Until now, Ethics Corner laser-focused on what the law is. Sometimes, however, emphasis must shift to what ethics law should be.

When ethics rules fall behind civil rights protections, especially ones rooted in the Constitution, our profession must help ensure that violations of civil rights are ethical wrongs.

The Equal Rights Amendment (“ERA”) to the New York Constitution sweepingly bans discrimination on the basis of pregnancy, reproductive healthcare and autonomy, LGBT status, ethnicity, age and disability.¹ Judicial and attorney ethics rules now must catch up.

The Westchester County Bar Association proudly is taking the lead on reform. This column is about those efforts, and what ethics law should be at the intersection of civil rights and the administration of justice in this ERA moment when state and federal jurisprudence diverges.

Whence Ethics Reform?

Of course, ethics rules come from “the Judiciary,” but a more nuanced reality shapes the law and thus our reform efforts. The Chief Administrative Judge enacts the Rules Governing Judicial Conduct with consent of the Court of Appeals,² while Appellate Divisions enact the Rules of Professional Responsibility and Statement of Client Rights.³ Allocation of governance power within component parts of the Judiciary ensures “critical multistage, multiperson review and is therefore an indispensable component of the constitutional scheme” for the Third Branch.⁴

Reflecting this structure, its implied consultation among judicial leaders across the State, and historical Bench-Bar collaboration, often ethics proposals “bubble up” from the Bar and ripen over time. Many ethics proposals originate with the State Bar Committee on Standards for Attorney Conduct (“COSAC”). Other times COSAC takes up a proposal from the Judiciary or a local bar association—as last month’s column described about the Rule 1.8(e)(4) “humanitarian exception” to the ban on lawyers charitably assisting their litigation clients.

While “the Judiciary” regulates judicial and attorney ethics, some reform impulses start in the Legislature. With support of advocacy groups, the Legislature enacted the 2002 Sexual Orientation Non-Discrimination Act (“SONDA”) banning sexual-orientation discrimination,⁵ and the 2019 Gender Expression Non-Discrimination Act (“GENDA”) banning discrimination on the basis of gender identity and expression.⁶ Statutory reform, in turn, inspired rounds of Judiciary rulemaking to similarly ban LGBT discrimination in judicial and attorney conduct.

Like SONDA and GENDA, the ERA began in Albany; uniquely in modern civil rights law, it prevailed at the ballot box. New York’s 1975 referendum on an equal-rights measure failed by 14 points.⁷ Nearly five decades later, history reversed: New York’s 2024 vote ratified the ERA by an equal 14-point WESTCHESTER LAWYER | SEPTEMBER 2025 | 15 margin,  a 2% greater spread than the presidential vote.⁸

Leading up to the 2024 referendum, the WCBA led a three-part CLE series on the proposed ERA through the lenses of disability law, LGBT law, and the law of gender and reproduction. After the ERA became law, the WCBA’s Committee on Ethics and Professionalism empaneled a Task Force on Ethics and the ERA. Please join me in thanking Task Force members Georgia Kramer and Ariel Zitrin for serving with me in this effort.

In spring 2025, the Task Force’s Report, “Equal Rights, Equal Ethics: Ethics Reform for New York’s E.R.A. Era,” proposed that judicial and attorney ethics rules map to the ERA. In early summer 2025, the Committee and the WCBA Board ratified the Report, which we shared with “the Judiciary” and COSAC. Both promptly initiated substantive discussions with us about it. I look forward to sharing updates as our proposal progresses through the policy process.

Closing Gaps: WCBA’s Ethics Proposal and Emerging Federal Law

The WCBA proposes ERA-conforming amendments to Rule 100.3(B) governing judges’ adjudicative duties, Rule 8.4(g) banning discrimination and harassment in the practice of law, and Rule 1210.1 setting forth the Statement of Client Rights’ discrimination ban. While each rule already reflects some of the ERA’s civil rights protections, each of them omits others

manifesting bias in proceedings and obliges judges to so require of attorneys appearing before them, but not as to the ERA’s “ethnicity” or “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.” While some cases read “ethnicity” into Rule 100.3(B) (4) banning direct judicial bias,⁹ no case yet so construes Rule 100.3(B)(5) governing what judges must require of attorneys. Meanwhile, pregnancy status and reproductive healthcare do not yet have a foothold in judicial anti-discrimination rules. Hopefully it is unthinkable that a judge would demonstrate bias based on pregnancy status or reproductive healthcare; it should be equally unthinkable that judicial ethics rules might allow it.

