Revised Ethics Rule on Discrimination

Without first publishing a proposed amendment for public comment, the Supreme Court of Pennsylvania has adopted an amendment to Rule of Professional Conduct 8.4(g), which was adopted in 2020 to make it professional misconduct for a lawyer to “knowingly manifest bias or prejudice, or engage in harassment or discrimination….” What seems to be the critical part of the amendment is the change from “knowingly manifest bias or prejudice” to “knowingly engage in conduct.’ The cross-reference to applicable federal and state laws was also deleted and several official comments were revised. “Amendment of Rule 8.4 of the Pennsylvania Rules of Professional Conduct; No. 213 Disciplinary Rules Doc.” (7/26/2021), 51 Pa.B. 4260 (8/7/2021).

This change was apparently made in order to address a finding of unconstitutionality by a federal district judge. See, Greenberg v. Haggerty, 491 F.Supp.3d 12 (E.D. Pa. 2020), and the dissenting statement by Supreme Court Justice Mundy opines that the amendment fails to cure the rule’s unconstitutional nature.

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