As I am sure you know, I have been writing about Model Rule 8.4(g) since way back when it was first proposed. See here. Over time, I have expressed my concerns about its vulnerability to attack under First Amendment principles, and my concern was proven valid when recently a similar rule was declared unconstitutional in Pennsylvania. See here, here and here, for more on that story in particular.
But that is not what I want to talk about today. Today I am more optimistic.
On Friday afternoon the New York State Bar Association Committee on Standards of Attorney Conduct (“COSAC”) posted for public comment a proposed version of Rule 8.4(g). Comments are welcome until May 28 deadline and they want comments from inside and outside of New York. I am trying to find a link, and will post it here when I do.
In my opinion, this version of the rule is much better than the Model Rule originally adopted by the ABA. It is carefully drafted to limit the reach of the Model Rule, and to avoid the potential problems regarding its constitutional validity.
First, the proposed rule rejects the Model Rule’s language of "conduct related to the practice of law" and instead applies to "conduct in the practice of law" which is much more limited. This simple change addresses the possible issue of overbreadth in the Model Rule.
But the most important improvements over the Model Rule are in the way the proposed rule refers to or defines the type of conduct it regulates.
For example, the proposed rule starts by adding the word “unlawful” to the word discrimination. Thus, the drafters of the rule recognize that there can be discrimination that is not unlawful and that the legal authorities that define that distinction are going to be relevant to determine how to apply the rule.
This simple addition of one word also guards against the possible unconstitutional application of the rule. Because the Model Rule does not make that distinction, it is possible to interpret it to allow regulation of protected speech. By limiting the application of the rule to “unlawful discrimination” the authority of the state to regulate speech is more limited, and presumably will be understood to allow only regulation of speech that is not constitutionally protected.
In addition, the proposal provides a good definition of harassment, which also limits the application of the rule, thus, also making it less vulnerable to constitutional attacks.
The proposed rule defines harassment as conduct, whether physical or verbal, that is severe or pervasive and directed at an individual or specific individuals in one or more of several specific protected categories. Again, this description limits the application of the rule tremendously when compared to the Model Rule. And that is a good thing. By limiting the notion of "verbal conduct" to speech directed at specific individuals, the proposal avoids the interpretation that it can be used to regulate protected speech that is offensive but constitutionally protected.
In terms of the protected categories, the proposed rule in New York adds a few but eliminates the most problematic of the one in the Model Rule (socio-economic status). Thus, the proposed rule adds pregnancy, gender expression, status as a member of the military, and status as a military veteran, none of which I have a problem with; but it also adds the word “color” which I am not sure is needed since the rule already mentions race and ethnicity. For the sake of clarity, I would at least suggest to say “skin color” rather that just “color.”
All told, the proposed new rule in New York is the best version of an anti-discrimination Model Rule 8.4(g) type rule I have seen yet.
If you want to send comments to the committee, you can contact Professor Roy Simon directly.