To understand why the American Bar Association is starting to take sexual harassment seriously, consider the story told by Mark Johnson Roberts, chair of the ABA's Commission on Sexual Orientation and Gender Identity, at the organization's annual meeting last week.
"To make a long story short, he grabs her butt," Johnson Roberts said at the ABA meeting. "She tells him, 'my husband isn't going to appreciate that, please stop.' Later in the party, he comes up and hugs her and grabs her breast. She bolts away, and he follows her." The man also cornered the woman and made some crude comments, said Johnson Roberts.
The woman didn't want to pursue criminal prosecution. She was worried about retaliation, worried she'd have trouble working again if she pressed charges.
Instead, she went to her state bar association. But, Johnson Roberts said, the woman was told that there wasn't a rule against that kind of conduct.
If the attorney had a criminal conviction, yes, that would be another matter.
So the woman eventually went to police and filed a criminal complaint. Her opposing counsel now has a conviction for groping the woman. He also has a court reprimand, Johnson Roberts said.
But without that conviction, there wasn't much the Oregon State Bar could have done, he said.
The story helps explain why the American Bar Association was discussing its rules of professional conduct and sexual harassment at its annual meeting in San Francisco. "We are not interested in disciplining lawyers," Johnson Roberts said, during a presentation about amending ABA's professional misconduct rules. "We are interested in changing lawyer behavior."
The American Bar Association voted to amend its model rules of professional conduct, changing them to make harassment and discrimination an ethical violation. The change deals with issues attorneys face in a number of settings — both in the courtroom, and at places that are related to the practice of law, like the work function attended by the woman in Oregon.
According to the revised model rule, it is professional misconduct for a lawyer to engage in conduct that the attorney knows, or reasonably should know, is harassment or discrimination on the basis of race, sex, religion, disability, sexual orientation, gender identity, age, socioeconomic status and a few other factors.
"Limits like this have never been placed on lawyer behavior before," Johnson Roberts — who noted that he was speaking for himself, not the ABA or the Oregon bar, where he works — told The Washington Post. "And so we have produced generations of lawyers who thought it was okay to do this stuff. And produced a culture in which most people thought it was okay to do this stuff.
"And that's really what we're trying to do, is change the legal culture. And the reason for doing that is partially for the benefit of lawyers, and frankly partially for the benefit of the public."
A note to clarify: The American Bar Association — which calls itself "one of the world’s largest voluntary professional organizations, with nearly 400,000 members and more than 3,500 entities" — isn't a governing body.
That means model rules for the organization won't necessarily result in action against offenders; instead, they serve as guides, helping state-level officials set policy and determine appropriate professional conduct, as well as consequences for violations of professional conduct.
In other words, the ABA's model rules set the bar for how attorneys should behave and give states a guide to hold people accountable.
Several states, as well as the District of Columbia, have already addressed this kind of behavior in their rules of professional conduct, too.
Res 109 Adopted: Amends Rule 8.4 of Model Rules, adds anti-discrimination, anti-harassment provision. #ABAAnnual
— American Bar Association (@ABAesq) August 8, 2016
"One of the big issues, and certainly for me, is that the rule could not be limited to the workplace," said Wendi Lazar, a partner at a New York firm, who also spoke at the ABA meeting. "Because sexual harassment of young associates, even partners, and discrimination, often doesn't happen in the workplace. It happens after a trial, at a dinner, after working on depositions all night. It happens on the way home from a retreat. It happens at a conference.
"These are all, they're social in one setting, but they're really not — they're really part of the practice and management of law. The things you do because you're a lawyer."
Lazar is an attorney who serves on the ABA's Commission on Women in the Profession. She has also represented attorneys, she said.
"And if there is a harassment issue, you go to the firm. The firm basically has said in the past, there's not a lot we can do," Lazar told The Post. "We can't tell an equity partner, our largest rainmaker, that he has to leave or be suspended for bad behavior. And I think this rule really changes that."
Now, because of this change, the firm can tell an offender that their behavior is in violation of the ethics rules, Lazar said.
"So I think the rule is an enormous achievement for the profession," Lazar said. "This is a self governing profession, and these are our laws, these are our rules."
When asked about what it is like to be a female attorney facing harassment, Lazar can't really get into the specifics of her clients. But, she said, there are lots of cases out there in which women have been harassed.
"They've been sexually harassed by being asked, 'if you don't sleep with me, you're not going to be promoted.' Maybe it's not so blatant, but that's the message," she said. "There's definitely lots of inappropriate behavior. ... There are things that get said in the courtroom, there are things that get said in negotiations that are sexist and just plain discriminatory. There are things that go on that are pretty horrific."
In advance of the vote, the proposed change was not without critics.
The New York Times reported that opponents of the change had argued it would "inhibit lawyers from speaking freely on behalf of their clients and circumscribing the way they run their practice."
"It would change the attorney-client relationship and impair the ability to zealously represent clients," said Kim Colby, director of the Center for Law and Religious Freedom at the Christian Legal Society, which opposes the amendment.Such a change would also have a chilling effect on the ability of lawyers to engage in free speech, religious exercise and other First Amendment rights, Ms. Colby argued.The few times when the amendment punishes misconduct are greatly outweighed by “numerous instances where the rule is wielded as a weapon against lawyers by disgruntled job applicants, rejected clients, opposing parties or opposing counsel,” the society wrote in a 16-page letter to the A.B.A.’s ethics committee.
However, this is what happened when association members voted on the model rule change, according to the American Bar Association Journal:
But at the ABA House of Delegates meeting Monday afternoon, there were no speakers in opposition. And there were so many salmon slips from those wishing to speak in favor — 69 altogether — that Refo said she was struggling for a new description of the volume. On a final voice vote, Resolution 109 was not without opposition, but it passed clearly.
The result: Sixty-nine slips, all from people who wanted to speak in favor! None in opposition.
"So that's pretty good," Lazar said. "Pretty good."
