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June 2018

Sexual harassment behaviors and solutions in the legal profession

The #MeToo movement has resulted in lawsuits and resignations across industries, and the legal profession has not been immune to the upheaval resulting from charges of sexual harassment.

A panel of judges, lawyers, clinicians and nonprofit legal leaders gathered to discuss sexual harassment in legal workplaces in the webinar, “Sexual Harassment: Changing the Conversations,” co-sponsored by the American Bar Association, the Arizona Supreme Court, the Arizona State Bar and InReach, an educational content provider.

Sexual harassment is not usually about sex, but is more closely related to aggression, power, manipulation and control, said Samara Cerven, a clinical psychologist with Childhelp Children’s Center of Arizona. When unreported, sexual harassment can lead to more aggressive behaviors, and women in male-dominated work environments are less likely to speak out for fear of damaging their career, she said. The psychological effects of sexual harassment include post-traumatic stress, anxiety and depression, which can lead to job-performance issues and self-destructive behaviors such as substance abuse.

Moderator Margaret H. Downie, executive director of the Arizona Commission on Judicial Conduct and staff director of the Arizona Judicial Ethics Advisory Committee, introduced several sexual harassment scenarios that explore boundaries and nuances of sexual harassment behaviors, followed by a panel discussion.

Scenario 1: Client misbehavior

A female associate and a male partner take a male client to an evening baseball game. After a few drinks, the client makes several sexual innuendos about a woman sitting nearby. The partner laughs, but the associate is uncomfortable. The next day, the associate mentions to the partner that the innuendo made her uncomfortable. The partner dismisses it, saying the associate is being “dramatic.” When the client returns to town, the associate is not invited to a social/networking occasion with the client,” she said.

Kim Demarchi, a partner at Osborn Maledon in Phoenix, said she would advise the associate to report the encounter to firm leadership, and to practice what to say to avoid letting emotions rule the conversation. First, she should decide who would be the best person to report this to, whether it’s another partner or a human resources representative, and communicate that this is a concern, and how can we help this partner understand why his behavior was wrong? Denise Blommel, an employment and labor lawyer in Scottsdale, Ariz., said context becomes critical when analyzing how to respond – how big is the firm and how important is the client, for example. Demarchi added that a common perception among lawyers is that the only way to keep clients is to say yes to them all the time. “It behooves us as lawyers to confront that in our practices.”

Scenario 2: Misbehavior in court

Manny is a lawyer who has appeared in your courtroom regularly for several years and has a reputation for being snarky with his opponents. On several occasions you have overheard him engaging in banter with other lawyers in the courtroom, although he is careful never to do so on the record. Today, Manny is appearing against Sally, a relatively new lawyer. Following a hearing during which both lawyers have passionately argued their positions, you take the matter under advisement and go off the record. As you are exiting the bench, you overhear Manny say to Sally, “Look, Barbie, you need to get an understanding of the rules of procedure. You can’t expect to win just by showing up in that outfit.”

The Code of Judicial Conduct has several rules that apply in this situation, said B. Don Taylor III, chief presiding judge of the Phoenix Municipal Court. It is the judge’s obligation to be patient, dignified and courteous, and ensure that all others in the courtroom behave the same way. Downie said the ABA Model Code of Judicial Conduct also applies, particularly Rule 2.2c, which addresses lawyer behavior in the courtroom. She said it’s trickier when a judge makes inappropriate comments, because lawyers are loathe to take action against judges. However, telling a judge, “I want you to understand how that comment made me feel,” can initiate a constructive conversation, Taylor said. Cerven said it’s okay if you don’t respond immediately when the comment is made, but take the time to gather your thoughts and form a thoughtful response.

Scenario 3: Harassment between colleagues

Chad is a new public defender in his first job. He is assigned to a trial group, where Frances is the only paralegal and has been with the office for many years. Frances thinks Chad is attractive and after a few weeks, asks Chad to go to dinner. Chad politely refuses. Frances thereafter begins to subtly undermine Chad, criticizing his work or ideas in team meetings, returning projects to him late and complaining about Chad to the supervising attorney of the trial team.

Chad needs time to process what’s happening before acting, Cerven said, adding that she would urge him to address the situation before it escalates. If Chad expresses embarrassment and doesn’t want anyone to know he is being harassed, Blommel said she would explain the obligation to report the behavior.

Scenario 4: Solve the problem by not hiring women?

After a discussion of the #MeToo movement, several male judges have decided that to avoid any potential for allegations of harassment, they will no longer hire female law clerks.

“I would go to the ringleader of the male judges and say, “help me understand what’s going on,” Blommel said. She said you could also point out that by excluding an entire gender, you’re affecting their potential career opportunities, which becomes a liability issue. John F. Phelps, chief executive officer and director of the State Bar of Arizona, added that it might be a more effective if a male colleague talks to the judge, urging him to practice good judgment and behavior, to set an example for the office.

Scenario 5: Colleague crosses the line

A male and a female associate have worked together on various projects for over a year and have a professional, but casual, friendship. One associate says to the other during a work session, “You’ve been looking stressed these days,” and then touches the hand of their colleague and asks if they want to go out for a drink.

Barry Stratford, an associate lawyer at Perkins Coie in Phoenix, said touching a colleague without permission is a bright line that should never be crossed. It’s fine to express concern and suggest talking outside of work, but without any touching. If you’re consoling a coworker, ask if you can give them a hug. Pay attention to body language and wait for signals that a touch on the arm is okay — or just ask, Demarchi said.

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