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New Jersey Rules of Professional Conduct (RPC) have several glaring holes in protections from discrimination that require updating, but they have languished for years without action. This is so despite widespread support for specific, needed changes that were identified and presented in 2016 and again in 2017, but have still not been enacted.

Against the backdrop of New Jersey's constitutional, statutory and common law promises of equality, the New Jersey RPCs even lag behind its own Law Against Discrimination, N.J.S.A. 10:5-1 et. seq. (NJLAD), with the specific exclusion of protections in the current New Jersey RPC 8.4 for gender identity and expression. Moreover, New Jersey's RPCs have failed to keep pace with the American Bar Association's (ABA) own recommended Model Rules of Professional Conduct, the national bellwether for professionalism and attorney conduct.

The Development of ABA Model Rule 8.4(g)

In April 2017, as my term as President of the New Jersey State Bar Association (NJSBA) was coming to a close, the NJSBA Board of Trustees overwhelmingly recommended New Jersey's adoption of the ABA's Model Rule of Professional Conduct 8.4(g) which modernizes proscriptions for combatting harassment and discrimination in the legal practice. It was a watershed measure in the Garden State's legal history, built on the groundbreaking work of New Jersey's own Paulette Brown during her tenure as the President of the American Bar Association, the first woman of color to hold that position.

Under ABA President Brown's leadership, which fortuitously overlapped with my term at the head of our State Bar, she created the ABA Diversity & Inclusion (D&I) 360 Commission to "review and analyze the state of diversity and inclusion in the legal profession, the judicial system, and the American Bar Association." She tasked New Jersey ABA Delegate David Wolfe and Chicago civil rights attorney Eileen Letts to lead that ambitious effort, David being the son of former NJSBA President Saul Wolfe (1988-89) who was also a trailblazer in promoting diversity and inclusion in the profession and combatting discrimination.

President Brown's D&I 360 Commission issued a landmark report that included a recommendation for updating Model Rule 8.4(g) consistent with contemporary notions of professionalism and proper conduct. See https://www.americanbar.org/content/dam/aba/administrative/diversity-portal/diversity-inclusion-exec-summ-360-comm.pdf A more extensive analysis of the history of ABA Model Rule 8.4, which has been largely untouched since it was first adopted in 1983, can be found at: https://www.americanbar.org/groups/construction_industry/publications/under_construction/2019/spring/model-rule-8-4/

Over the years, there have been several attempts to persuade the ABA to adopt a black letter anti-bias Model Rule. The proposed amendment was originally drafted in 2014 to specifically address harassment and discrimination, but the conversation surrounding the need for this amendment stretches back to 1994 based on a widespread concern about the effects of bias, discrimination, and harassment in the practice of law and the justice system.

On Aug. 8, 2016, at the ABA Annual Meeting, the ABA House of Delegates, with the unanimous support of New Jersey's delegation, voted overwhelmingly to approve Model Rule 8.4(g). Prior to that, the ABA community carefully analyzed the substance of the proposed Rule and its impact. In the crucible of the ABA's deliberative process, it was thoroughly studied and debated by representatives and academic leaders from around the country to evaluate its effect nationwide, including the impact such a rule would have on the legal practice.

ABA Model Rule 8.4, as adopted, states that it is professional misconduct for a lawyer to:

1. 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;
2. commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
3. engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
4. engage in conduct that is prejudicial to the administration of justice;
5. state or imply an ability to influence improperly a government agency or official; or
6. knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
7. engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Model Rule 8.4(a)-(f) remain intact and unchanged from prior versions. Model Rule 8.4(g) is new and it advances three key changes: First, it adds a knowledge component by prohibiting conduct that a lawyer "knows or reasonably should know" is harassment or discrimination. "Know," "reasonably," and "reasonably should know" are defined in Model Rule 1.0 (f), (h), (j), respectively. Second, it expands the list of protected classes to include marital status, ethnicity, and gender identity (the latter two are lacking in New Jersey's RPCs to this day). Lastly, it applies broadly to lawyers' conduct related to practice of law, rather than the original Rule's focus on conduct related to the "administration of justice."

After that extensive, painstaking consideration, ABA Model Rule 8.4(g) was adopted with overwhelming support from ABA officers, the members of the Board of Governor, the ABA House of Delegates, and hundreds of leaders of state, local, tribal and specialty bars and ABA Divisions, Sections and Committees. It was transmitted to the several states for their consideration and adoption, something the NJSBA seized on, debated and ultimately approved in April 2017.

Paulette Brown Legacy and Leadership

Now, it appears that former ABA President Brown's legacy is being reconsidered right here in New Jersey. The NJSBA Board of Trustees is set to potentially backtrack on its support for ABA Model RPC 8.4(g) from just three years ago. It is a troubling development, not the least of the reasons being that it appears to come in response to a pointed request from the New Jersey Supreme Court Professional Responsibility Rules Committee seeking this reconsideration. After three years sans action, the Committee is asking the state bar if they really meant what they said in 2017 when the NJSBA Board overwhelmingly supported ABA Model Rule 8.4(g).

