Bar News - April 19, 2017
NH Bar Proposes Rule Prohibiting Harassment and Discrimination in Law Practice
By: Jim Allmendinger
During a deposition, a male lawyer comments to female opposing counsel, “Don’t raise your voice, it is not becoming of a woman.” Does this conduct violate the American Bar Association’s newly adopted Model Code of Professional Responsibility Rule 8.4(g) prohibiting harassment and discrimination?
Yes, it would, at least according to one federal court. As the district court judge put it, “A sexist remark is not just a professional discourtesy.” It’s worse than that. “[I]t reflects not only on the attorney’s lack of professionalism, but also tarnishes the image of the entire legal profession and disgraces our system of justice,” the judge wrote in Claypoole v. County of Monterey (Northern District of California, 2016).
Strong words, but issues raised by bias and discrimination have been hotly debated for a long time. Now these issues are getting renewed attention. The American Bar Association voted in August 2016 to amend its Model Rules of Professional Conduct to ban harassment and discrimination in the practice of law. Evidence of discrimination against women, minorities and the disabled in the practice of law was compelling.
In February 2017, the New Hampshire Bar Association Ethics Committee recommended a change in the New Hampshire Rules of Professional Conduct, making many forms of discrimination an ethical violation. And on March 9, 2017, the NHBA Board of Governors voted to approve submission of the proposed rule change to the New Hampshire Supreme Court Advisory Committee on Rules, the body that would make a recommendation to the New Hampshire Supreme Court, which ultimately decides whether to adopt new rules.
The proposed rule reads as follows:
“Rule 8.4. Misconduct. It is professional misconduct for a lawyer to: (g) engage in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, or marital status. This paragraph does not limit the ability of the lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.”
The proposed change is notable in several respects. First, New Hampshire is one of only a handful of states that has no anti-discrimination rules or comments covering lawyers’ ethics. When New Hampshire rewrote its Rules of Professional Conduct in 2007, it did not adopt subsection (d) of Model Rule 8.4, relating to the administration of justice. As a result, New Hampshire took no action regarding the ABA’s 1998 Comment 3 prohibiting lawyer bias or prejudice. Hence, our state’s current rules and comments make no reference to bias or discrimination in the practice of law.
Second, the proposed rule mirrors the state’s anti-discrimination law. As a result, the rule does not include the ABA’s bans on discrimination on the basis of gender identity or socioeconomic status. That does not reflect an abandonment of those concerns. With regard to gender identity, pending adoption by the Supreme Court of the rule change, the Ethics Committee has adopted a new Ethics Committee Comment 5:
“As used in this Rule, discrimination and harassment based upon ‘sex’ and ‘sexual orientation’ are intended to encompass same-sex discrimination and harassment, as well as discrimination and harassment based upon gender identity.”
With regard to socio-economic status, there were concerns about what that term means in this context. Socio-economic injustice is an important issue for lawyers, but the proposed rule does not address it.
The proposed New Hampshire Rule also deleted the ABA Model Rules’ “free speech” exception for “legitimate advice or advocacy.” In its place, the new Ethics Committee Comment 6 states:
“This Rule is not intended to infringe on a lawyer’s rights of free speech or a lawyer’s right to advocate for a client in a manner that is otherwise consistent with these Rules.”
What This Means for You
Overall, the proposed New Hampshire rule “tweaks” the ABA Model Rule but includes most of its working parts, as discussed above. By incorporating the protections against discrimination in New Hampshire law, the proposed rule avoids breaking new ground in discrimination law. In that sense, the proposal is less restrictive than the ABA Model Rule.
The proposed rule raises a number of questions. What falls within the phrase “conduct related to the practice of law”? Guidance comes from the ABA’s description of “the practice of law.” That includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others; managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law (ABA Model Rule 8.4(g), Cmt. 4).
The proposed rule would make it a violation to “knowingly harass or discriminate” on the basis of race, sex and other protected categories. How does one “know” what conduct is prohibited? Ethics Committee Comment 3 addresses that:
“The substantive state and federal law of anti-discrimination and anti-harassment statutes and related case law is intended to guide the application of subsection (g); however, statutory or regulatory exemptions, such as those based upon the number of personnel in a law office, shall not relieve a lawyer of the requirement to comply with this Rule.”
Here, the proposed rule intersects with labor and employment law. For example, Title VII and New Hampshire’s anti-discrimination statute do not reach small firms with fewer than six employees. Partners are not always covered by these laws, either, because partners are often owners of their “law businesses” and are excluded from the protections of the law as “employers.” The proposed rule has broader reach, because it would apply to all attorneys engaged in the practice of law, as well as their firms, regardless of size or partnership status.
Other differences are also significant. Labor and employment lawyers know that a mens rea requirement is a higher level of proof than required by either Title VII or our state’s anti-discrimination law. So, too, is the requirement of the proposed rule of proof by “clear and convincing evidence.” Both are significant protections for lawyers whose clients are not always happy with outcomes.
The ABA has noted that in the 25 states that have prohibitions on discrimination and harassment, adoption of such a rule has not prompted an apparent increase in complaints about lawyer misconduct. Hence the proposed rule, if adopted in New Hampshire, could strike the right balance by furthering an important interest – protection against harassment and discrimination in the practice of law – without putting lawyers at an unreasonable risk of being subjected to additional attorney discipline. (Learn about a related CLE.)
Jim Allmendinger is a solo practitioner in Durham, NH, who represents unions and employees in matters of labor and employment law. He is a past chair of the NHBA Labor and Employment Law Section and a current member of the NHBA Ethics Committee. The views expressed in this article are his alone; he is not writing on behalf of the Ethics Committee.