Can a Model Rule Stop Sexual Harassment? — President’s Blog

You Don’t Need a Weatherman to See Which Way the Wind Blows

…And you don’t need to be an attorney to grasp the significance of the upswelling of sexual harassment and assault incidents being brought to light this year. The #MeToo hashtag flooded Twitter and Facebook. Rep. Jackie Spier testified about harassment in the House of Representatives, and has introduced H.Res. 604, the Congressional Education About Sexual harassment Eradication Resolution. The California Senate is hiring outside counsel to investigate allegations of harassment. Hollywood bigwigs and Silicon Valley executives are being ousted and retiring to “spend time with family” at an unprecedented rate. And Senate candidate Roy Moore is under pressure from the RNC to withdraw from the campaign after being accused of sexual contact with teenagers.

This feels like an excellent time to talk about ABA Model Rule 8.4(g). This section prohibits attorneys from “engag[ing] in 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.” The comment to the rule notes that conduct “related to the practice of law” has a broad scope and includes not only representing clients and interacting with court and other legal personnel, but also in “operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”

The section is under scrutiny by First Amendment counsel, who expressed concerns that the section might be used to chill expression of disfavored viewpoints. On the other side of the equation, Stanford Law professor Deborah Rhode feels that the atmosphere of harassment is pervasive enough in the profession that the amendment makes an important symbolic statement. Other proponents point out that the section is no more stringent than federal employment laws (although employment law may not cover the “conduct relating to the practice of law” that the Model Rule includes).

California is considering a version of Model Rule 8.4(g). See Proposed Rule 8.4.1, “Prohibited Discrimination, Harassment, and Retaliation.”

So what is a respectful, respectable PAABA member to do with all this? Well, it might be a good time to update your firm’s sexual harassment policy. (PAABA has a number of excellent employment attorneys who can help make sure you’re in compliance!) and be sure your staff knows they have a safe and confidential space to report harassment at work. Don’t touch your employees. (Not ever.  Just don’t.  No, not even then.)  If you teach or lecture, consider not using sexually themed hypotheticals. And whatever your personal feelings are about “locker room talk,” don’t allow it in your workplace.

If you feel confused by the “new rules” and are concerned about stepping over a line, there’s always the Rock test: treat your colleagues and staff at all times as if they were Dwayne “The Rock” Johnson.

You read that right! If you’re not sure whether something is appropriate to say or do to a colleague, ask yourself if you’d say or do it to this guy:

He looks like a very effective, no-nonsense employee! I bet he gets things done! He’s at work to do work, it’s clearly not his job to bring you coffee or collect used mugs from your desk, and you’re probably going to think twice about casually hovering behind his chair and putting a hand on his shoulder.

Note that this isn’t a strictly gendered test. The idea is simply to be aware of power dynamics — between you and your staff, you and your clients, your clients and your staff, a new associate and a name partner — and treat someone who has less power than you as if they are someone who has more power than you (also known as “basic respect.”) The Rock’s brawn is just a handy visual example, but feel free to use whatever image helps you stop and consider what you’re about to say or do.

Does that need to be codified into a professional rule of conduct? I don’t know. I don’t want to think so. I love working with all of the male and female attorneys and other professionals I’ve come to know through PAABA, and I can honestly say I’ve never felt unsafe, been harassed, or been inappropriately touched by anyone in our community. On the other hand, I’m a woman and I’ve been practicing law for fifteen years, and I’ve had my share of uncomfortable and harassing situations, as have most of the women attorneys I know. And since I practice employment law, I’m well aware that some of the most notorious sexual harassment cases have come out of law firms.

In the end, I lean toward Professor Rhode’s view: that it’s good for our profession to make a strong statement against engaging in or condoning harassing behavior, so that our workplaces are safe for everyone who works there.

Gretchen Birkheimer

President, Palo Alto Area Bar Association 2017-2018


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