By Anna Berry

The two-year debate on a proposed amendment to the state’s professional conduct rules for attorneys came to a close recently with a decision by the New Hampshire Supreme Court to adopt an version of the amendment drafted by the Attorney Discipline Office instead of one proposed by the Advisory Committee on Rules.

And, although Ethics Committee members who put together the original amendment questioned the “primary purpose” requirement added by the Court, they praised the Court’s “first step in the right direction.”

One year ago this month, the Advisory Committee on Rules voted 12-3 to recommend that the NH Supreme Court amend Rule of Professional Conduct 8.4, which would make it professional misconduct for a lawyer to:”(g) engage in conduct while acting as a lawyer in any context that the lawyer knew or reasonably should have known is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status, or gender identity. Statutory or regulatory exemptions, based upon the number of personnel in a law firm, shall not relieve a lawyer of the requirement to comply with this Rule.”

However, members of the Advisory Committee, including former Chief Justice Robert Lynn, were also adamant that the Supreme Court should hold a rare public hearing on the proposal before making a decision.

The final version of the amendment adopted by the Supreme Court in July makes it professional misconduct for a lawyer to “(g) take any action, while acting as a lawyer in any context, if the lawyer knows or it is obvious that the action has the primary purpose to embarrass, harass or burden another person, including conduct motivated by animus against the other person based upon the other person’s race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status or gender identity.”

Both versions closed by noting that the paragraph “shall not limit the ability of the lawyer to accept, decline, or withdraw from representation consistent with other Rules” and not infringe on the lawyer’s constitutional rights.

The Supreme Court also added the comment: “Subsection (g) is intended to govern the conduct of lawyers in any context in which they are acting as lawyers. … The rule does not prohibit conduct that lacks this primary purpose, even if the conduct incidentally produces, or has the effect or impact of producing, the described result.”

In the decision, the Supreme Court noted the “high level of interest” in the issue since March 2017, when the Ethics Committee first considered whether to recommend the adoption of the American Bar Association’s Model Rule 8.4(g).

“Model Rule 8.4(g) is of relatively recent origin, and a majority of jurisdictions have not yet considered whether to adopt it,” the justices wrote in the July 15 order. “Of those jurisdictions that have considered adopting Model Rule 8.4(g), several have declined to do so.

“As of this writing, only one state, Vermont, has adopted a rule that is nearly identical to the model rule. Maine has adopted a rule that is similar, but is not nearly identical, to Model Rule 8.4(g). As of this writing, Model Rule 8.4(g) remains under consideration in a number of jurisdictions. In light of the nascent and ongoing discussion regarding the model rule, the court declines to adopt the rule proposed by the Advisory Committee on Rules. The amendment to Rule 8.4 that the court adopts today is similar to that proposed by the Attorney Discipline Office in a March 25, 2019 letter submitted prior to the April 12 hearing on the Committee’s proposal.”

While the Supreme Court recommended a review of the new rule by the Advisory Committee after two years, some advocates for the original amendment were not satisfied with the rule as approved by the Court.

“While the NHWBA appreciates the time that the Court has given to this issue and the Court’s efforts, the NHWBA is disappointed with the resulting changes to our Rules of Professional Conduct,” said Christina Ferrari, president of the New Hampshire Women’s Bar Association, in a statement to the Bar News. “Harassment and discrimination are barriers in our profession that we must lead the way in removing, not just reducing.

“It is evident that despite the recent changes to our Rules of Professional Conduct, it is crucial that we, as a Bar collectively, continue to raise our voices against inequality of all kinds. The NHWBA hopes that over the next two years, the discussion regarding Rule of Professional Conduct 8.4(g) will continue, and the Bar will work together to refine it for the betterment of all.”

Since the Ethics Committee recommended the change two years ago, its members have explained that when New Hampshire adopted the ABA’s model rules in 1986, language prohibiting action prejudicial to the administration of justice — a phrase that came to include harassment and discrimination — was not approved.

However, leaders of the ADO opposed the amendment when the proposal came up for a public hearing in front of the Advisory Committee last year and they outlined two alternative amendments — to Rule 8.4(g) and to Rule 4.4, “Respect for Rights of Third Persons” — in subsequent testimony and written comments to the Court.

The subcommittee of the Bar’s Ethics Committee that shaped the original amendment, including attorneys Maureen Smith, Rolf Goodwin, Peter Imse, and Jim Allmendinger, said they remained hopeful that the discussion would continue.

“The Ethics Committee’s Rule 8.4(g) Subcommittee appreciates the Court’s recognition that the prohibited conduct — harassment and discrimination — is a real problem in the New Hampshire Bar,” the subcommittee said in a statement to the Bar News. “The Subcommittee already voiced support for the Court’s taking this first step in the right direction.

“The Subcommittee now remains hopeful that, when the Advisory Committee on Rules conducts its Court-ordered review of the rule’s operation two years from now, the Court will decide to remove the ‘primary purpose’ requirement as an unnecessarily high bar to enforcement of a rule that is not being abused.”

Two dozen members of NHWBA and other female attorneys attended the public hearing in April to voice their support for the original amendment, and many shared personal experiences with harassment and discrimination on the job.

Ferrari said the months of debate highlighted the ongoing challenges in advancing equality across the Bar.

“The discussion shed light on the fact that discrimination and harassment, often exhibited through instances of systemic explicit and implicit bias, are endemic issues in the legal profession as a whole and in our Bar,” she said. “The NHWBA was proud and moved to see and hear from the female attorneys who testified in person and in writing, and who so bravely shared their experiences (often recent) with harassment and discrimination in our Bar.”

 

Advisory Committee on Rules-Approved Amendment

 

“It is professional misconduct for a lawyer to … (g) engage in conduct while acting as a lawyer in any context that the lawyer knew or reasonably should have known is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status, or gender identity. Statutory or regulatory exemptions, based upon the number of personnel in a law firm, shall not relieve a lawyer of the requirement to comply with this Rule.”

 

Supreme Court-Ordered Amendment

 

“It is professional misconduct for a lawyer to … (g) take any action, while acting as a lawyer in any context, if the lawyer knows or it is obvious that the action has the primary purpose to embarrass, harass or burden another person, including conduct motivated by animus against the other person based upon the other person’s race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status or gender identity