December 11, 2017

Lawyers on Notice: Harassment and Discrimination Can Endanger Your License

By Cynthia L. Cooper

The stories of sexual harassment have a familiar outline, although the details vary. A male lawyer in New York, according to a disciplinary finding, made a habit of approaching female opposing counsel in court, fishing peppermint-ball candies out of his pants pocket, and asking, “Do you want to suck one of my balls?” This same lawyer invited a female adversary to guess the bra size of a 14-year-old client and later was accused of “cupping” the buttocks of a female law guardian.

During the past year, sexual harassment and discrimination swirled into the headlines anew with allegations of wrongdoing against rich and famous men in television news, entertainment, and, yes, politics. Thousands of stories of sexual harassment and discrimination were posted on Twitter under the hashtag #NotOkay.

The tales that emerge in the legal profession appear between bites at lunch with a female colleague and in equal employment opportunity filings, in-house complaints, private arbitration, negotiated firm departures, and lawsuits or in disciplinary actions in states where some aspect of the ABA Model Rules of Professional Conduct apply. Incidents range from groping and sexual come-ons to insulting comments meant to unnerve a courtroom adversary to exclusive firm events (say, at a golf course) that impede opportunities for certain colleagues. When “The Pink Ghetto” column began publishing e-mails from lawyers about sexual harassment, it gathered hundreds of “shares” on the Above the Law website.

“There’s more locker room talk going on than you think,” says Michele Coleman Mayes, vice president, general counsel, and secretary for the New York Public Library and chair of the ABA Commission on Women in the Profession. She was one of the leading forces in the ABA’s adoption of Resolution 109, which amended the Model Rules of Professional Conduct—specifically, Rule 8.4 on misconduct—by adding a new provision that makes harassment or discrimination against people in 11 protected categories a violation of the lawyers’ model code of ethics.

Passed by the ABA House of Delegates at the 2016 ABA Annual Meeting in San Francisco in August, the new paragraph 8.4(g) of the Model Rules was more than two years in the making and not without significant pushback. The new rule states that discrimination or harassment “in conduct related to the practice of law” is a violation of the code of professional conduct when it occurs on the basis of “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.”

Previously, antidiscrimination behavior was described in a Comment added to Rule 8.4 in 1998 and had been unchanged until August 2016. The new provision both rewrites the Comment and adopts it as part of the black-letter language of the Model Rules. According to Myles V. Lynk, an Arizona law professor who as chair of the ABA Standing Committee on Ethics and Professional Responsibility managed the extensive process, 25 jurisdictions have antidiscrimination provisions in the black letter of their disciplinary codes. To be consistent with the Model Rule, some states will need to modify their codes; other jurisdictions without antiharassment or antidiscrimination measures will need to work from the ground up to incorporate the new provision into their disciplinary codes.

“The Model Rule put the stake in the ground that says in unequivocal terms that lawyers, as much as they believe in the law and are guardians of it, are not above the law,” Mayes says. “Behavior that would clearly be unacceptable to any reasonable person continues to go on even when you have very learned people as part of this profession. So it was critical to say that we are not special.”

Mayes and the Commission on Women worked with the three other ABA commissions connected to Goal III on eliminating bias and enhancing diversity—the Commission on Racial and Ethnic Diversity in the Profession, the Commission on Disability Rights, and the Commission on Sexual Orientation and Gender Identity.

Although employment lawyers say harassment complaints often settle before becoming public, examples in those cases that are reported open a window to the types of problems that arise. In what is perhaps the best-known case, Baker & McKenzie was ordered to pay $3.5 million in damages in 1998 to a former legal secretary who had been a victim of sexual harassment by a firm partner with a history of similar problems—he had grabbed her breast while pouring M&Ms down her blouse pocket and later pinned her arms behind her back and asked which breast was larger.

What’s more, in 2002, law firm Sidley & Austin faced an adverse decision in a federal age discrimination case brought by the U.S. Equal Employment Opportunity Commission after the executive committee demoted 32 equity partners in their late 50s and 60s. In 2008, a New York personal injury lawyer pled guilty to disorderly conduct for inserting his hand beneath a client’s clothing in a “re-enactment” of an accident, touching her breast and “moving her hand over his groin area in a sexual manner,” according to the case finding. And in 2015, lawyer Alexandra Marchuk won a verdict of $140,000 against her former firm because of its failure to protect her from improper sexual advances by a partner.

