ABA Model Rule 8.4(g) Efforts in New Hampshire
Status of Action in New Hampshire
Status – The New Hampshire Supreme Court Advisory Committee on Rules is considering adopting ABA Model Rule 8.4(g).
On September 6, 2018, CLS filed with the New Hampshire Supreme Court Advisory Committee on Rules supplemental comments regarding ABA Model Rule 8.4(g). CLS had previously submitted comments before the close of the comment period but filed the supplemental comments to bring to the attention of the members of the New Hampshire Supreme Court Advisory Committee on Rules the decision handed down by the U.S. Supreme Court in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018), which was after the comment period in New Hampshire closed. The supplemental comments also noted the recent decision by the Arizona Supreme Court to reject a petition that would have amended the Arizona Rules of Professional Conduct to include ABA Model Rule 8.4(g).
Comments due May 31! Public hearing June 1 at 12:30 pm!
The New Hampshire Supreme Court Advisory Committee on Rules is considering amending its current misconduct rules to add ABA Model Rule 8.4(g). On April 3, 2018, the New Hampshire Supreme Court Advisory Committee on Rules issued a Public Hearing Notice, opening a comment period on court rules proposals and noticing a public hearing.
Pursuant to the notice, the New Hampshire Supreme Court Advisory Committee on Rules is accepting comments on the court rules proposals, including Rule of Professional Conduct 8.4 Harassment and Discrimination. Specifically, the New Hampshire Supreme Court Advisory Committee on Rules is requesting comment on three (3) different proposed amendments to RPC 8.4. The different versions are set forth in Appendices K-M of the Public Hearing Notice (pp. 20-25).
Christian Legal Society filed its comment letter on May 25, 2018. CLS also prepared a two-page summary for New Hampshire attorneys on why the New Hampshire Supreme Court should reject ABA Model Rule 8.4(g).
Comments may be submitted in writing to the secretary of the Supreme Court any time on or before May 31, 2018. Comments may be emailed to firstname.lastname@example.org or mailed or hand delivered to the following address: N.H. Supreme Court, Advisory Committee on Rules, 1 Charles Doe Drive, Concord, NH 03301. CLS will be filing a comment letter shortly opposing adoption of the proposed rule.
Also pursuant to the notice, the New Hampshire Supreme Court Advisory Committee on Rules will hold a public hearing on Friday, June 1, 2018 at 12:30 pm at the Supreme Court Building on Charles Doe Drive in Concord.
CLS' Kim Colby was featured on The Federalist Society Blog discussing the consideration of ABA Model Rule 8.4(g) in New Hampshire.
A joint committee composed of members of the New Hampshire Bar Association Ethics Committee and the New Hampshire Supreme Court Advisory Committee on Rules is revising a proposed rule change. The New Hampshire Bar Association Ethics Committee presented a proposed rule change to the New Hampshire Supreme Court Advisory Committee on Rules. At the meeting, members of the Advisory Committee on Rules expressed concerns about the proposed rule change. It was decided that members of both committees would work together to revise the proposed rule change in time for the September 15, 2017 meeting.
In February of 2017, the New Hampshire Bar Association Ethics Committee recommended a change in the New Hampshire Rules of Professional Conduct, making many forms of discrimination an ethical violation. On March 9, 2017, the New Hampshier Bar Association Board of Governors voted to approve submission of the proposed rule change to the New Hampshire Supreme Court Advisory Committee on Rules, the body that would make a recommendation to the New Hampshire Supreme Court, which ultimately decides whether to adopt new rules.
The proposed rule is notable in several respects. First, New Hampshire is one of only a handful of states that has no anti-discrimination rules or comments covering lawyers’ ethics. When New Hampshire rewrote its Rules of Professional Conduct in 2007, it did not adopt subsection (d) of Model Rule 8.4 relating to the administration of justice. As a result, New Hampshire took no action regarding the ABA’s 1998 Comment 3 prohibiting lawyer bias or prejudice. Hence, the state’s current rules and comments make no reference to bias or discrimination in the practice of law.
Second, the proposed rule mirrors New Hampshire’s anti-discrimination law. As a result, the rule does not include the ABA’s bans on discrimination on the basis of gender identity or socioeconomic status. That does not reflect an abandonment of those concerns. With regard to gender identity, pending adoption by the Supreme Court of the rule change, the Ethics Committee has adopted a new Ethics Committee Comment 5. With regard to socio-economic status, there were concerns about what that term means in this context. Socio-economic injustice is an important issue for lawyers, but the proposed rule does not address it.
The proposed New Hampshire Rule also deleted the ABA Model Rules’ “free speech” exception for “legitimate advice or advocacy.” In its place is the new Ethics Committee Comment 6.
Proposed Rule Changes in New Hampshire
Current Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) state or imply an ability to influence improperly a government agency or official;
(e) state or imply an ability to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Ethics Committee Comment
Section (d) of the ABA Model Rule is deleted. A lawyer’s individual right of free speech and assembly should not be infringed by the New Hampshire Rules of Professional Conduct when the lawyer is not representing a client. The deletion of section (d) was not intended to permit a lawyer, while representing a client, to disrupt a tribunal or prejudice the administration of justice, no matter how well intentioned nor how noble the purpose may be for the unruly behavior.
Model Rule section (e) is split into New Hampshire sections (d) and (e).
Proposed Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(g) engage in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, or marital status. This paragraph does not limit the ability of the lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.
Ethics Committee Comment
 As used in this Rule, discrimination and harassment based upon “sex” and “sexual orientation” are intended to encompass same-sex discrimination and harassment, as well as discrimination and harassment based upon gender identity.
 This Rule is not intended to infringe on a lawyer’s rights of free speech or a lawyer’s right to advocate for a client in a manner that is otherwise consistent with these Rules.