Why America’s Biggest Lawyers Group Finally took a Stand Against Sexual Harassment

Washington Post-Wonkblog Sarah Larimer
August 17, 2016

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.

A few years ago, there was a  female attorney in Oregon.  She  went to an office party at another firm,  a  business. Her  opposing counsel in a case  was there as well. During the party, the woman was sexually harassed.

“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.

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“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.”
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“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.”

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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.”