… The Institute for Faith and Family, Foundation for Moral Law and New Civil Liberties Alliance, which is challenging a somewhat different Connecticut legal ethics rule, each filed individual briefs…
NCLA President Mark Chenoweth mocked the “standing gymnastics” of the 3rd Circuit in a statement Monday accompanying its brief.
Relying on “nonbinding, personal assurance” to Greenberg that he wouldn’t get in trouble, and forcing him to show the case wasn’t moot, “encourages government gamesmanship,” the public interest law firm said.
It’s a get-out-of-lawsuit-free card that lets defendants “purport to exempt anyone who threatened to sue, while leaving the Rule in place to chill everyone else’s speech,” according to NCLA.
Without SCOTUS intervention, the 3rd Circuit ruling will halt “percolation of the underlying merits issues” in pre-enforcement challenges in its jurisdiction of Delaware and New Jersey, which have “antidiscrimination provisions in their rules of professional conduct,” and the U.S. Virgin Islands, which “fully” adopted the ABA model rule, NCLA’s brief says.
Its “conflation of strategic mooting with standing will also discourage courts across the country from vindicating the constitutional rights of harmed parties,” the brief says.
Unlike legal ethics rules by Connecticut and New York also based on the ABA model rule, Pennsylvania’s did not include limiting language or carveouts for particular forms of speech or settings such as CLE presentations.
Shortly after the 3rd Circuit threw out Greenberg’s case, the 2nd Circuit suggested in oral argument it would go the other way and reinstate NCLA’s lawsuit against Connecticut’s rule, which limits harassment to “severe or pervasive” conduct, also dismissed for lack of standing…