Long Time Coming

Guided by Lynk, the ABA sponsors crafted, refined, and built support for Resolution 109. But this was not the first attempt to pass a provision challenging harassment or discrimination by lawyers.

“The rule was a long time coming, and I’m glad it has come,” says Anita Hill, a professor of social policy, law, and gender studies at Brandeis University in Waltham, Massachusetts. Hill was part of a failed effort within the ABA to address sexual harassment and discrimination in the legal system 25 years ago. That was shortly after she stepped forward to provide testimony to the U.S. Senate about sexual harassment she had experienced when working with Clarence Thomas, whose nomination to the U.S. Supreme Court was then under consideration.

Hill says that her own circumstances were unique because she felt that she had information relevant to the character and fitness of a Supreme Court nominee and an obligation to share it. “It was the response of so many people afterward that was a change point,” Hill explains. “It opened the door for people who came forward.”

But the ABA effort was scuttled. “What has changed, I think, is recognition that discrimination—and harassment—is seen as a widespread problem and one that not only exists in the typical workplace, but it exists in legal spaces as well,” Hill adds. “I hope that the [new] rule is itself a change point.”

Preliminary results from the Bias Interrupters Project survey, undertaken in spring 2016 by the Commission on Women, give a statistical picture about the extent of the problem in some legal arenas. The survey, a joint project of the Commission on Women in the Profession, the Minority Corporate Counsel Association, and the Center for WorkLife Law at the University of California at Hastings, included four questions on sexual harassment.

Responses were collected from 2,827 lawyers working in law firms or as in-house counsel. In reply to a question about whether people at their workplaces made sexist comments or told sexual stories or jokes, 82 percent of women and 74 percent of men replied in the affirmative. In addition, 27 percent of women and 8 percent of men said that they were subjected to “unwanted romantic or sexual attention” or “unwanted attempts to touch,” and 13 percent of women and 4 percent of men believed that they had lost career opportunities because they rebuffed sexual advances. Nonwhite and white respondents had similar responses.

Laura Dunn, a lawyer who graduated in 2014 and is the founder and executive director of Washington, D.C.–based nonprofit SurvJustice, which addresses rape on college campuses, says that young women are still encountering sex-based judgments, whether it’s being advised to wear dresses to court because of gender norms or being criticized by their firms for taking pregnancy leave. “I don’t think you could find one female lawyer that hasn’t had something about her sex brought up,” she points out. “It’s ubiquitous.”

Expanding Covered Conduct

After multitudes of drafts and negotiations, the new Model Rule added elements to the canvas of antibias and antidiscrimination coverage and encountered significant objections as well.

“I thought it was a slam-dunk. I was shocked at the amount of opposition,” says Kristen Galles, a Washington, D.C.–area specialist in discrimination law who first revived the idea of a model rule on the subject in 2014. “Doctors have nondiscrimination in their ethics. Dentists do. How could lawyers not?”

One addition in the Model Rule addresses “conduct related to the practice of law” compared to a more limited standard of “in the administration of justice” or the earlier Comment language of “in the course of representing a client.” The new anti-discrimination measure, as described in Comment 4, applies to conduct that occurs in interacting with clients, witnesses, coworkers, court personnel, lawyers, and others. It also extends beyond the day-to-day filing of papers and management of a firm to business and social activities that occur in connection with the practice of law. Mayes says this language is intended to cover social functions such as a firm’s holiday party that lawyers are reasonably expected to attend or a shared ride home with a colleague in a limousine following a late night at work.

A key element of the new rule is in the “scienter,” which, in the end, was written to say that the lawyer “knows or reasonably should know” that the behavior in question is discrimination or harassment. A more restrictive standard that the behavior “knowingly” reflects bias or prejudice was contested by several speakers at a hearing on the rule in San Diego, California, in February 2016. Paulette Brown, then-president of the ABA, said she was troubled by a “knowing” standard. “An ethical rule that includes a standard of proof that is so high that it will never be enforced and so high that it will not change behavior fails to address or appreciate the severity of the problem,” Brown said.

