Arguments Against Amendment are Misplaced

Dear Colleagues,

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.

Anyone, whether layperson or lawyer, can read the amended rule and see that it is intended to make it an ethical violation to engage in harassing or discriminatory behavior, as it should be. The arguments against the amendment are the result of placing undue weight on how the rule could or might be enforced in the future. They assert that terms must be defined and scope must be drawn or else the rule may capture more conduct than intended.

These arguments are misplaced. The Rules of Professional Conduct, like any text, are at points less clear than they could be. What constitutes “reasonable diligence” (Rule 1.3), when can we reasonably believe it necessary to disclose confidential information (Rule 1.6), and who is a “former client” (Rule 1.9)? These are imponderables we live with every day. Will the adoption of Rule 8.4(g) unduly restrict our professional lives where we already practice under the broad proscriptions in the existing rules? It seems highly unlikely.

Although the limits this amendment would place on our day-to-day practice are fleeting, no one can deny that its adoption would be impactful. We can argue about the degree to which harassment and discrimination exist in the legal profession, but it is undeniable that they exist. It is equally beyond debate that we are living in a cultural moment when recognition of harassment, inequality, and discrimination occupies a significant place in the national conversation. What better time than now to amend Rule 8.4(g)? We as lawyers have always held ourselves to a higher standard than the general public. We should not let fears of what might come cloud our better judgment.

This is a simple amendment that makes a powerful statement.

The New Hampshire Supreme Court should adopt it.

Respectfully,

Ned Sackman