NYSBA: NY Rules of Professional Conduct Must Prohibit Harassment and Discrimination

NYSBA: NY Rules of Professional Conduct Must Prohibit Harassment and Discrimination

6.18.2021

By Brandon Vogel

An increased focus on combatting discrimination and harassment in the legal profession has identified various flaws in New York’s existing version of Rule 8.4(g) on lawyer misconduct, according to a new report by the New York State Bar Association’s Committee on Standards of Attorney Conduct (COSAC).

The report adopted by the Association’s governing body, the House of Delegates, has concluded that Rule 8.4(g) should be expanded to prohibit harassment and discrimination against all classes of people protected by New York’s anti-discrimination law.

“The proposed amendments would make it clear that the legal profession can responsibly regulate itself while promoting diversity, equity, and inclusion,” said T. Andrew Brown, president of the New York State Bar Association (NYSBA). “The current New York rule applies only if an attorney’s conduct constitutes “unlawful discrimination” – it does not prohibit harassing conduct that is not a violation of discrimination law.”

The specific amendments proposed by the committee, include:

• Define misconduct to include behaviors related to the practice of law that occur outside the office such as at a Bar Association event
• Expand the protected classes to conform to New York anti-discrimination laws
• Define “harassment” as severe or pervasive and prohibit it.
• Eliminate the requirement to exhaust administrative remedies before filing a grievance alleging discrimination

According to the report, New York Rule 8.4(g) must be amended to raise the public’s confidence in the legal system and increase opportunities for capable people of all kinds to enter the legal profession and remain there long enough to realize their full potential.

Under the committee’s proposals, harassment and discrimination in practice-related settings beyond the courtroom, such as at Association functions or law firm events, as well as in non-work interactions between lawyers at different firms are also prohibited. The committee found that attorney misconduct often occurred outside the law office or courtroom – a gray area that requires addressing.

The committee proposes to define “conduct in the practice of law” as follows: Conduct in the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaging in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or professional activities or events in connection with the practice of law.

About the New York State Bar Association
The New York State Bar Association is the largest voluntary state bar association in the nation. Since 1876, the Association has helped shape the development of law, educated and informed the legal profession and the public, and championed the rights of New Yorkers through advocacy and guidance in our communities.

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Contact: Brandon Vogel
bvogel@nysba.org
518-487-5644