March 04, 2019 Issue: Spring 2019

Professional Ethics in the #MeToo Era: A Growing Awareness of Sexual Harassment

By: Aditi Kumar

Judging from the headlines, the entertainment and media industries might seem to have the monopoly when it comes to sexual harassment at work, but there is another industry in which the issue is troublingly pervasive: the legal industry.  Sexual harassment is defined as a form of sex discrimination, which can include, but is not limited to, unwelcomed sexual advances, requests for sexual favors, and hostile verbal or physical conduct that targets an individual based on gender.  One recent study found that 35%—or more than one in three—female lawyers have been sexually harassed at work and 70% of female lawyers reported hearing sexist comments, stories, or jokes at work.  The study also found that 77% of female harassment victims and 88% of male victims never reported the incident.

Sexual harassment creates barriers to career success and satisfaction for women in general, with damaging effects such as decreased job satisfaction, lower organizational commitment, and reduced levels of physical and mental health.  According to statistics published by the American Bar Association (“ABA”) Commission on Women in the Profession, although almost half of all summer associates in private practice are women, women make up only 22.7% of partners and just 19% of equity partners.  The legal profession is suffering a tremendous talent drain: Almost half of law school graduates and associates are women, but most of them do not reach senior levels of the profession. The causes of this talent drain are multifactorial—including, among other things, structural gender bias and the pay gap between men and women—but workplace harassment is an important factor. In order to achieve gender equity in the profession, it is imperative to create more effective measures to end sexual harassment in the workplace.  

The ABA recently took an important step in attempting to explicitly bar attorneys from engaging in conduct that can reasonably be perceived as harassment or misconduct.  In 2016, the ABA House of Delegates unanimously passed Resolution 109, which added a new paragraph (g) to Rule 8.4 of the Model Rules of Professional Conduct (“Model Rules”).  The revised Rule 8.4(g) provides that it is unprofessional 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.

In an accompanying comment to the revised rule, the ABA expanded the breadth of interactions or conduct that could result in a violation, including “interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law” and “participating in bar association, business or social activities in connection with the practice of law.

Prior to the adoption of this rule in 2016, the Model Rules did not contain any express prohibition on lawyers engaging in workplace harassment or discrimination.  The only reference to harassment or discrimination was in a comment to the Model Rules, which read:

A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

Because the state ethical rules, and not the Model Rules, govern lawyer conduct, states must adopt the revised Rule 8.4(g) for significant change to take place.  When the ABA House of Delegates revised Rule 8.4 in 2016, reaction at the ABA’s 2016 Midyear Meeting was immediate and mostly negative.  The language, “conduct related to the practice of law,” sparked strong criticism from some quarters that the rule could infringe on rights of free speech and religious freedom. Other critics voiced concern that lawyers with sincerely held religious beliefs (for example, towards LGBTQ people or same sex relationships) would be discriminated against by the Rule. Since the adoption of the revised Rule 8.4(g), 20 jurisdictions have adopted a rule analogous to the Rule 8.4(g), 6 jurisdictions have declined to adopt Rule 8.4(g), and 19 jurisdictions have no language regarding discrimination. Vermont is the only state that has embraced the recommended language that included “conduct in the practice of law.

Not long after the ABA revised the Model Rule regarding sexual harassment, America began buzzing with the #MeToo movement. In fiscal year 2018, the U.S. Equal Employment Opportunity Commission (“EEOC”) saw a 50% increase in sexual harassment lawsuits over the previous year. The EEOC stated that it filed 66 harassment lawsuits in the fiscal year 2018, of which 41 contained allegations of sexual harassment. Moreover, the agency recovered about $70 million for sexual harassment victims in the fiscal year 2018, compared with approximately $47 million it recovered in fiscal 2017. This trend clearly indicates that there is a need for more effective anti-harassment policies in the workplace by individual agencies and law firms. 

In the midst of the increased national attention to these issues, the ABA’s Commission on Women in the Profession released “Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession,” a manual outlining recommendations for the legal industry in tackling workplace sexual harassment.  The manual contains practical advice for legal employers and employees, including sample policies for prohibiting harassment and for progressive discipline. It is to be hoped that the ABA’s revised Model Rule and “Zero Tolerance” manual can serve as a framework to help the profession move forward in combatting workplace harassment.  Widespread, fundamental change, however, will require serious commitment from legal professionals at all levels, both within our own practices and in the larger policy arena.