In my decade and a half in the leadership of the state bar, this is unprecedented. Despite the fact that absolutely nothing has changed in the last three years—except for the #MeToo movement and the advent of national leaders who demonstrate daily by word and deed the need for the revised Rule—the NJSBA Board may ignore stare decisis and reverse course. With the tenures of the first black female and first openly gay presidents of the ABA and NJSBA in the rearview mirror, perhaps some feel we have achieved enough milestones that it is time to revisit this prior overwhelming support for what the ABA has found necessary and appropriate for eradicating what the New Jersey Supreme Court has repeatedly referred to as "the cancer of discrimination."

NJSBA reconsideration of 8.4(g) is being undertaken simultaneously with the NJSBA Board of Trustees' decision to amend the NJSBA By-laws to eliminate the Association's long-standing deliberative body, the General Council. If adopted by NJSBA members, the termination of the General Council will upend that decades-old public forum for the voice of the members past, present and future. Indeed, it should not go without saying that it was the NJSBA General Council that called out the NJSBA Board of Trustees in 2006 for failing to support marriage equality for committed same-sex couples, a repudiation of the organization's mission for advancing equal protection and justice.

The Louisiana and Texas Models In New Jersey

Those seeking rescission of the NJSBA's position on Model Rule 8.4(g) and this about-face from support of President Brown's D&I work have been circulating legal opinions to the greater bar that were written by the Attorneys General of Louisiana and Texas challenging Model Rule 8.4(g) on First Amendment grounds. These two officials, arguably the leading national cheerleaders for LGTBQ discrimination, are known to opine that LGBTQ people can legitimately be fired and even litigate to ensure equal protection does not protect this community. The NJSBA leadership is now considering perspectives that are an anathema to our state's law and public policy, potentially holding them out as the barometer of New Jersey professionalism and attorney conduct. Fortunately, these arguments were already considered and rejected in 2016 when the ABA House of Delegates voted to adopt Model Rule 8.4(g).

The Proposed Amendment of Model Rule 8.4(g) is Needed.

Model Rule 8.4(g) prohibits discriminatory and/or harassing conduct related to the practice of law. It satisfies Constitutional requirements relating to the right to Free Speech. While attorneys are obviously entitled to the full protection of the First Amendment, the State has recognized that "[a]ttorneys occupy a special status and perform an essential function in the administration of justice." In re Hinds, 90 N.J. 604, 614-15 (1982). Attorneys are viewed as "'officers of the court' with a special responsibility to protect the administration of justice …." Id. at 615. The New Jersey Supreme Court "has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses." Id. at 216.

New Jersey has been a leader in legislating against harassment and discrimination and the NJLAD, adopted in 1945, is regarded as model legislation in the advancement of civil rights and equality and has been found to be constitutional. See generally, Levitt  & Sons v. New Jersey Div. Against Discrimination, 31 N.J. 514, 531-34, app. dism'd, 363 U.S. 418 (1960). Indeed, the New Jersey Supreme Court has repeatedly held that "it is the clear public policy of the State of New Jersey to abolish discrimination," and the overarching goal of the Garden State's legislative mandates in this area "is nothing less than the eradication of the cancer of discrimination." Fuchilla v. Layman, 109 N.J. 319, 334 (1988).

New Jersey courts have regularly scrutinized the NJLAD and harassment statutes, with resulting case law making clear that discriminatory and harassing conduct is prohibited, while also recognizing that constitutional requirements protective of speech have been satisfied. While the New Jersey Supreme Court has not made any explicit findings with regard to the scope of New Jersey RPC 8.4.(g), a criminal penalty for harassing conduct has been found to comply with constitutional requirements. Accord, N.G. v. J.P., 426 N.J. Super. 398 (App. Div. 2012) (finding, at 418, that the United States Constitution "permits regulation of conduct, not mere expression[,]"). The speech punished by the harassment statute must be uttered with the intention of harassing the listener. Accordingly, ABA Model Rule 8.4(g) passes scrutiny and satisfies constitutional muster.

Conclusion

The failure of New Jersey decisional authorities to enact ABA Model Rule 8.4(g) must not continue. This proposal has languished for over three years since being presented by the NJSBA Board of Trustees unanimously, and over four years since adoption by the ABA House of Delegates. The passage of time and present-day circumstances only compel its adoption—without delay.

 

Thomas Prol, a Member of Sills Cummis & Gross in Newark, is a past president of the NJ State Bar Association, its first openly gay leader. The opinions herein are his own. He gratefully acknowledges the research of Roger Lai in preparing this article.