A Better Proposal for the New York Rules of Professional Conduct

A Better Proposal for the New York Rules of Professional Conduct

6.15.2021

By Brandon Vogel

The New York State Bar Association thinks the state’s Rules of Professional Conduct should prohibit harassment and include behavior that is related to the legal profession but occurs outside the office such as at a bar association event.

A report by NYSBA’s Committee on Standards of Attorney Conduct adopted June 12 by the association’s governing body, its 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. “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 committee said New York should correct flaws in its existing rule, 8.4(g), on lawyer misconduct instead of adopting a model rule that adopted by the American Bar Association.

Professor Ellen Yaroshefsky (Hofstra Law) told the House of Delegates that harassment is a significant problem within the legal profession, as is discrimination. “We believe it incumbent upon ourselves to develop a report and a rule that would address harassment.”

The ABA Rule has been declared unconstitutional in Louisiana and Pennsylvania while some other jurisdictions, such as Vermont, New Mexico, and Maine, have adopted rules similar to ABA Model Rule 8.4(g). “We do not believe that we should adopt that rule in New York” because it is too broad in scope and does not address harassment.

Yaroshefsky said she believed that the committee’s proposal was fair to lawyers, provides adequate notice and stands a much better chance of passing constitutional muster than the ABA Model Rule. “We don’t think it’s perfect, but we think it’s quite good and I will say that nationally we have received positive feedback about our proposal.”

The amendments proposed by the committee specifically:

• 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 prohibits it. The ABA rule doesn’t prohibit harassment.
• Eliminate the requirement to exhaust administrative remedies before filing a grievance alleging discrimination

COSAC’s proposal fixes the weaknesses in the proposed model rule. As an example, the ABA Model Rule 8.4(g) prohibited conduct while a lawyer is working in a law office, but not when a lawyer is attending CLE programs or firm events. The committee found misconduct most often occurred outside the law office or courtroom.

To address this, 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.

In defining harassment, the committee said that harassment must be severe or pervasive.

According to the report, it is important to amend New York Rule 8.4(g) to raise the public’s confidence in the legal system and to increase opportunities for capable people of all kinds to become lawyers, to remain lawyers, and to reach their full potential as lawyers.

Under the rule prosed by the committee, 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.