Some asked that the word “knowingly” be removed; the word does not appear in the final version, which instead includes the words “or reasonably should know.”

While sexual harassment and sexual discrimination form a central focus of the new provision, and they are specifically defined in a new Comment 3 to the rule (see below), 10 other protected categories are covered. Three protected categories that were not addressed in the Comment to the old Model Rule were added: ethnicity, marital status, and gender identity.

Other categories spurred renewed attention as well. Disability is one. The ABA Commission on Disability Rights sought to incorporate an additional explanation about the interplay of discrimination and the laws on disabilities, says Deborah Perluss, a lawyer with the Northwest Justice Project in Seattle, Washington, and a member of the Disability Rights Commission. She gives as an example of problems clients with disabilities or lawyers might encounter situations in which depositions are scheduled at locations that aren’t accessible to wheelchairs. Disability rights differ from rights in other protected categories, she points out, because accommodations are required.

“Specifically for disability rights, the failure to accommodate the disability is, by definition, discrimination,” Perluss says. “We were trying to get in guidance that would tell lawyers that the failure to accommodate can be interpreted as discrimination.”

The language was not added to the final provision. “Lawyers are left to guess what it might mean,” she adds.

As a lawyer in a legal services program, Perluss also advocated for keeping “socioeconomic status” in the rule. The type of conduct it would affect, she says, is “arguing in court that someone is lying because he or she is poor or making stereotypes based on whether someone is poor or rich.”

In response to objections, Comment 5 to the new rule clarifies that “socioeconomic status” does not prevent lawyers from charging reasonable fees or require them to take clients who can’t pay.

Overcoming Objections

Although the final vote proceeded with few objections, significant pushback emerged during the process.

In 2015, 52 lawyers signed a 29-page paper on why the draft rule at the time should be rejected, including that it would interfere with a lawyer’s autonomy in deciding what cases to take and with lawyers’ free speech rights. The lawyers objected that the resolution added—unacceptably—to the list of protected classes, particularly criticizing “socioeconomic status” as undefined, “sexual orientation” as “not objectively observable,” and “gender identity” as “malleable and subject to change.” There was no evidence that the rule is needed, they said: “It is the equivalent of using a sledgehammer to swat a gnat.” Later, in an opinion piece in the Washington Post, legal commentator and lawyer Eugene Volokh said that the new provision limits “lawyers’ expression of viewpoints.”

What Kristen Galles describes as the “hard road” to passing the anti­harassment and antidiscrimination rule is already resulting in next-stage efforts. For instance, the Kansas Disciplinary Administrator’s Office, which is in charge of enforcing the lawyers’ disciplinary code, recommended that the Kansas Supreme Court adopt Model Rule 8.4(g), says Gaye B. Tibbets, president of the 26-year-old Kansas Women Attorney Association and an employment lawyer. In October 2016, Tibbets sent a letter on behalf of the women’s association to the chief justice, supporting adoption of the antiharassment rule and its comments.

Kansas is one of the states that does not explicitly address discrimination by lawyers in its ethical codes, Tibbets says, and a state version of 8.4(g) would put lawyers on notice in advance. “Even before the complaint, it should give guidance to lawyers that the behavior could have an effect on their license,” she notes. “And it explicitly forbids behavior so that it is of assistance in the disciplinary process as well.”

Tibbets points out that the Kansas proposal has already attracted opponents. “The ABA materials that anticipate the potential pushback against the rule, the fact that the ABA has vetted it through a number of committees—all of those are beneficial to those of us who would like to see a similar rule in Kansas,” she notes.

The further implementation of the antiharassment and antidiscrimination measure in the states will pave a path for future generations, notes Anita Hill. “I don’t know where we will be 25 years from now, but rules like this should get us closer to where we should be,” she says.

ABA Model Rule 8.4(g) (in part):

“It is professional misconduct for a lawyer to . . . 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.”

Comment 3:

“Discrimination and harassment . . . includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).”

Comment 4:

“Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.”

Comment 5:

“A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. . . . A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities.”