To the Editor of NH Bar News:

We want to correct some of the misunderstandings raised in a letter published in the October 17, 2018 Bar News about the proposed ethics rule on harassment and discrimination currently before the New Hampshire Supreme Court. Rather than “Sounding the Alarm on a Misguided Conduct Rule,” we, the members of the Rule 8.4(g) Subcommittee of the Bar’s Standing Committee on Ethics, write to explain the facts on the real purpose, scope and effect of the proposed rule.

Fact 1:  New Hampshire’s current ethics rules do not prohibit discrimination or harassment. 

The letter’s author suggests that the only purposes of New Hampshire’s Rules of Professional Conduct are to “protect clients from harm” and to “promote the integrity of the judicial system,” neither of which he contends is promoted by the new rule.  In fact, the Statement of Purpose that precedes the Rules says that their purpose is to “constitute the disciplinary standard for New Hampshire lawyers” that “together with law and other regulations governing lawyers … establish the boundaries of permissible and impermissible lawyer conduct.”  The Supreme Court has also separately observed that the purpose of attorney discipline is to protect the public, maintain public confidence in the bar, preserve the integrity of the legal profession and prevent similar, future conduct.

Even so, our existing Rules have an obvious gap – they simply do not directly address lawyer behavior that amounts to harassment or discrimination.  Unlike at least 25 other states that have already adopted various lawyer anti-discrimination rules and most other professional occupations we have no “catch-all” to prohibit even the most egregious harassment or discrimination by lawyers. The proposed rule would establish permissible boundaries for lawyer misconduct to achieve the dual purpose of protecting the public and the integrity of the legal profession.

Fact 2:   The proposed rule is the unique product of a public process and collaboration.  

The proposed rule has evolved over the last two years through a public and transparent process to become a “rule of reason,” as called for in New Hampshire’s Rules Statement of Purpose.  The proposal differs markedly from the American Bar Association’s Model Rule 8.4(g) adopted in 2016, balancing competing interests as result of intensive collaboration and negotiation between proponents and opponents. After reviewing the statistics that formed the basis for the Model Rule, the Ethics Committee developed its own version, resulting in a unique New Hampshire rule that would advance the core values of our members.  After approval by the Board of Governors, our draft was forwarded to the Supreme Court Advisory Committee on Rules (“ACR”), which published public notice with alternative proposals for comment and hearing.  A public hearing was held on June 1, 2018 to consider written and oral testimony, which was substantial, as indicated by the ACR docket.  Throughout this whole process, the Bar News published several notices and articles for members of the Bar.

Opposition based on vagueness concerns and First Amendment speech and religious freedom concerns prompted the ACR to appoint two of its members, Senator Daniel Feltes and Attorney Jeanne Herrick, to chair a working group tasked with generating compromise language. After months of discussion, the ACR representatives on the working group returned to the ACR with a compromise proposal.  The compromise was further amended by the ACR to apply a scienter element that would counter any potential uncertainty on the type of misconduct being prohibited.  All proceedings were published on the ACR agenda.  These combined efforts culminated in a unique New Hampshire rule that was not developed “under the radar,” and that could potentially be a model for other states.

Fact 3:  The proposal does not prohibit conduct outside of the practice of law.

While some Rules extend to lawyer conduct that occurs outside the practice of law, the proposed Rule is not one of them.  The proposal is carefully crafted to apply only to “conduct while acting as a lawyer.”  This language makes clear that the proposal does not extend to conduct that occurs while a lawyer is acting in a personal capacity. In contrast, Rule 8.4(c) prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, regardless of whether the conduct occurs in a professional or personal setting.  For the author to suggest that the proposal would “extend the reach of the attorney discipline system into territory that has no intrinsic relationship whatsoever to the practice of law” is simply inaccurate, as it is expressly limited to just that.

 

Fact 4:  The lack of defined terms does not make the proposal vague.

The author contends that the proposal exposes lawyers to a “vague” code of civility and that failure to define “harassment” and “discrimination” will result in “arbitrary application of a vague rule.”  Putting aside the fact that our disciplinary authorities already enforce many “undefined” forms of misconduct, including “dishonesty,” “deceit” and “misrepresentation” under Rule 8.4(c), the proposal is crafted to ensure that attorney discipline would result only in the clearest cases. First, the large body of underlying, substantive law on the topics of harassment and discrimination would necessarily have to form the basis for any disciplinary action, as it does with any disciplinary matter involving statutes, rules and interpretive case law.  Second, even though constitutional protections are not capable of being altered by ethics rules, the proposal expressly excludes regulation of conduct protected by the First Amendment, including speech and religious freedom, while also preserving a lawyer’s ability to decline and terminate representation. Third, disciplinary authorities would have the burden to prove under the Supreme Court’s “clear and convincing evidence” standard not only that the prohibited conduct involving harassment or discrimination, but also that the lawyer knew or should have known that the conduct constituted harassment or discrimination. These limitations and other protections built into the attorney discipline system will ensure that frivolous and unsupported complaints are weeded out early in the process and do not result in unnecessary proceedings.

Rather than sounding the alarm, New Hampshire practitioners should express their support for this timely update to our Rules.  Lawyers who treat others as they wish to be treated have nothing to fear from a rule that fairly reflects our professional obligations and values.

 

Maureen D. Smith, Orr & Reno, P.A., Peter F. Imse, Sulloway & Hollis, Rolf Goodwin, McLane Middleton and James Allmendinger, Law Offices of James F. Allmendinger, are long-standing members of the NHBA Standing Committee on Ethics and members of the Committee’s Rule 8.4(g) Subcommittee.

Learn more about the proposed rule amendment and read other responses here: https://www.nhbar.org/professional-conduct-rule-amendment-continuing-conversation/