Long time readers of this blog know that I have been following the ABA’s Model Rule 8.4(g) since it was first proposed for comment and since it has been adopted (mostly with changes) by several jurisdictions. (Go here and scroll down for all the stories) You might also remember that I have expressed doubts that the ABA’s version would survive a constitutional attack and that Pennsylvania’s version of the rule was, in fact, declared unconstitutional at one point (see here, here and here).
Finally, you may also remember that I expressed that the proposed version of MR 8.4(g) in New York was the best so far. See here.
Well... I recently found out that New York finally officially adopted an amendment to the rules to incorporate the proposal, BUT in the process of approval the actual text of the proposal was changed. Two of the changes improve the text of the proposal, which is very good. The other change makes it worse.
You can read the original proposal here and compare it to the adopted version here.
One good change is simple. It corrected the awkward construction of the part of the rule that lists the "protected categories" about which harassment would be improper. The language in the original proposal made it sound like a few of the categories were examples of "disabilities." The new language makes it clear that those categories are, in fact, categories in and of themselves. The new language also adds a new category: status as a member of the military.
The bad change is that the adopted language eliminated the requirement that to qualify as harassment, the conduct (including the use of speech) had to be shown to be "severe or pervasive." The adopted rule eliminated this requirement and, instead, says that "conduct that a reasonable person would consider as petty slights or trivial inconveniences does not rise to the level of harassment under this Rule."
This is a terrible standard because it is no standard at all. How do we determine what is considered a "petty slight" or a "trivial inconvenience" to the "reasonable person"? Evidently, what one person considers trivial might not be so for another, and some of the more troubling divisions in our society today are precisely based on the fact that people disagree on things like that.
Now, it can be argued that this language is no worse than the language that makes the whole rule depend on a negligence standard, or the language that gives rise to possible discipline in other rules which requires the charging agency to determine what is "reasonable" under the circumstances. But because this rule involves the regulation of speech, the language might also put the rule on a collision course with the First Amendment.
Yet, the drafters want to avoid this collision which leads me to the BEST of all the adopted changes in the rule and one that I am very happy to see: The adopted rule states as part of the rule itself that constitutionally protected speech continues to be protected. In other words, that it would be invalid for the state to use the rule to impose sanctions if the speech that gave rise to the complaint is constitutionally protected. I wish other jurisdictions would follow this example.
Of course, it remains to be seen how the rule is implemented and whether this principle is followed since New York already has a history of imposing sanctions for lawyers using constitutionally protected speech that some found offensive. See here.
Here are some other important highlights about the newly adopted rule in New York:
- the rule only applies to conduct or speech "in the practice of law" which is defined in the rule itself. The Model Rule applies in circumstances that are more broadly defined and include conduct outside the practice of law (if "related to" the practice of law.)
- it is based on a negligence standard. There is no need for the state to show intent.
- it applies to both conduct and speech.
- it explicitly states that the rule does not apply if the conduct or speech is constitutionally protected.
- it recognizes exceptions. If the circumstances fall within these exceptions conduct that would otherwise might be considered discriminatory would not subject the lawyer to discipline. However, this might not prevent the application of other applicable laws related to discrimination.
- the exceptions also recognize circumstances in which a lawyer may not be disciplined for expressing their views on matters of public concern.
Overall, the newly adopted rule in New York is an improvement over versions of the rule I have seen elsewhere, but I confess I have not seen all of them. It is certainly better than the one proposed in Illinois, about which I just recently heard and which contains some terrible language but that is a topic for another day.
If you are interested in the debate related to Model Rule 8.4(g) and the First Amendment, take a look at the articles by Margaret Tarkington, William Hodes, and Bruce Green and Rebecca Roiphe in Volume 50 of the Hofstra Law Review, available here. (Note that this link is to the "current issue" page of the law review so it may not take you to the right Volume once the new issue is published. So, go download the articles now even if you don't have time to read them now because they may not be available for long.) The same issue also has an article on the process that resulted in the adoption of New York's rule by Ellen Yaroshefsky.