"NO SMIRKING ALLOWED" 🙄

A New Peril for Lawyers and Firms

By Mitchell T. Borkowsky, Esq.

Effective June 10, 2022, with little fanfare and even less notice among practitioners, the Presiding Justices of the four Judicial Departments of the Appellate Division of the New York State Supreme Court amended the New York Rules of Professional Conduct (22 NYCRR 1200) to bolster NY Rule 8.4(g), a narrow and rarely prosecuted rule of professional conduct prohibiting unlawful discrimination in the practice of law. The amended NY Rule 8.4(g) now makes it easier for aggrieved parties to pursue disciplinary complaints against attorneys for alleged acts of discrimination and, for the first time, extends the prohibition to “harassment” as well. In doing so, NY Rule 8.4(g) is now closer, although not identical to the analogous rule 8.4(g) of the American Bar Association’s Model Rules of Professional Conduct.

Former Rule 8.4(g) – Narrow and Protective [1]

Former NY Rule 8.4(g) prohibited lawyers and law firms from “unlawfully discriminat[ing] in the practice of law, including in hiring, promoting, or otherwise determin[ing] conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status, sexual orientation, gender identity, or gender expression.” Rule 8.4(g) did not contemplate any other kinds of alleged conduct, such as harassment.

Former NY Rule 8.4(g) also provided that prior to filing a complaint with a grievance committee alleging professional misconduct based on discrimination, an aggrieved member of one of the protected classes was required to bring his or her claim of discrimination before a tribunal with jurisdiction to hear such claims, if such a tribunal existed. Only upon the claimant securing a final, non-appealable determination in that other forum that the lawyer or law firm had engaged in unlawful discrimination in the practice of law would a grievance committee be obliged to entertain a complaint.

Former NY Rule 8.4(g)’s requirement that claimants exhaust their administrative remedies in a civil forum before a grievance committee would entertain a complaint of professional misconduct based on unlawful discrimination created a high hurdle for potential claimants. Consequently, grievance committees rarely received or undertook investigations based on alleged discriminatory conduct and even more rarely would they charge a violation of NY Rule 8.4(g) in a resulting disciplinary proceeding. Because of the narrowness and protections afforded lawyers under former NY Rule 8.4(g), unlawful discrimination, whether occurring in the practice of law or otherwise, would most often be charged by grievance committees under the more generic “catch-all” rule of misconduct, NY Rule 8.4(h), which prohibits lawyers from engaging in “other conduct that adversely reflects on [their] fitness as a lawyer.” By viewing the alleged misconduct as “other conduct,” the Grievance Committees were not obligated to await a determination by another forum.

The phrase “in the practice of law” was not defined in former NY Rule 8.4(g). Consequently, ambiguities existed in its interpretation. By its reference to employment related activities, such as “hiring, promoting, or otherwise determin[ing] conditions of employment,” the rule has predominantly been associated with employment discrimination. Although a fair reading of the former rule suggests that it was intended to apply to more than just law firm personnel matters, the extent to which it applied to other situations was somewhat vague and unsettled. To be sure, a lawyer who engaged in unlawful discrimination against someone in her personal life or in a nonlegal business she owned was not subject to a charge of unlawful discrimination under former NY Rule 8.4(g) because the conduct clearly would not have occurred “in the practice of law.” Although seemingly obvious, the rule’s application to discriminatory conduct of a lawyer during court proceedings or in dealings with prospective clients had not been definitively determined in disciplinary proceedings, as so few disciplinary cases involving NY Rule 8.4(g) violations ever materialized.

The Amended Rule – Broader and More Perilous [2]

As described below, the amendments to NY Rule 8.4(g) eliminate many of the ambiguities of the former rule and the restrictions imposed on would-be complainants, while also significantly expanding the rule’s scope by adding to the list of protected classes and including myriad forms of “harassment,” whether lawful or unlawful, as prohibited conduct.

First, the number of protected classes under amended NY Rule 8.4(g) has been expanded to include “pregnancy,” “religion (in place of “creed”),” “ethnicity,” and “status as a member of the military” or “status as a military veteran.” Taken together with the list of protected classes identified in the former rule, the potential for a lawyer to be in violation of NY Rule 8.4(g) has increased exponentially.

