New York amends rules to adopt a revised version of Model Rule 8.4(g) with a troubling change from the original proposal

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.  In contrast, 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.) 

- like the Model Rule, the new rule in New York is based on a negligence standard.  There is no need for the state to show intent.

- the NY rule applies to both conduct and speech.

- as mentioned above, the new NY rule explicitly states that the rule does not apply if the conduct or speech is constitutionally protected.

- like the Model Rule, the new NY rule 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.

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.

Update on yesterday's report on NY case re UPL

Yesterday, I reported that a district court judge issued a preliminary injunction banning New York's attorney general from enforcing the state's law against the unauthorized practice of law against a company called Upsolve which provides help to clients facing debt collection problems.

Today, Bloomberg is reporting that the New York Attorney General has filed an appeal of the injunction before the US Court of Appeals for the Second Circuit.

As I said in yesterday's post, the result in this case can have significant implications for the regulation of the profession, so stay tuned!

Thanks to Roy Simon for the update!

Federal District Court judge rules that the First Amendment protects those who provide legal advice in certain cases, even if they are not lawyers

If you follow professional responsibility news, you probably know by now that last month the Federal District Court for the Southern District of New York issued a preliminary injunction to prevent the state's Attorney General from instituting actions against a nonprofit company called Upsolve, which was created to provide free legal advice to individuals facing debt collection actions.  Why would the state go after Upsolve?  Because the legal advice would be provided by people who are not lawyers, and this might be considered to be a violation of the state's law against the "unauthorized practice of law."

I have not read the opinion in detail so I will just provide the background and give you some links to full commentary by other authors.  You can read the full opinion here.  For excellent comments on the case go here and here.  For a podcast discussing the case, go here.

Upsolve plan is to train "Justice Advocates" (who are not lawyers) to provide limited legal advice to lower-income New Yorkers who face debt collection actions.  The advocates' assistance would be limited to helping individuals fill out forms provided by the state for the purpose of helping those individuals avoid default.  If a "client" were to need more legal services, the advocates are supposed to refer them to a lawyer.

Upsolve believed their services did not violate the UPL law, but just to make sure, it filed a petition for an injunction to prevent New York’s attorney general from trying to enforce the UPL law.  

In support of its position, Upsolve argued that New York UPL law interfered with the plaintiffs’ right to associate in order to fulfill their objectives and that it infringed on the plaintiff's freedom of expression.

In the opinion, issued about a month ago, the judge dismissed the argument based on freedom of association, but granted the injunction on the basis of the argument related to freedom of expression stating that

. . . a preliminary injunction is warranted. The UPL rules cannot be applied to Plaintiffs’ program because the First Amendment protects their legal advice as speech, and the UPL rules are not narrowly tailored to satisfy strict scrutiny in this context. Further, the balance of equities favors an injunction because Plaintiffs’ program would help alleviate an avalanche of unanswered debt collection cases, while mitigating the risk of consumer or ethical harm. And enjoining enforcement against Plaintiffs alone, whose activities are carefully limited to out-of-court advice, will not threaten the overall regulatory exclusivity of the legal profession. 

Before we go any further, note that the decision is not a decision on the merits.  It is only a decision on whether to grant a preliminary injunction.  It is possible that the plaintiffs will lose the action in the end and the injunction will be dissolved, but, obviously, the decision to grant the injunction is based on the fact that the judge believes the plaintiffs are likely to win on the merits.

Although I agree that there is a huge need to find ways to provide more access to legal representation, I am not sure that concluding that legal advice by people who are not lawyers is protected speech is a good way to do it.  Unless this conclusion is limited (which the court tried to do), this could mean that anyone ignorant of the law can claim to have a right to give legal advice.  This would not be a good result.  It may actually result in more harm to the public.  I think it is true that the notion of the regulation of the profession has an element of protectionism, but it also has an element of protecting the public.  And since both the goal of protecting the public, and the goal of providing better access to representation are equally important, those in charge of the regulation of the profession need to find a compromise.  

The good news is that, as one commentator has suggested, there are at least three other approaches that could be used to address the conflict between the regulation of the practice of law and the need to provide better access to representation.  For example, we can redefine the “practice of law” to exclude the type of service that Upsolve is providing.  Second, the state can develop a program to allow licensed nonlawyers to provide certain limited legal services, as has been done in other states.  And, third, New York could follow Utah’s lead and develop a “regulatory sandbox,” where those who wish to explore legal services models outside our current regulatory structure can do so under tight supervision.  

New disciplinary charges filed against Texas Attorney General and against Rudy Giuliani for their participation in attempts to overturn the 2020 presidential elections

The Texas state bar has sued the state's Attorney General Ken Paxton arguing professional misconduct for trying to void Biden election.  Courthouse News Service has the story here and Above the Law has a comment here.

Meanwhile, the District of Columbia office of disciplinary counsel has filed charges against Rudy Giuliani alleging that he made baseless claims in federal court filings about the results of the 2020 presidential election in Pennsylvania.  You can read more about this story in The Guardian, Politico, Jurist and the Legal Profession Blog.