ABA Model Rule 8.4(g) Efforts in New York
Status of Action in New York
Status – The Administrative Board of the New York State Unified Court System is considering adopting ABA Model Rule 8.4(g). Separately, the New York Bar Association is also considering adopting ABA Model Rule 8.4(g).
On June 12, 2021, the New York State Bar Association House of Delegates voted to approve the recommendation of the New York State Bar Association’s Committee on Standards of Attorney Conduct (COSAC) Committee to amend Rule 8.4 of the New York Rules of Professional Conduct. At the meeting, COSAC presented its report and recommendation to amend the rule. In its report, COSAC indicated it had found the following deficiencies with the current New York rule: (1) does not apply to harassment; (2) focus is on employment discrimination; (3) administrative remedies must be exhausted first; and (4) does not address sexual or racial epithets or biased conduct or harassment directed at opposing parties, lawyers, and others in the practice of law. COSAC stated its goal for the amendment as reducing or eliminating discrimination or harassment in the legal profession. Per the report, the COSAC proposal does the following: (1) eliminates the requirement to exhaust administrative remedies; (2) adds harassment; (3) expands protected classes; and (4) expands the rule to cover activities in the practice of law beyond employment. COSAC asserts the proposal differs from ABA Model Rule 8.4(g) in that it defines harassment and uses the more limited “in the practice of law” rather than “related to the practice of law.”
New York State Bar Association - Comments due May 28, 2021
The New York State Bar Association’s Committee on Standards of Attorney Conduct (COSAC) has a public comment period open until Friday, May 28, at 5 p.m. Eastern. COSAC has proposed a rule that it claims is significantly different from ABA Model Rule 8.4(g). But in CLS’s opinion, as explained in the CLS comment letter to COSAC, COSAC’s Proposed Rule shares most of ABA Model Rule 8.4(g)’s constitutional problems.
Please send comments to firstname.lastname@example.org by Friday, May 28, at 5 p.m. Eastern.
Short comments simply expressing opposition to COSAC’s Proposed Rule are good, or commenters may borrow freely from the CLS comment letter.
Whether or not you provide comments to COSAC on May 28, please provide comments to the Administrative Board of the Courts of the New York State Unified Court System’s Office of Court Administration by June 18 (see below). The Administrative Board proposes to adopt ABA Model Rule 8.4(g) in full. CLS’ comment letter explains why that proposal should be opposed.
New York State Unified Court System - Comments due June 18, 2021
The public comment period ends June 18, 2021, on a proposal to adopt ABA Model Rule 8.4(g). The Administrative Board of the New York State Unified Court System proposes to replace New York’s current limited Rule 8.4(g) with the deeply flawed, highly criticized ABA Model Rule 8.4(g).
Persons wishing to comment should email their submissions to email@example.com or write to Eileen D. Millett, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York 10004, by June 18, 2021.
Two quick ways to comment are by (1) signing and emailing/mailing this New York comment letter (or this pdf version of the sample comment letter), which provides the basic common-sense reasons for opposing the proposed rule change; or (2) sending a short email/letter simply stating that you oppose changing New York Rule of Professional Conduct Rule 8.4 to include ABA Model Rule 8.4(g) for the reasons given by Christian Legal Society in its comment letter dated May 18, 2021. Center Director Kim Colby provides 10 reasons why New York should not adopt ABA Model Rule 8.4(g). CLS has prepared a background document that provides information on ABA Model Rule 8.4(g) and why New York should not adopt it.
New York’s current Rule 8.4(g) would allow disciplinary action against an attorney whom a tribunal (other than the Departmental Disciplinary Committee) has found to have engaged in unlawful employment discrimination on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation, if appellate review has been exhausted.
A CLS memorandum on ABA Model Rule 8.4(g) identifies its many problems and why it should not be adopted. To date, it has only been adopted in Vermont and New Mexico. Maine and Pennsylvania adopted a modified version; however, a federal district court enjoined Pennsylvania’s rule after finding it to be facially unconstitutional in Greenberg v. Haggerty.
ABA Model Rule 8.4(g) is not limited to unlawful employment discrimination but to any conduct, including “verbal conduct” (speech) that a lawyer “knows or reasonably should know is harassment or discrimination” on the basis of “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.”
- “Conduct related to the practice of law” is defined to include nearly everything that a lawyer does, including “social activities in connection with the practice of law.”
- “Discrimination” includes “harmful” speech that “manifests bias or prejudice towards others.”
- “Harassment” includes “derogatory or demeaning” speech.
Proposed Rule Changes in New York
Current Rule 8.4 Misconduct
A lawyer or law firm shall not:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability: (1) to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official; or (2) to achieve results using means that violate these Rules or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;
(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding; or
(h) engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.
 Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another, as when they request or instruct an agent to do so on their behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.
 Many kinds of illegal conduct reflect adversely on fitness to practice law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for illegal conduct that indicates lack of those characteristics relevant to law practice. Violations involving violence, dishonesty, fraud, breach of trust, or serious interference with the administration of justice are illustrative of illegal conduct that reflects adversely on fitness to practice law. Other types of illegal conduct may or may not fall into that category, depending upon the particular circumstances. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
 The prohibition on conduct prejudicial to the administration of justice is generally invoked to punish conduct, whether or not it violates another ethics rule, that results in substantial harm to the justice system comparable to those caused by obstruction of justice, such as advising a client to testify falsely, paying a witness to be unavailable, altering documents, repeatedly disrupting a proceeding, or failing to cooperate in an attorney disciplinary investigation or proceeding. The assertion of the lawyer’s constitutional rights consistent with Rule 8.1, Comment  does not constitute failure to cooperate. The conduct must be seriously inconsistent with a lawyer’s responsibility as an officer of the court.
 A lawyer may refuse to comply with an obligation imposed by law upon a goodfaith belief that no valid obligation exists.
[4A] A lawyer harms the integrity of the law and the legal profession when the lawyer states or implies an ability to influence improperly any officer or agency of the executive, legislative or judicial branches of government.
 Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
[5A] Unlawful discrimination in the practice of law on the basis of age, race, creed, color, national origin, sex, disability, marital status, or sexual orientation is governed by paragraph (g).
COSAC Proposed Rule 8.4(g)
A lawyer or law firm shall not:
(g) engage in conduct in the practice of law that the lawyer or law firm knows or reasonably should know constitutes:
(1) unlawful discrimination, or
(2) harassment, whether or not unlawful, on the basis of one or more of the following protected
categories: race, color, sex, pregnancy, religion, national origin, ethnicity, disability, age, sexual
orientation, gender identity, gender expression, marital status, status as a member of the military,
or status as a military veteran.
(3) “Harassment,” for purposes of this Rule, means conduct that is:
a. directed at an individual or specific individuals in one or more of the protected categories;
b. severe or pervasive; and
c. either (i) unwelcome physical contact or (ii) derogatory or demeaning verbal conduct.
(4) This Rule does not limit the ability of a lawyer or law firm to, consistent with these Rules,
a. accept, decline or withdraw from a representation,
b. express views on matters of public concern in the context of teaching, public speeches,
continuing legal education programs, or other forms of public advocacy or education, or in any
other form of written or oral speech protected by the United States Constitution or the New York
State Constitution; or
c. provide advice, assistance or advocacy to clients.
(5) “Conduct in the practice of law” includes:
a. representing clients;
b. interacting with witnesses, coworkers, court personnel, lawyers, and others, while engaging in
the practice of law;
c. operating or managing a law firm or law practice; and
d. participating in bar association, business, or professional activities or events in connection with
the practice of law.
[5A] Unlawful discrimination in the practice of law on the basis of age, race, creed, color, national origin, sex, disability, marital status, or sexual orientation is governed by paragraph (g). Discrimination and harassment in the practice of law undermines confidence in the legal profession and the legal system and discourages or prevents capable people from becoming or remaining lawyers or reaching their potential as lawyers.
[5B] “Unlawful discrimination” refers to discrimination under federal, state and local law.
[5C] Petty slights, minor indignities and discourteous conduct without more do not constitute harassment. However, severe conduct can consist of a single instance. Verbal conduct includes written as well as oral communication.
[5D] A lawyer’s conduct does not violate Rule 8.4(g) when the conduct in question is protected under the First Amendment of the Constitution of the United States or under Article I, Section 8, of the Constitution of the State of New York. This Rule is not intended to discourage and does not prohibit free expression, no matter how popular or unpopular the speaker’s views.
[5E] This Rule is not intended to prohibit or discourage lawyers or law firms from engaging in conduct undertaken to promote diversity, equity, and inclusion in the legal profession, such as by implementing initiatives aimed at (i) recruiting, hiring, retaining, and advancing employees in one or more of the protected categories or (ii) encouraging or assisting lawyers and law students to participate in organizations intended to promote the interests of persons in one or more of the protected categories.
[5F] A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule. Moreover, no disciplinary violation may be found where a lawyer exercises a peremptory challenge on a basis that is permitted under substantive law.
[5G] Nothing in this Rule 8.4(g) is intended to narrow or limit the scope or applicability of Rule 8.4(h) (prohibiting a lawyer from engaging in conduct, whether in or outside the practice of law, that “adversely reflects on the lawyer’s fitness as a lawyer”). Thus, Rule 8.4(h) may sometimes reach conduct that is not covered by Rule 8.4(g).