Lawyers should not be allowed to use nondisclosure agreements to avoid their obligation to report serious misconduct - such as sexual harassment - by other attorneys, under a proposal recently approved by the New York State Bar Association House of Delegates.
The proposal involves Rule 8.3, which requires that lawyers in certain circumstances report other lawyers' professional misconduct. The amendment was unanimously approved by the delegates at NYSBA's 2020 annual meeting, and now goes to the Appellate Division for final action.
"The Committee on Standards of Attorney Conduct believes you should not be allowed to use a nondisclosure agreement to avoid mandatory reporting to disciplinary authorities," said Roy Simon, co-chair of the bar association's Committee on Standards of Attorney Conduct (COSAC). Simon is a professor emeritus of legal ethics at Hofstra Law School and author of Simon's New York Rules of Professional Conduct Annotated.
In a comment on the proposal, the committee on conduct wrote, "For example, if a lawyer is accused of sexual harassment, and if other lawyers in the firm know that such misconduct occurred and raises a substantial question about the alleged harasser's fitness as a lawyer, the other lawyers in the firm cannot avoid their reporting obligations ….by signing a confidential settlement agreement with the accuser."
The issue came to the committee's attention in March 2018, after legal regulators in the United Kingdom reminded lawyers that nondisclosure agreements don't relieve them of their reporting obligations. The British regulators noted that there were relatively few reports of sexual harassment and raised the possibility that some incidents were papered over as a result of nondisclosure agreements.
Nondisclosure agreements in sexual misconduct cases have come under scrutiny in the United States as well, most notably the case of film producer Harvey Weinstein. He was accused of sexually assaulting a number of women over decades, but allegedly reached financial settlements with many of them, in return for insisting on nondisclosures. As a result, his actions were kept largely hidden.
In another proposed change to the standards of conduct, the House of Delegates voted to allow certain attorneys to give financial assistance to indigent clients for urgent needs like food, rent and medicine. The aid can only come from not-for-profit legal services or public interest organizations, law school clinical or pro bono programs, or a lawyer who is providing legal services without a fee.
The lawyer or organization can't advertise or promise in advance that such help might be available. Similar humanitarian provisions have been adopted by 10 other states and the District of Columbia, according to COSAC.
This proposal was developed by the New York City Bar Association, which produced an extensive report on the issue.
"COSAC believes that payments of such expenses may sometimes be necessary to enable potentially meritorious litigation to proceed," the committee wrote in a report. COSAC also encouraged lawyers to educate themselves and their clients on other charitable resources that could help the clients.
The House of Delegates also approved a proposed amendment that would prohibit a lawyer from asking any person, except a client, not to speak with or provide information to another party, unless the person is the client's relative, employee or other agent and the advice would not harm the person's interest. However, under the amendment, a lawyer could inform any person they have the right not to talk to another party.
Also approved was a comment making clear that a lawyer's conversion or theft of a client's or third party's funds presumptively raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer.
The delegates also approved language stating that policies supporting discipline for false statements in bar admission applications also apply to applications for reinstatement. Also approved was a proposal saying that the rules do not require the disclosure of information about lawyers that is gained through a bona fide lawyer assistance program.
All the proposals will be sent to the Appellate Division, which, under New York law, has the authority to adopt rules governing lawyer conduct. Once the court considers them, it will decide whether the proposals should be adopted as rules of the court. Until that happens, the proposals are simply the bar association's recommendations to the court and are not binding on attorneys, noted NYSBA General Counsel Kathleen R. Mulligan Baxter.