On September 7, 2018, the Advisory Committee on Rules voted 12-3 to recommend that the NH Supreme Court amend Rule of Professional Conduct 8.4 by adopting the following provision, according to the secretary of the committee, Carolyn Koegler, which would make it professional misconduct for a lawyer to:

(g) engage in conduct while acting as a lawyer in any context that 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.  This paragraph shall not limit the ability of the lawyer to accept, decline, or withdraw from representation consistent with other Rules, nor does it infringe on any Constitutional right of a lawyer, including advocacy on matters of public policy, the exercise of religion, or a lawyer’s right to advocate for a client.”

The Committee also recommended that the Supreme Court hold a hearing on the proposal; both recommendations will be included in Koegler’s bi-annual report to the court on February 1, 2019.

Resources

Advisory Committee on Rules

To learn more about the committee, visit www.courts.state.nh.us/committees/adviscommrules/index.htm

Supreme Court’s Rule-Making Procedures

To learn more about Rule 51, visit https://www.courts.state.nh.us/rules/scr/scr-51.htm

ABA Model Rule of Professional Conduct 8.4

https://www.americanbar.org/groups/professional_responsibility/committees_commissions/ethicsandprofessionalresponsibility/modruleprofconduct8_4/

New Hampshire Bar News Coverage & Dialogue

Proposed Rule of Professional Conduct 8.4(g) – A Vague and Overbroad Speech Code for Lawyers

Sara B. Shirley
November 1, 2018

 Adopt Professional Conduct Rule to Promote Fairness and Equality Across Bar

Christina Ferrari, NH Women’s Bar Association
September 19, 2018

The New Hampshire Women’s Bar Association (NHWBA) strongly supports the adoption of Proposed Rule of Professional Conduct 8.4(g), which the New Hampshire Supreme Court Advisory Committee on Rules recently recommended after a 12-3 vote.

Sounding the Alarm on a Misguided Conduct Rule

Eugene Van Loan
September 19, 2018

The NH Bar Ethics Committee and the Supreme Court’s Advisory Committee on Rules have recently been considering a proposal to add a provision to our Rules of Professional Conduct which would punish lawyers who engage in “harassment” or “discrimination.” The impetus for the proposed rule is a recent amendment by the American Bar Association to its Model Rules of Professional Responsibility. Because the deliberations surrounding this issue have pretty much been conducted under the radar of most NH Bar members, it is time to sound the alarm about this misguided proposal.

Proposed Conduct Rule on Discrimination & Harassment Sparks Debate

June 20, 2018

NH Bar Proposes Rule Prohibiting Harassment and Discrimination in Law Practice

Jim Allmendinger
April 19, 2017