Much the same reasoning extends to attorneys. Rule 8.4(g) bans lawyers and law firms from “engaging in conduct in the practice of law that the lawyer or law firm knows or reasonably should know constitutes (1) unlawful discrimination, or (2) harassment, whether or not unlawful” on the basis of enumerated criteria. While Rule 8.4(g) already bans “ethnicity” discrimination, it must catch up to the ERA’s protections for “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.” Without reform, a lawyer might decline or end a representation on these ERA-prohibited grounds with impunity. The Statement of Client Rights’ assurance that clients “may not be refused representation” on specified grounds similarly needs to catch up.

To be sure, in recent years the U.S. Supreme Court has subserviated anti-discrimination laws to First Amendment speech and religion rights.¹⁰ On the other hand, judicial ethics rules generally survive First Amendment challenge given the public interest in a bias-free bench,¹¹ while parallel recusal mandates protect the public from even the reasonable appearance of bias.¹² Meanwhile, so far First Amendment challenges to attorney ethics rules based on recent federal cases have failed, because attorney speech “is subject to greater regulation than speech by others”¹³ and thus is within “the Judiciary” power to regulate in the public interest.¹⁴

Conclusion

Dr. Martin Luther King famously observed that “[t]he moral arc of the universe is long but it bends toward justice.”¹⁵ It took New York nearly 50 years to constitutionalize the ERA’s civil rights protections. With gratitude to the WCBA, and knowing there is more road ahead, hopefully New York’s judicial and attorney ethics rules soon will follow where the ERA leads.

Endnotes

1 See N.Y. Const., art. I, § 11(a)-(b).

2 See N.Y. Const., art. VI, § 20(b); Judiciary Law § 212(2)(b); 22 N.Y.C.R.R. part 100.

3 See Judiciary Law § 90(2); 22 N.Y.C.R.R. §§ 1200.0 [Rules of Professional Responsibility], 1210.1 [Statement of Client Rights].

4 People v. Correa, 15 N.Y.3d 213, 223 (2010); see Morgenthau v. Cooke, 56 N.Y.2d 24, 32-33 (1982); Corkum v. Bartlett, 46 N.Y.2d 424, 428-29 (1979).

5 See L. 2002, ch. 2, §§ 5-13.

6 See L. 2019, ch. 8.

7 See L. Greenhouse, “Defeat of Equal Rights Bills Traced to Women’s Votes.” N.Y. Times (Nov. 6, 1975), at A1.

8 See N.Y. State Bd. of Elections, “2024 General Election Results.”

9 See Matter of Mulroy, 94 N.Y.2d 652, 656-657 (2000); Matter of Schiff, 83 N.Y.2d 689, 692-693 (1994); see also Thompson v. Office of Court Admin., 78 Misc. 3d 440, 449-450 (N.Y. Sup. Ct. Kings Cty. 2022).

10 See 303 Creative, LLC v. Elenis, 600 U.S. 570 (2023); Masterpiece Cakeshop, Inc. v. Colorado Civ. Rights Comm., 584 U.S. 617, 635-637 (2018).

11 See In re Watson, 100 N.Y.2d 290 (2003) (upholding Rule 100.5 “pledges or promises” ban against First Amendment challenge); but see Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (striking down “pledges and promises” ban as overbroad).

12 See Doyle v. State Commn. on Judicial Conduct, 23 N.Y.3d 656, 660 (2014); U.S. Elecs. v. Sirius Satellite Radio, Inc., 17 N.Y.3d 912, 913-914 (2011), following Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 150 (1968); Matter of Emory CC, 199 A.D.2d 932, 934 (N.Y. App. Div., 3d Dep’t 1993), lv. dismissed 83 N.Y.2d 837 (1994).

13 Matter of Rosenberg, 221 A.D.3d 1131 (N.Y. App. Div., 3d Dep’t 2023), quoting Matter of Giuliani, 197 A.D.3d 1, 7 ( N.Y. App. Div., 1st Dep’t 2021); see Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051 (1991).

14 Id., quoting Matter of Rowe, 80 N.Y.2d 336, 342 (1992).

15 M.L. King, Jr., “Remaining Awake Through a Great Revolution” (Mar. 31, 1968).

David Evan Markus, Esq., chairs the WCBA Committee on Ethics & Professionalism and the WCBA Special Committee on the Future of the Bar and is elected to the New York State Bar Association House of Delegates and WCBA Executive Committee. He serves as Referee in Supreme Court, Ninth Judicial District, and previously served as Statewide Special Counsel for Programs and Policy for Chief Judges Judith Kaye and Jonathan Lippman.