The Administrative Board of Courts is seeking public comment on a proposal to adopt ABA Model Rule 8.4(g), which would replace the current rule — Rule 8.4(g) of the New York Rules of Professional Conduct (22 NYCRR Part 1200, Rule 8.4 (g)).
On Friday, March 19, Eileen D. Millett, Counsel, Office of Court Administration circulated a memo to local bar associations that stated:
"Under New York’s current Rule 8.4(g), it is only considered misconduct if an attorney engages in unlawful employment discrimination and the victim of discrimination exhausts all remedies (e.g., by bringing a timely complaint before a tribunal with jurisdiction to hear the complaint, receiving a certified determination by the tribunal that the lawyer engaged in unlawful discriminatory practice, and where the right to judicial or appellate review has been exhausted).
"In contrast, the ABA Model Rule 8.4(g) 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. A – ABA Formal Opinion 493, p. 5). Under the Model Rule, harassment and discrimination in practice-related settings beyond the courtroom (such as law firm social events or bar association functions) and beyond the employment context (such as interactions between lawyers at different firms) are also prohibited. Some other jurisdictions, such as Vermont, New Mexico, and Maine, have adopted rules similar to ABA Model Rule 8.4(g).
"Attached as Exhibit A is the American Bar Association’s Standing Committee on Ethics and Professional Responsibility’s formal opinion 493 (“Opinion”) on Model Rule 8.4(g). Attached as Exhibit B is the New York City Bar’s Professional Responsibility Committee’s proposed amendment to New York Rule of Professional Conduct 8.4(g). The City Bar’s proposal differs from ABA Model Rule 8.4(g) in that, rather than saying that it is “professional 2 misconduct” for a lawyer to engage in harassment or discrimination knowingly on specified bases in conduct related to the practice of law, the City Bar’s rule says that a lawyer or law firm “shall not” engage in conduct related to the practice of law that the lawyer knows or should know is harassment or discrimination on specified bases."
Anyone wishing to comment is asked to email firstname.lastname@example.org or to write to Eileen D. Millett, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York, 10004. All submissions are expected by June 18, 2021.
Click here to read the memorandum in its entirety and to examine the attached exhibits included.