By Meredith Mandell, Special to Big Law Business
The American Bar Association earlier this week adopted a new rule that holds attorneys accountable for discriminating and harassing their co-workers and clients outside of the four walls of the courtroom. If they do, they could lose their license to practice law.
But what prompted the ABA to adopt this rule to begin with?
In addressing the ABA’s House of Delegates on Monday in support of the rule, Oregon attorney Mark Johnson Roberts spoke about his own experience with workplace discrimination.
“Twenty-eight years ago, when I was a new lawyer, I was passed over by a law firm’s hiring committee,” Roberts said. “They decided that a gay man couldn’t be a litigator. Ten years later, I was their [state] bar president.”
Wendi S. Lazar, a member of the ABA Commission on Women in the Profession, also addressed the delegates. Lazar, a plaintiffs’ side employment lawyer, spoke about female lawyers she has represented in sexual harassment cases.
“I would like to share with you some of their stories, because they are invisible to many of you, and their suffering has for the most part been in silence,” Lazar said.
Lazar said some of her clients were victims of “behaviors that are unspeakable.”
“My clients have had male colleagues expose themselves in conference rooms, grope them in limousines after a hard day in the office, and threaten them that if they would not have sex in the bathroom at a retreat, they would not be promoted to lead counsel in a litigation,” Lazar said.
“These women need protection, and they need a remedy,” Lazar added. “Firms don’t want to punish their partners, and judges often are reluctant to police their own. So in the end there is no justice for victims of discrimination.”
Michele Coleman Mayes, Chair of the ABA’s Commission on Women, who along with Lazar, helped draft the revised rule said the drafters particularly wanted to focus on conduct that occurs outside of official spaces — what she said has long festered “like a little dark secret.”
“My experience is that these events take place off the clock,” said Coleman Mayes in a phone interview on Tuesday. “You are in a limousine going home, or you are going to the bar to have a night cap or you are invited to a hotel room to prepare the witnesses the night before a deposition.”
Mayes described a power imbalance between the harasser and the victim in the law firm setting. If the harasser is a powerful partner in law firm, the victim who may be his subordinate may be scared to come forward for fear of losing her job or at the very least her reputation.
“The women who go to the mat are the exception,” she said. “The stigmatism that attaches to you – even if you are right, that is a pretty high price to pay.”
The rule specifically states that attorneys will be held accountable for harassment and discrimination when engaged in a wide variety of activities, both in the courtroom and outside the courtroom, including, managing a firm, participating in a bar association or any other business or social activities connected to the practice of law. The new rule also adds three additional protected classes — those discriminated on the basis of ethnicity, gender identity and marital status.
The resolution drew criticism from political conservatives and religious groups from the moment it was floated in 2015 until just a few days before its passage. Former U.S. Attorney General Edwin Meese III said in a March 5 letter to the ABA that the proposed rule “borders on fascism” and threatened “freedom, justice and religious liberty.” Other critics charged that the ABA should not define misconduct to include “political correctness.”
Responding to the criticism on Wednesday, former ABA President Paulette Brown, whose one-year term ended with the close of the convention this week, said “I don’t think anybody should be fearful of this new model,” noting that many states had already adopted similar provisions.
“We adopt policy that will be beneficial to all lawyers –we don’t adopt things just to be politically correct,” she said.
Brown, who was the first African-American woman president of the ABA and is a partner at Locke Lorde in Morristown, New Jersey, said that unfortunately discrimination and harassment has been too common, recalling her own experiences.“I’ve had people question my ability because of who I am and suggest that I am not as smart because I am African American,” she said.
While the anti-bias provision has now been officially incorporated into the ABA’s Model Rules of Professional Conduct, individual states bar associations must now decide whether to adopt the provision. Some 24 U.S. jurisdictions have already amended their ethics standards to incorporate some form of an anti-discrimination rule.