 8.4 to prohibit harassment and discrimination in the practice of law. Plaintiff Zachary Greenberg is a Pennsylvania-licensed attorney who regularly gives continuing legal education presentations about First Amendment...

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