Is NY’s New Professional Conduct Rule 8.4(g) Heading to the Courts?

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A piece from New York Law Journal references a co-authored law review article by Professor Bruce Green and Professor Rebecca Roiphe (New York Law School) and highlights the Professors’ criticism of the ABA Model Rule.

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.

New York’s adoption came a year after the New York State Bar Association (NYSBA) House of Delegates proposed a slightly different version the ABA Model Rule to the courts. New York State Bar Association Committee on Standards of Attorney Conduct, Proposal To Amend Rule 8.4(g) of the New York Rules of Professional Conduct, dated June 4, 2021 and adopted by the NYSBA House of Delegates on June 12, 2021 (hereinafter Proposal To Amend).

While the Appellate Division departments adopted much of the NYSBA proposal, they made some significant changes, broadening the rule in some respects and narrowing it in others. Nonetheless and based on the history of ABA Model Rule 8.4(g) in other states, it is highly likely that New York’s new Rule will face a Constitutional challenge—either proactively or in response to sanctions imposed on a lawyer.

By way of background, although ABA Model Rule 8.4(g) was widely praised for its intent when it was adopted in 2016, the rule quickly became controversial because of complaints that it infringed First Amendment rights and was both vague and overbroad.

While embracing the spirit of ABA Model Rule 8.4(g), the NYSBA’s version of the rule sought to address the criticisms raised by the Pennsylvania court and by some commentators. See ABA Model Rule 8.4(g), Discriminatory Speech, and the First Amendment, Profs. Bruce A. Green and Rebecca Roiphe, Hofstra L. Rev. Vol. 50, Issue 3 (2022), urging states not to adopt Model Rule 8.4(g) because its constitutional challenges were unavoidable and likely insurmountable.

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