When can a disciplinary grievance be filed against a New York lawyer for unlawful discrimination in the practice of law under Rule 8.4(g)?

Plain-English summary

The opinion interprets New York Rule of Professional Conduct 8.4(g), which prohibits a lawyer or law firm from unlawfully discriminating in the practice of law, and addresses the procedural question of when a disciplinary grievance based on such discrimination may be filed. The opinion reads Rule 8.4(g) to tie discipline to conduct that violates a law, regulation, rule, or court order.

The opinion concludes that, where the statute of limitations on the underlying discrimination claim has not run, the claimant must first file a complaint or charge in a tribunal other than an Attorney Grievance Committee. Once that complaint is filed, the claimant may file a grievance without fully exhausting the judicial process, and the Grievance Committee may decide whether to investigate immediately or defer until the other tribunal reaches a final decision.

The opinion concludes that where the time to file in another tribunal has elapsed, so that no other tribunal has jurisdiction, a grievance based on unlawful discrimination may be filed with a Grievance Committee in the first instance. In other words, the lapse of the limitations period for the underlying claim does not bar the discrimination grievance.

In practice

Under this opinion, as the New York rule stood at the time, the route to a Rule 8.4(g) discrimination grievance turned on whether another tribunal could still hear the underlying claim. The opinion holds that a live limitations period channels the claimant to that other tribunal first, after which a grievance may be filed and the Grievance Committee may defer or proceed. A lapsed limitations period opens the grievance route directly.

The opinion is about the procedural gateway to discipline rather than the substantive contours of what counts as unlawful discrimination, which it ties to violations of other law, regulation, rule, or court order.

Common questions

Q: Can I file a disciplinary grievance against a lawyer for discrimination right away?

A: Usually only after filing elsewhere first. The opinion concludes that if the statute of limitations on the underlying claim has not run, the claimant must first file in a tribunal other than a Grievance Committee, then may file the grievance without exhausting that process.

Q: What if the deadline to sue has already passed?

A: Then a grievance may be filed directly. The opinion concludes that where no other tribunal has jurisdiction because the limitations period has run, a discrimination grievance may be filed with a Grievance Committee in the first instance.

Q: Does filing in another tribunal mean I have to wait for a final decision before filing a grievance?

A: No. The opinion concludes a claimant may file the grievance once the other complaint is filed, and the Grievance Committee may either investigate then or defer until the other tribunal issues a final decision.

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 8.4, in particular Rule 8.4(g) (unlawful discrimination in the practice of law) read together with Rule 8.4(b) (criminal acts reflecting on fitness), Rule 8.4(d) (conduct prejudicial to the administration of justice), Rule 8.4(h) (conduct adversely reflecting on fitness), and the definition in Rule 1.0(w). The Model Rules' analogous anti-discrimination provision appears in Model Rule 8.4(g); New York's text and the procedural gateway it imposes are the subject of this opinion.

Citations and references

Rules of Professional Conduct:

• NY RPC 8.4(g) (unlawful discrimination in the practice of law)
• NY RPC 8.4(b), (d), (h) (related misconduct provisions)
• NY RPC 1.0(w) (definitions)
• MR 8.4(g) (Model Rule anti-discrimination analogue)

See also

• NYC Bar Ethics Op. 2016-3: Prosecutors' duty to disclose favorable information
• NYC Bar Ethics Op. 2020-3: A lawyer's obligations when negotiating settlements

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2020-4-unlawful-discrimination-in-the-practice-of-law/