BySamson Habte, Bloomberg BNA
A vast majority of the ABA’s policy-making House ofDelegatesvoted in favor of a rule change that will make workplace harassment and discrimination a basis for professional discipline.
The rule change was approved by a voice vote on Aug. 8, the fifth day of the bar group’s six-day annual meeting in San Francisco. Only a handful of “nays” were heard whenABA Resolution 109was presented to the 589delegatesin attendance.
Black-Letter Anti-Bias Rule
The margin of the vote approving Resolution 109 may have been the most surprising development at the Aug. 8 session.
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.
One prominent critic was former U.S. Attorney General Edwin Meese III, who said in a March 5 letter to the ABA that the proposed rule “borders on fascism” and threatened “freedom, justice and religious liberty.”
The resolution was amended several times over the last year, and several speakers said the near-unanimity of the final approval vote was attributable to last-minute changes that assuaged the concerns of constituent groups that had expressed qualms about the proposal in its earlier iterations.
In its final form, the resolution called for the addition of a new provision — Model Rule 8.4(g) —that expands the definition of “professional misconduct” to include:
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.
Twenty-four U.S. jurisdictions have already amended their ethics standards to incorporate some form of an anti-discrimination rule.
Arizona State University law professor Myles V. Lynk, the chair of the ABA’s ethics committee, introduced the resolution by saying that the states “have been laboratories of change” and that “it’s time now for the ABA to catch up.”
Personal Stories of Discrimination
Sixty-nine ABA members signed up to speak in favor of Resolution 109, while none signed up to speak in opposition.
All but a few of the scheduled speakers waived the opportunity to address the delegation.
Oregon attorney Mark Johnson Roberts did take the podium and related an anecdote 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 thedelegates. 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.”