January 29, 2020 Featured

Ethics Matters, a Jersey Voice

By Kim Ringler

After decades of law practice, seasoned lawyers look back on change. Attorneys who kicked off careers in the 1970’s or earlier can recall a truly different legal environment: predominantly white, male and buttoned up. Honor, civility and courtesy reigned but sometimes masked deep prejudice and discriminatory norms. 

Law remains an in-demand profession that continues to grow and pay well while making slow, but steady progress when it comes to issues like diversity.

Law remains an in-demand profession that continues to grow and pay well while making slow, but steady progress when it comes to issues like diversity.

Ollyy | Shutterstock

Personal anecdotes of overt bias and subtle prejudice in the workplace, in court, behind closed doors and out in the open are doubtless plentiful. Thankfully, the world has changed and continues to change. Only recently, however, has the attorney disciplinary apparatus faced the need to condemn open bigotry as professional misconduct.  For example, RPC 8.4(g) of the New Jersey Rules of Professional Responsibility grew out of the New Jersey Supreme Court Task Force on Women in the Courts; Canon 3A(4) of the Code of Judicial Conduct; the ABA Standing Committee on Ethics and Professional Responsibility; and pre-adoption case law precedent. 

The New Jersey rule, adopted in 1990, does not mirror the proposed ABA model rule. The rule addressing overt discriminatory conduct, RPC 8.4(g), states that

It is professional misconduct for a lawyer to … engage, in a professional capacity, in conduct involving discrimination (except employment discrimination unless resulting in a final agency or judicial determination) because of race, color, religion, age, sex, sexual orientation, national origin, language, marital status, socioeconomic status, or handicap, where the conduct is intended or likely to cause harm.

The official comment to RPC 8.4(g) clarifies that the Rule is intended to make discriminatory conduct unethical when engaged in by lawyers in their professional capacity. It includes activities in the courthouse such as a lawyer’s treatment of court support staff, as well as conduct more directly related to litigation.  It also covers activities related to practice but outside of the courthouse, whether or not related to litigation. The RPC encompasses treatment of other attorneys and their staff; bar association and similar activities; and conduct in the law office and firm.

Only actions intended to cause harm by inflicting emotional distress or obtaining a tactical advantage, or repetitive behavior, fall under the prohibition.  Exceptions include behavior in purely private life; improperly exercising peremptory jury challenges on the basis of bias; and employment discrimination in hiring, firing, promotion or partnership status, unless predicated on an agency or judicial determination of discrimination.

Sexual harassment by lawyers in connection with their practice of law falls squarely within the conduct deemed unprofessional and actionable under RPC 8.4(g). Many recent headlines confirm that women lawyers experience such conduct frequently. One 2018 study reported that 35% of women lawyers endured sexual harassment at work and 50% experienced ridicule, overbearing supervision or misuse of power targeted at them as women. See, Acritas 2018 study https://www.acritas.com/diversity-insight. Yet despite the quantity of sexual harassment incidents, and various other types of intentional and/or repetitive behavior causing or intended to cause demonstrable harm, authorities sanctioning lawyers on the basis of such unprofessional conduct are scant. 

Pre-adoption precedent in New Jersey consists of IMO Vincente, 114 N.J. 275 (1989) in which the respondent lawyer was suspended from practice for loud racist name-calling. The New Jersey Supreme Court relied on precedents requiring civility and common courtesy. In re McAlevy, 69 N.J. 349 (1976) and In re Mezzacca, 67 N.J. 387, 389-90 (1975). Absent an explicit Rule of Professional Conduct making disrespectful prejudiced behavior related to law practice ethically actionable in the disciplinary setting, other standards of conduct render such acts impermissible. RPC 3.4 Fairness to Opposing Party; RPC 4.4 Respect for Rights of 3rd Persons; and RPC 8.4(c) and (d) Scope of Misconduct encompassing acts involving dishonesty, fraud, deceit or misrepresentation and conduct prejudicial to the administration of justice.

After adoption of RPC 8.4(g), the New Jersey decisions have centered on undeniably extreme and contemptible conduct. IMO Farmer resulted in a public reprimand and sensitivity training after the respondent lawyer accused the adverse party of lying because of his race, national original and cultural background. DRB Decision January 15, 2019, NJ Supreme Court September 6, 2019.  An earlier case resulted in disciplinary action against a lawyer who engaged in ethnic name-calling of a judge. IMO Geller, DRB  May 20, 2003, New Jersey Supreme Court Order, 177 N.J. 505 (2003). Worse yet, an attorney made overt aggressive sexual overtures including unwelcome touching and crude conversation towards his client. IMO Pinto, DRB October 19, 2000, New Jersey Supreme Court decision, 168 N.J. 111 (2001). That lawyer received a public reprimand.

Elsewhere around the country in various jurisdictions bar regulators have tackled discriminatory conduct. Two cases in Indiana disciplined lawyers for behavior deemed impermissibly discriminatory. In re Barker, Indiana 2013, involved vitriol on the part of a lawyer attacking a person’s presumed immigration status and national origin. It resulted in a three-year suspension from practice plus payment of costs. In the other Indiana case, In re Dempsey, Indiana 2013, the respondent lawyer called attorneys antisemitic names and distributed fliers that disparaged attorneys on the basis of religion. He, too, was suspended for three years.   In the Northeast, Vermont disbarred a lawyer after he initiated sex with a divorce client, tossed paperclips at her cleavage, and demanded she sign a contract that the sexual relationship with him, her lawyer, was consensual. In re Robinson, Vermont 2019. Additional instances of attorney discipline for discriminatory conduct in the course of practicing law resulted in sanctions for (a) disparaging an opposing party based upon her national origin in a communication to the judge (In re McGrath, Washington 2012)(18 month suspension); (b) lodging an anti-Semitic slur against opposing counsel (In re Williams, Minnesota 2987)(reprimand, six-month suspension); (c) directing religious slurs at judges and other counsel in filed court documents (In re Isaacson, Wisconsin 2015)(one year suspension); (d) making offensive “racial, ethnic, homophobic, sexist and other derogatory remarks” to attorneys (Matter of Teague, New York 2015)(three month suspension, anger management counseling for one year); and (e) racially motivated haranguing of opposing counsel for pronunciation (Matter of Monaghan, New York 2002)(written apology).

We senior lawyers with longevity in the law have a valuable perspective from our own experiences and observations.  Nostalgia for more “gentlemanly” times may disregard the bigotry it sometimes masked as well as appreciation of increasingly less tolerance for abuses of power and discriminatory behavior. We should applaud and recognize progress.  Through witnessing evolving norms, seasoned attorneys can guide the profession towards embracing fairness and excising abuses. Hand in hand with increased attention to behavioral health including implementation of The Path to Lawyer Well-Being: Practical Recommendations for Positive Change from the National Task Force on Lawyer Well-Being, education to combat implicit bias, mentoring and peer-to-peer programs, lawyers with decades in the trenches are well-positioned to impact standards of professionalism. Senior lawyers should promote a culture of respect in the workplace, in court, and in attorney interactions with clients and others.

Author

Kim Ringler is a past president of the Association of Professional Responsibility Lawyers and has focused her practice on attorney ethics for decades. The Ringler Law Firm also provides advice and representation to other licensed professionals on standards of practice and disciplinary matters. She graduated from Georgetown Law a long time ago.