Vol. 43, No. 3

Bar associations, and NABE, address sexual harassment

by Marilyn Cavicchia

Just as in society at large, the #MeToo movement—and its focus on sexual harassment, gender equity, and related issues—is something that bar associations continue to take seriously, even after some of the initial media attention has died down.

In recent months, many bars have addressed these matters in their publications, at events, and in other ways—and some have indicated that their efforts are now gathering steam and will intensify in 2019. Here’s a look at what some bars have done and plan to do, to help keep these concerns at the forefront.

An official board-level position statement

In December 2018, the Board of Governors of the State Bar of Wisconsin adopted a policy regarding sexual harassment; this position statement defines what sexual harassment encompasses and encourages those in the state’s legal community to adopt strong policies against it.

All bar members, the statement says, have legal, moral, and ethical responsibilities to prohibit sexual harassment “and to foster a professional environment and legal system that neither tolerates nor enables harassment.”

The position statement is the product of the bar’s Working Group on Sexual Harassment in the Legal Profession, appointed by President Christopher Rogers. The working group’s final report, with recommendations for how to address sexual harassment in the legal profession and the legal system, was unanimously adopted as an official board report.

Upcoming events spotlight harassment, gender equity

Sexual harassment, gender equity, and related issues will be a major focus at the 2019 Annual Meeting of the New York State Bar Association (January 14-18)—which will also mark the first Annual Meeting for the bar’s new Women in Law Section.

In his president’s message in the upcoming January-February 2019 issue of the bar journal, NYSBA President Michael Miller notes that the Women in Law Section is one of the fastest growing sections in the bar’s history and a sign of both great progress and of hard work that lies ahead.

“Through the efforts of our Women in Law Section,” he writes, “we will continue to advocate forcefully for gender equality in law firms, in courtrooms and in all other settings.”

On January 15, the section will offer a full-day CLE program called “Secure Your Seat at the Table: Becoming a Leader and an Indispensable Lawyer Who Champions Women.” The program will be recorded and available for streaming online. Presenters will include: New York State Supreme Court Justice Lucy Billings; New York Corporation Counsel Zachary Carter; Mylan Denerstein, former general counsel to New York Governor Andrew Cuomo and currently partner at Gibson Dunn & Crutcher LLP; Lisa Friel, former chief of the Manhattan District Attorney’s Sex Crimes Unit and currently special counsel for investigations with the National Football League; and Carol Robles-Román, an activist and co-president of the ERA Coalition.

On January 16, the Annual Meeting Presidential Summit will include a panel called “Listening to #MeToo—Why Laws to Prevent Sexual Harassment Have Been Ineffective, and What Attorneys Can Do About It,” to address laws regarding sexual harassment and how lawyers can help prevent it, and ways lawyers can support gender equity in the legal profession and in society. The chair of the new Women in Law Section, Susan Harper, will be on the panel, which will be moderated by Colleen McMahon, chief judge for the U.S. District Court for the Southern District of New York.

Shortly thereafter—on January 22—the National Association of Bar Executives Administration and Finance Section will hold a program at its biennial workshop called “Professionalism & Conduct in Bar Associations.” In December 2018, Angela Weston, executive director of the Maine State Bar Association, sent a survey to all NABE members asking about their own experiences of sexual harassment and discrimination. At press time, Weston said there were more than 60 responses, some indicating direct experiences with harassment and discrimination—and that in most of these cases, the misconduct was not reported. At the program, Weston and MSBA Deputy Executive Director Heather Seavey will share results from the survey and encourage attendees to discuss ways to manage these matters within their own associations.

Surveys seek experiences of members and staff

Weston notes that the idea for the program at the NABE Administration and Finance workshop arose after the MSBA conducted a similar evaluation for its own members in 2018, and that she and President Susan B. Driscoll have been presenting the results at various locations around the state. In other news from Maine, effective January 1, 2019, all lawyers are required to obtain one additional live CLE credit, specifically related to harassment and discrimination; this is in addition to the requirement of one live CLE credit in ethics and professional responsibility, Weston says.

The NABE-wide survey asks for bar staff members’ experiences, but Weston hopes attendees will make broader use of the information once they get home. “It would be my hope that attendees take this information and types of survey questions and apply them to their associations, but also to their members,” she says, adding she has also offered to share the survey results with the NABE Professional Development Committee and to present this program at an upcoming meeting for the association as a whole.

The Vermont Bar Association Women’s Division plans to release a survey to the general membership of the bar soon, according to Jennifer Emens-Butler, the bar’s director of education and communication. Meanwhile, on December 12, the Women’s Division held a panel discussion during which the following judges shared their gender-related experiences from their time on the bench and earlier in their careers:  Associate Vermont Supreme Court Justices Marilyn Skoglund and Beth Robinson, U.S. District Court of Vermont Judge Christina Reiss, and Vermont Superior Court Judge Helen Toor. The discussion was attended by about 100 people and garnered advance coverage by Vermont alternative weekly newspaper Seven Days. (This was followed by additional coverage on the bar's VBA Blawg.) The March issue of the bar’s journal will feature a #MeToo article, Emens-Butler adds.

Results of another recent survey—by the State Bar of Arizona—echo what Weston said about incidents going unreported. According to an article in the October 2018 issue of Arizona Attorney, just 16 percent of respondents who witnessed or experienced sexual harassment said they reported it to a supervisor or superior—and 40 percent said they did nothing at all. Among those who did report an incident to a supervisor or superior, 34 percent said, “Nothing was done that I know of”—an answer that received the highest percentage of responses. While 15 percent said that the other person was reprimanded, 20 percent said that they themselves were.

Bar publications maintain focus

In addition to the articles mentioned above, here are a few ways that bar publications have highlighted sexual harassment, gender equity, and related issues:

  • In the same message where NYSBA President Michael Miller writes about the bar’s new and growing Women in Law Section, he also notes progress made following the publication of a 2017 report by the NYSBA Commercial & Federal Litigation Section that encouraged law firms, members of the judiciary, corporate clients and alternative dispute resolution providers “to provide women lawyers with opportunities to gain trial experience, participate in the courtroom and all aspects of litigation and be selected as neutrals in ADR.” The report inspired “groundbreaking rules changes” by Senior District Judge Jack B. Weinstein of the Eastern District of New York to encourage more courtroom opportunities for women, Miller notes, adding that other judges are now adopting those rules.
  • In November 2018, the Colorado Bar Association’s Colorado Lawyer magazine addressed the issue of gender pay equity, including in the legal profession, from the standpoint of recent changes in labor and employment law.
  • The December 2018 issue of Texas Bar Journal (State Bar of Texas) has as its main focus equality in the workplace. One article is on implicit bias and how each individual can challenge it, another is about how an evolving understanding of both sex discrimination and religious discrimination affect labor and employment law, and a third takes a look at the #MeToo movement in terms of lessons employers have learned and further progress yet to come. Among the lessons, according to article author Allison C. Williams: “Be willing to hear the complaints,” “Provide multiple avenues for reporting,” and “Train, train, train.”