Lawyer Bar Ass'n Bullies Quell Dissent Through Rule-Making
Pennsylvania bar association rule is a thinly-disguised tool to intimidate attorneys who espouse politically incorrect viewpoints.
One by one, attorneys who have represented or supported former President Donald Trump are being kayoed by local attorney bar associations.
The thrust of the accusations is that these attorneys are not sufficiently “decent” because they espoused views that conflict with the enlightened and politically “correct” views of liberal bar associations.
This week, the District of Columbia Court of Appeals this week suspended for 18 months the license of Larry Klayman, who founded the conservative Judicial Watch and Freedom Watch groups. The court said Klayman cannot practice law until he shows “fitness.” The court’s action upholds a suspension imposed by the D.C. Bar’s Board of Professional Responsibility.
The flap supposedly involves a complaint over Klayman’s handling of a twelve year old sexual harassment lawsuit. Klayman says the complaint was already investigated and dismissed by attorney regulators in Florida and Pennsylvania. Klayman calls it a “political hit.”
Regardless of how you feel about Trump or Klayman, the evidence is mounting that liberal bar associations are targeting attorneys whose views conflict with that of liberal bar associations.
The ABA’s Weak Defense Of Free Speech
The American Bar Association last week filed a friend-of-the-court brief with the U.S. Court of Appeals for the Third District in Philadelphia. The nation's largest voluntary bar association supports a proposed PA bar association rule that would prohibit lawyers from “knowingly” engaging in conduct constituting “harassment” or “discrimination.”
U.S. District Judge Chad Kenney in Philadelphia found the rule to be an unconstitutional infringement of free speech that amounted to “overzealous policing of attorneys.”
Judge Kenney expressed “grave concern” the rule is grounded on a “nebulous notion of decency,” combined with the “exceptional authority of the state,” and would allow the bar to monitor attorneys outside of judicial proceedings and representation of a client. Judge Kenney said the PA rule’s standards are “at best, subjective, and, at worse, completely unknown” to both Pennsylvania attorneys and the bar’s disciplinary body.
Judge Kenney notes that speakers have been accused of discrimination or harassment “by simply endorsing certain views of case law or the Constitution.”
The lawsuit was filed by Zachary Greenberg, a PA attorney who works as a Senior Program Officer at the Foundation for Individual Rights in Education and serves as National Secretary of the First Amendment Lawyers Association. Greenberg says he speaks on a variety of “controversial” issues, including the hot button issue of extending due process rights to alleged perpetrators in cases of sexual assault on college campus.
He said the proposed bar rule has a “chilling effect” that causes him to “self-censor” to avoid being subjected to a bar investigation and discipline. He argued the PA rule is “content based and viewpoint-based” in violation of the First Amendment.
Greenberg cited the Texas bar association’s two-year investigation of Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit in Texas. She gave a lecture in 2013 on the death penalty at the University of Pennsylvania Law School where she said certain racial groups commit crimes disproportionate to their population. The complaint was ultimately dismissed.
The ABA amicus brief offers a sadly weak defense of the rule, asserting the bar is attempting to regulate “conduct” - not speech - and is “content neutral.”
Moreover, the ABA ignores the fact that many of the bar complaints are filed by a single Massachusetts group, Lawyers Defending American Democracy (LDAD), started by a former Mass. Democratic gubernatorial candidate.
Judge Kenney said the plain language of the rule and statements made by the defendants show the rule “restricts speech on its face and not incidentally.” He said the state has an important interest in regulating attorney conduct but that interest “does not give the government the authority to regulate attorneys speech without limits.”
The case is Greenberg v. Lehocky, No. 22-1733 (US Court of Appeals for the Third Circuit) Sept. 13, 2022.
Defending American Democracy?
Many of the complaint against Trump associated attorneys appear to be political attacks on their face.
A “nonprofit” group called Lawyers Defending American Democracy (LDAD) had filed several of the complaints. Its web site says LDAD was formed after the 50th reunion of of Harvard Law School’s class of 1968 when Scott Harsbarger, a former Attorney General of Massachusetts and Democratic nominee for governor, wrote an essay claiming Trump was undermining the rule of law. A fellow classmate, Gerson “Gary” M. Ratner, joined Harsbarger as a co-founder of LDAD1
LDAD filed an ethics complaint with the New York State Bar in 2021 calling for an investigation of former Trump attorney Rudy Giuliani, whose license was suspended on June 25 by the state of New York for making “false and misleading statements” about Trump’s election loss. The District of Columbia Court of Appeals subsequently automatically suspended Giuliani’s license in the District of Columbia.
Giuliani is charged in a separate DC bar complaint that is scheduled for a hearing on Dec. 5.
LDAD filed a complaint against Texas Attorney General Ken Paxton that alleges Paxton attempted to mislead the U.S. Supreme Court to overturn the 2020 election results. Sixteen GOP-controlled states supported the lawsuit Paxton filed that prompted the LDAD’s complaint. Nevertheless, the State Bar of Texas has filed a professional misconduct lawsuit against Paxton.
LDAD filed a legal ethics complaint against John Eastman whom it claims advised President Trump in efforts to overturn the 2020 election. That complaint is being investigated by the state bar of California.
LDAD filed a complaint against former Justice Department lawyer Jeffrey Clark, whom it claims attempted to get himself appointed Attorney General so he could investigate voter fraud in swing states in the 2020 election. The DC Bar’s Office of Disciplinary Counsel has filed a lawsuit against Clark, claiming he violated rules that govern the conduct of licensed attorneys.
LDAD also appears to be questioning the U.S. Supreme Court’s “legitimacy” and has accused Russia of war crimes in Ukraine.
It is unlikely that any of LDAD’s complaints would have garnered serous consideration if Trump been declared the victor in 2020. This plainly shows the problematic nature of the proposed PA bar association rule. But the ABA and other defenders of “decency” are unphased.
Instead, they are chipping away at the remaining shards of free speech in a country where one party dominates the political environment and the media is largely owned by a half-dozen corporations.