Secondly, NY Rule 8.4(g), as amended, specifically addresses what the phrase “conduct in the practice of law” means by eliminating the ambiguous reference to employment issues and leaving no doubt that it includes “(a) representing clients; (b) interacting with witnesses, coworkers, court personnel, lawyers, and others; and (c) operating or managing a law firm or law practice.”

Thirdly, NY Rule 8.4(g) no longer requires a claimant to file an unlawful discrimination complaint with an administrative or civil tribunal or exhaust administrative remedies before filing a complaint with a grievance committee. The amended rule now permits the filing of a complaint directly with a grievance committee and places the onus on the committee to determine in the first instance whether the conduct constituted “unlawful discrimination.” This is a substantial change as, historically, grievance committees have sought to avoid being used as investigative tools for prospective civil litigants, and the former rule provided latitude to punt the issue down the road. Whether the grievance committees will now be overrun with discrimination claims remains to be seen.

To that end, the amended rule eases the burden of proof on the grievance committees and claimants by specifically requiring the committees to establish that the lawyer or law firm engaged in “conduct in the practice of law that the lawyer knows or reasonably should know constitutes unlawful discrimination.” The “reasonably should know” standard undercuts the efficacy of a claim of “lack of knowledge,” a common mitigating factor lawyers could assert if charged with a violation of the rule. Because the burden of proof in disciplinary matters is by a fair preponderance of the evidence rather than by clear and convincing evidence, as in most civil matters, or beyond a reasonable doubt, as in criminal cases, lawyers and law firms will now have substantially more difficulty defending such allegations in the first instance.

Perhaps the most curious, if not significant, change in NY Rule 8.4(g), however, is the specific addition of a prohibition against “harassment” of others, even when the harassment is not unlawful. This change is in keeping with the recent national efforts to battle sexual and gender discrimination highlighted by the #MeToo movement. Significantly, for purposes of NY Rule 8.4(g), “harassment” includes not only physical contact and verbal conduct, but also nonverbal conduct, such as gestures or facial expressions that are directed at an individual or specific individuals and are, at least subjectively to the individuals, viewed as derogatory or demeaning. Although the rule contains a reasonableness check to prevent “petty slights or trivial inconveniences” from giving rise to violations of NY Rule 8.4(g), the implications of this “no-smirk” rule could have far-reaching and unintended consequences.

Because of the subjective nature of harassment claims, particularly ones based on non-verbal gestures, such as smirks or eye rolls, grievance committees will likely be unable to effectively screen such complaints for frivolity or pettiness. Thus, the committees will be required to entertain and open investigations and demand answers from lawyers or law firms in every instance, no matter how frivolous or petty the allegations of harassment may seem or ultimately be proven. Anyone who has ever faced a grievance inquiry knows how stressful and time-consuming responding to one can be. When credibility and subjectivity are the only criteria upon which a grievance committee can render a decision, the inquiries will necessarily be expansive and require personal appearances by lawyers, complainants, and witnesses, in addition to the required written submissions. As stated above, time will tell whether the grievance committees will be overburdened with such matters.

In the interim, lawyers and law firms are cautioned to ensure that they address the new reality of NY Rule 8.4(g) and provide guidance to their staffs on avoiding claims of discriminatory or harassing conduct that, even if determined to be unfounded, can wreak havoc on practices and reputations.

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1. Former Rule 8.4(g): “A lawyer or law firm shall not:

... unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status, sexual orientation, gender identity, or gender expression. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding.”

2. Amended Rule 8.4(g): “A lawyer or law firm shall not:

... 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, 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 contact, 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.

(4) this rule does not limit the ability of a lawyer a law firm to, consistent with these rules:

a. accept, decline, or withdraw from a representation;

b. 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; or

c. provide advice, assistance, or advocacy to clients.

(5) ‘conduct in the practice of law’ includes:

a. representing clients;

b. interacting with witnesses, coworkers, court personnel, lawyers, and others while engaging in the practice of law; and

c. operating or managing a law firm or a law practice...”