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Rule 8.4(g) – Professional Conduct Rule Amendment
Per the New Hampshire Supreme Court’s July 15, 2019 order:
Amend New Hampshire Rule of Professional Conduct 8.4 (new material is in [bold and in brackets]) as follows: Rule 8.4. Misconduct It is professional misconduct for a lawyer to: … [; or (g) take any action, while acting as a lawyer in any context, if the lawyer knows or it is obvious that the action has the primary purpose to embarrass, harass or burden another person, including conduct motivated by animus against the other person based upon the other person’s race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status or gender identity. This paragraph shall not limit the ability of the lawyer to accept, decline, or withdraw from representation consistent with other Rules of Professional Conduct, nor does it preclude a lawyer from engaging in conduct or speech or from maintaining associations that are constitutionally protected, including advocacy on matters of public policy, the exercise of religion, or a lawyer’s right to advocate for a client.
New Hampshire Supreme Court Comment Subsection
(g) is intended to govern the conduct of lawyers in any context in which they are acting as lawyers. The rule requires that the proscribed action be taken with the primary purpose of embarrassing, harassing or burdening another person, which includes an action motivated by animus against the other person based upon the other person’s race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status or gender identity. The rule does not prohibit conduct that lacks this primary purpose, even if the conduct incidentally produces, or has the effect or impact of producing, the described result.]
NH Supreme Court Orders:
Order amending Rule of Professional Conduct 8.4 – July 15, 2019
Order scheduling a public hearing on proposed amendment to Rule of Professional Conduct 8.4
Order requesting comment on Advisory Committee on Rules February 2019 Report
Resources
The Advisory Committee on Rules’ report to the Supreme Court- February 8, 2019
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
New Hampshire Bar News Coverage & Dialogue
Bar News September 18, 2019
By Anna Berry
Bar News May 15, 2019
By Anna Berry
Philip Schreffler
February 14, 2019
In October 2018, I read an article, “Sounding the Alarm on a Misguided Conduct Rule.” The author came out strongly to an amendment to the Rules of Professional Conduct 8.4 forbidding any conduct that discriminates against protected classes. I disagreed with it at the time, but had a lot on my plate, and just didn’t have time to address the problem.
But there it was, gnawing in the back of my mind, the gadfly of a misguided opinion…
Ned Sackman
January 16, 2019
I write in support of the amendment to Rule of Professional Conduct 8.4(g) now pending before our Supreme Court. Like virtually all of us, I am against harassment and discrimination. This is not a controversial position. Yet there are serious parties of all stripes that have voiced objections to amended Rule 8.4(g). Upon reviewing the arguments against the amendment, respectfully, I find them overstated.
Charla Bizios Stevens, Sabrina C. Beavens, Heather M. Bums, Joni N. Esperian, Lauren Simon Irwin, Linda S. Johnson, Katie Kieman Marble, Terri L. Pastori and Connie Rakowsky
December 10, 2018
Proposed Rule of Professional Conduct 8.4(g) is a reasonable and appropriate way to address the problem of harassment and discrimination in our profession, a problem which continues to exist despite state and federal anti-discrimination laws which have been on the books in New Hampshire for over 100 years and for 50 years at the federal level.
Sara B. Shirley
November 1, 2018
To the Editor of NH Bar News:
Maureen D. Smith, Orr & Reno, P.A., Peter F. Imse, Sulloway & Hollis, Rolf Goodwin, McLane Middleton and James Allmendinger, Law Offices of James F. Allmendinger, are long-standing members of the NHBA Standing Committee on Ethics and members of the Committee’s Rule 8.4(g) Subcommittee.
October 18,2019
We want to correct some of the misunderstandings raised in a letter published in the October 17, 2018 Bar News about the proposed ethics rule on harassment and discrimination currently before the New Hampshire Supreme Court. Rather than “Sounding the Alarm on a Misguided Conduct Rule,” we, the members of the Rule 8.4(g) Subcommittee of the Bar’s Standing Committee on Ethics, write to explain the facts on the real purpose, scope and effect of the proposed rule.
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
Jim Allmendinger
April 19, 2017