Public Comments Requested: Proposal to Adopt ABA Model Rule 8.4(g) in New York’s Rules of Professional Conduct

Public Comments Requested: Proposal to Adopt ABA Model Rule 8.4(g) in New York’s Rules of Professional Conduct

3.25.2021

By Brandon Vogel

The Administrative Board of the Courts is seeking public comment on a proposal to adopt ABA Model Rule 8.4(g) to replace Rule 8.4(g) of the New York Rules of Professional Conduct (22 NYCRR Part 1200, Rule 8.4(g)).

Some other jurisdictions, such as Vermont, New Mexico, and Maine, have adopted rules similar to ABA Model Rule 8.4(g).

The current rule presents a bit of a grey area for lawyers who concentrate in legal ethics. In his book “Simon’s New York Rules of Professional Conduct Annotated,” Professor Roy Simon, chair of the Committee on Standards of Attorney Conduct (COSAC), writes, “Although Rule 8.4(g) does not expressly state that a complainant must exhaust administrative and judicial remedies before filing a discrimination complaint with a grievance committee, that is how the rule operates on a practical level.”

“The Office of Court Administration has recognized the importance of combatting discrimination and harassment in the legal profession and has identified various flaws in New York’s existing version of Rule 8.4(g),” said Professor Roy Simon. “COSAC has been hard at work considering possible amendments to existing Rule 8.4(g). In October 2020, COSAC circulated ABA Model Rule 8.4(g) to NYSBA section and committee chairs (and others) and received many suggestions for improving ABA Model Rule 8.4(g).”

COSAC has been actively working with experts on employment discrimination and constitutional law to develop a proposal that will squarely address discrimination and harassment in the legal profession and will also remedy the problems with both New York’s existing rule and the ABA Model Rule, said Simon. COSAC looks forward to presenting an alternative proposal to the Association, and ultimately to the Courts, in the coming months.

The ABA Model Rule 8.4(g), adopted by the ABA House of Delegates in August 2016, states that it is “professional misconduct for a lawyer to engage in conduct that the 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,” though it does not preclude legitimate advice or advocacy consistent with the Rules of Professional Conduct (Ex. AABA Formal Opinion 493, p. 5). The conduct addressed by Rule 8.4(g) harms the legal system and the administration of justice.

Under the Model Rule, harassment and discrimination in practice-related settings beyond the courtroom (such as bar association functions or law firm events) and beyond the employment context (such as interactions between lawyers at different firms) are also prohibited.

Persons wishing to comment on the proposal should e-mail their submissions to rulecomments@nycourts.gov or write to: Eileen D. Millett, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York, 10004. Comments must be received no later than June 18, 2021.

All public comments will be treated as available for disclosure under the Freedom of Information Law and are subject to publication by the Office of Court Administration. Issuance of a proposal for public comment should not be interpreted as an endorsement of that proposal by the Unified Court System or the Office of Court Administration.