Monday, June 14, 2021

New York and Connecticut approve their own versions of Model Rule 8.4(g)

Back in April, I reported that the New York State Bar Association Committee on Standards of Attorney Conduct (“COSAC”) presented a proposed version of Rule 8.4(g) which I thought was much better than the Model Rule originally adopted by the ABA.  See here.

Now, I am reporting that a few days ago, the New York State Bar Association House of Delegates officially voted to adopt the proposed version of Rule 8.4(g).  

In addition, just a day apart, Connecitcut also adopted a version of the rule, originally proposed by the Connecticut Bar Association.  

Connecticut’s version of the rule is more similar to the Model Rule and includes a comment which explains that discrimination “...includes harmful verbal or physical conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories.” 

This is a terrible way to describe the type of speech the rule is meant to regulate since it makes no distinction between protected and unprotected speech.  Were it all the comment said, the rule would likely not survive a Constitutional attack, much like the rule in Pennsylvania. See here, here and here.

Fortunately, the drafters of the rule added a statement in the comment that says that the rule is not intended to interfere with conduct protected by the First Amendment.  Hopefully, this will result in the correct interpretation and application of the rule.  

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