On June 10, 2022, New York’s four Appellate Division departments issued a joint order immediately adopting a variation of ABA Model Rule of Professional Conduct 8.4(g) broadly prohibiting discrimination and harassment in the practice of law. Joint Order of the Departments of the New York State Supreme Court, Appellate Division, dated June 10, 2022. New York’s new rule substantially departs from the state’s prior, and much more limited, Rule 8.4(g), which was focused primarily on unlawful discrimination in the workplace. The new Rule 8.4(g) states in relevant part:
Rule 8.4. A lawyer or law firm shall not:
(g) engage in conduct in the practice of law that the lawyer or law firm knows or reasonably should know constitutes:
(1) unlawful discrimination; or
(2) harassment, whether or not unlawful, on the basis of one or more of the following protected categories: race, color, sex, pregnancy, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, gender expression, marital status, status as a member of the military, or status as a military veteran.
(3) “Harassment” for purposes of this Rule, means physical contact, verbal conduct, and/or nonverbal conduct such as gestures or facial expressions that is:
a. directed at an individual or specific individuals; and
b. derogatory or demeaning.
Conduct that a reasonable person would consider as petty slights or trivial inconveniences does not rise to the level of harassment under this Rule.
The new Rule then goes on to carve out exceptions for determining when to accept, decline or withdraw from a representation and for providing advice, assistance, or advocacy to clients. It also seeks to address (and defuse) the First Amendment criticisms leveled at ABA Model Rule 8.4(g) by permitting a lawyer to “express views on matters of public concern in the context of teaching, public speeches, continuing legal education programs, or other forms of public advocacy or education, or in any other form of written or oral speech protected by the United States Constitution or the New York State Constitution.”
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