New Hampshire

ABA Model Rule 8.4(g) Efforts in New Hampshire


Status of Action in New Hampshire

May 2019
Status – The New Hampshire Supreme Court is considering ABA Model Rule 8.4(g).

CLS Files Comment Letter in New Hampshire
On May 29, CLS filed a comment letter with the New Hampshire Supreme Court on its new proposed amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct. The CLS comment letter notes the significant differences between the New Hampshire Supreme Court's May 2019 proposal and ABA Model Rule 8.4(g), as, unlike previous proposals considered by the New Hampshire Supreme Court or the New Hampshire Supreme Court Advisory Committee on Rules, the May 2019 proposal is not a version of ABA Model Rule 8.4(g). The CLS comment letter also notes concerns about the May 2019 proposal and provides suggestions on how the New Hampshire Supreme Court could further improve the proposed Rule 8.4 amendment.

Kim Colby Featured on The Federalist Society Blog
Also on May 29, Center Director Kim Colby published an article on The Federalist Society blog briefly discussing the newest comment period in New Hampshire and why the most recent New Hampshire proposal is not ABA Model Rule 8.4(g).

New Hampshire Rules of Professional Conduct Rule 8.4(g) Comments Due May 31
The New Hampshire Supreme Court issued an Order on May 17, 2017, opening a short public comment period until May 31 on a new proposal to amend New Hampshire Rules of Professional Conduct Rule 8.4. Unlike previous proposals considered by either the New Hampshire Supreme Court or the New Hampshire Supreme Court Advisory Committee on Rules, this newest proposal is not a version of ABA Model Rule 8.4(g). This is welcome news. Comments on the May 2019 proposal should be sent to rulescomment@courts.state.nh.us

April 2019

Public Hearing on Proposed Amendments Scheduled for April 12, 2019.
Comments should be submitted by April 11, 2019.

Comments are due April 12, 2019 (though CLS recommends submitting comments no later than April 11, 2019). Two quick ways to comment are by (1) signing and emailing to rulescomment@courts.state.nh.us the attached NH Bar Comment Letterwhich provides the basic common-sense reasons for opposing the proposed rule change; or (2) sending a short email simply stating that you oppose changing New Hampshire Rule 8.4 for the reasons given by Christian Legal Society in its comment letter. CLS has also prepared a short background document on the proposal, giving reasons why the New Hampshire Supreme Court should not adopt the proposal.

February 2019
On February 11, 2019, the Supreme Court of New Hampshire issued an order regarding the amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct as proposed by the New Hampshire Supreme Court Advisory Committee on Rules ("Committee"). On Friday, April 12, 2019, at 10:00 am, the Supreme Court of New Hampshire will hold a public hearing on the proposed amendment. Individuals wishing to speak about the proposed amendment may address the court, and each individual doing so will be limited to five (5) minutes.

The New Hampshire Supreme Court is also accepting written comments on the proposed amendment. Comments must be submitted before the close of the public hearing on April 12, 2019. Because it is unclear at what point on April 12 the hearing will end, CLS recommends having all comments submitted by April 11, 2019. The court will consider all comments previously submitted to the Committee, so those comments do not need to be resubmitted.

Comments may be submitted by email to rulescomment@courts.state.nh.us. In the alternative, one original and one hard copy of the comments may be mailed or hand delivered to the following address: New Hampshire Supreme Court, One Charles Doe Drive, Concord, NH 03301, Attn: Eileen Fox, Clerk of Court.

On February 8, 2019, the New Hampshire Supreme Court Advisory Committee on Rules ("Committee") sent a report to the New Hampshire Supreme Court. The report contained the final draft of proposed rules and rule amendments the Committee is recommending for adoption. Included in those recommendations is an amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct. The Committee voted to recommend that the New Hampshire Supreme Court consider adding a provision (g) to Rule 8.4, making it professional misconduct for a lawyer to engage in harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status, or gender identity. The Committee also voted to recommend that the New Hampshire Supreme Court hold a public hearing before the full court on the proposed amendment to Rule 8.4.

The New Hampshire Bar Association has a webpage detailing the continuing conversation surrounding ABA Model Rule 8.4(g) in New Hampshire. 

September 2018

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).

May 2018

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 rulescomment@courts.state.nh.us 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. 

September 2017
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.

February/March 2017
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 Hampshire 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(g) Misconduct (May 2019)
It is professional misconduct for a lawyer to: ...

(g) while acting as a lawyer in any context, engage in conduct for which the lawyer’s primary purpose is to embarrass, harass or burden another person, including conduct primarily 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.

Comment

Subsection (g) is intended to govern the conduct of lawyers in any context in which they are acting as lawyers. By requiring that the proscribed action have the primary purpose or primary motive of embarrassing, harassing, or burdening another person, which includes 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, the rule is intended to cover only deliberate conduct that is intended to cause the described result. The rule does not prohibit conduct that lacks such deliberate motivation, even if the conduct incidentally produces, or has the effect or impact of producing, the described result.

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(g) Misconduct (February 2019)
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.[; or

(g) engage in conduct while acting as a lawyer in any context that the lawyer knew or reasonably should have known is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status, or gender identity. Statutory or regulatory exemptions, based upon the number of personnel in a law firm, shall not relieve a lawyer of the requirement to comply with this Rule. This paragraph shall not limit the ability of the lawyer to accept, decline, or withdraw from representation consistent with other Rules, nor does it infringe on any Constitutional right of a lawyer, including advocacy or matters of public policy, the exercise of religion, or a lawyer's right to advocate for a client.]  

Ethics Committee Comment[s]
[(1)] 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.

[(2) ABA] Model Rule section (e) is split into New Hampshire sections (d) and (e).

[(3) As used in this Rule, discrimination and harassment based upon "sex" and "sexual orientation" are intended to encompass same-sex discrimination and harassment.]