Law Firms and Disciplinary Authorities Look For Ways to Fight Sexual Misconduct
Posted Mar 21, 2006 4:32 AM CDT
By Martha Neil
Once upon a time, there was a general perception that no employee would file a sexual harassment action against a powerful group of attorneys over the kind of “boys will be boys” behavior typical in some workplaces around the country.
But that perception changed dramatically one day in 1994.
A secretary at Baker & McKenzie, one of the country’s biggest and best known law firms, filed an employment discrimination case against the firm and a partner, Martin R. Greenstein, alleging that Greenstein had sexually harassed her and other firm employees in conduct dating back to 1991 and earlier. Among other things, she alleged that he gestured as if he were going to cup her breasts and asked her about the wildest thing she had ever done.
On Sept. 1, 1994, a California Superior Court jury awarded the secretary a total of about $7 million.
The total price tag eventually included $50,000 in compensatory damages against both defendants, $225,000 in punitive damages against Greenstein, and $6.9 million in punitive damages against the firm (reduced by the trial court to $3.5 million). The damages were affirmed in Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128 (1998). Evidence in the case revealed that numerous female employees had complained to the firm about his suggestive remarks and physical gestures. Some of the women testified that they quit their jobs because they felt so uncomfortable. (Baker & McKenzie and Greenstein, who no longer works at the firm, both declined to discuss the case for this article.)
The California verdict against Baker & McKenzie sent shock waves through the legal community, says Patricia K. Gillette, a San Francisco attorney who co-chairs her 700-lawyer firm’s labor and employment practice group. “It was like, ‘Oh my God, this actually can happen! He got hit personally--out of his own pocket.’ ”
Michael J. Leech, a partner at a midsize Chicago-based firm known for its professional liability work, describes the Baker & McKenzie case as a turning point for recognition that sexual harassment is an issue in the legal workplace. The case sent the message that “juries take these things seriously, and we have to as well,” he says.
But it is unclear just how much the legal profession did wake up to the problem of sexual harassment after the outcome of Weeks v. Baker & McKenzie and other cases alleging sexual harassment by lawyers.
“I think there is much more awareness than there ever was before, and I think there’s more concern that this could be a liability,” Gillette says. “I don’t know that this translates to a change in behavior.”
All signs indicate that sexual harassment of both lawyers and support staff continues to occur even though many law firms and other legal employers have implemented awareness and prevention programs.
But the evidence about how often sexual harassment occurs at law firms, how many of those incidents are reported and how firms try to deal with them internally is largely anecdotal.
“There’s no official reporting agency, entity or government regulatory body that collects and evaluates the information on an ongoing basis,” says Diane C. Yu, the immediate past chair of the ABA Commission on Women in the Profession, who is chief of staff and deputy to the president at New York University. “So we’re usually relying on researchers or surveys or the media and individual testimony for updated information.”
The women’s commission provides some overview on the issue in a handbook published in 2002, titled “Sex Based Harassment: Workplace Policies for the Legal Profession.”
“Despite the widespread publicity that verdicts like the Baker & McKenzie case attract, not all legal employers have heard the message,” the handbook states. The book cites a 2000 case in which a New York law firm without a sexual harassment policy that had ignored an associate’s complaints was hit with a $300,000 jury verdict for emotional distress and punitive damages.
Even though most legal employers now have antiharassment policies, states the handbook, “almost three quarters of women lawyers believe that harassment is a problem in their workplaces.” Meanwhile, “Most recent surveys have found that between about two-fifths to two-thirds of female lawyers, and a quarter to a half of female court personnel, report experiencing or observing sexual harassment.”
More recently, the women’s commission has held a series of public hearings at which women lawyers continue to report that sexual harassment and sex discrimination are ongoing issues, says chair Pamela J. Roberts of Columbia, S.C. “Unfortunately, you still hear the reports, from suggestive language to touchings, and, regrettably, in all settings in the legal profession--from private practice to in the courtroom context to law schools.”
In most cases, women are harassed by men, say Gillette and Leech, but women sometimes commit harassment against men, and same sex harassment also occurs. S
ome experts wonder whether there is something about the law firm environment that encourages harassment, although attorneys--even those only generally familiar with workplace discrimination law--might be expected to appreciate the potential consequences better than most people.
“Law firms are really a breeding ground for these kinds of claims because of the number of hours that are spent, and required,” at the office, Gillette says. “So often you have young associates working with older partners late into the evening, week after week, month after month, often not seeing their families. It’s easy to fall in love or fall in lust--just because that’s the person you’re spending your time with.”
Lawyer attitudes toward sexual harassment also may arise from a measure of professional hubris, according to Wilhelmina Tribble, an Orlando, Fla.-based consultant who regularly conducts harassment awareness training at law firms. “Attorneys--how do I say this nicely?--kind of think the world revolves around them, in a way, and they can do anything they want,” Tribble says. “But they can’t do anything they want.” Avoiding litigation that can lead to crippling damage awards is only one reason for law firms to eliminate sexual harassment. Even if there is no formal complaint, a publicized sexual harassment incident can damage internal morale.
Recent troubles at one well-known firm provide a cautionary tale in this regard.
Holland & Knight, with 1,200 lawyers, is one of Florida’s oldest and most respected law firms. And it has a well-deserved reputation for promoting women both within its own lawyer ranks and within the legal profession. (One of the firm’s partners, Martha W. Barnett, served as the second woman president of the ABA in 2000-2001.)
Last spring, the news broke that a male partner at Holland & Knight’s Tampa office had been given the job of chief operating partner. Several months before, he had been reprimanded after complaints about him by at least half a dozen women at the firm. (The partner is not named because no formal complaint was filed outside the law firm.)
Reports in the St. Petersburg Times indicated that the complaints were first made at a “women’s initiative meeting” at the firm in 2003, when a female partner from Washington, D.C., talked about the excellent opportunities at the firm for women. There reportedly was a long silence, and the partner pressed for an explanation. That is when female associates talked about their concerns.
News accounts indicated the women complained that the partner asked them to feel his muscles and inquired about their sex lives, among other objectionable comments. Before the meeting took place, apparently no one had brought the issue to the attention of the firm’s administrators.
Holland called in an outside firm to investigate, and after its report the partner was reprimanded--but he was later given the new position. Under the heat of adverse publicity in both the local and national news media, he resigned from that position, although he remains a partner in the firm’s Tampa office.
Barnett, in response to a request for comment from Holland, emphasizes that the firm has long had a zero- tolerance policy against sexual harassment, and that it promotes a collegial work environment for all. The firm’s process of enforcing this policy also worked to resolve the situation at issue last year, she says.
“It is enforced diligently and as effectively as we know how to enforce it--and an important part of it is to try to create an environment where people feel comfortable complaining,” Barnett says of Holland’s policy. And it is also important, she notes, that the process be perceived as fair by those complained about.
The Holland partner at issue in the complaints did not respond to messages. But in an interview with the St. Petersburg Times that was reported in the paper’s March 29, 2005, edition, the partner said he did indeed ask male and female colleagues alike to feel his muscles. But, he told the newspaper, “I unequivocally deny that I’ve engaged in sexual harassment with any person here, and I don’t think anyone has suggested I asked for any sexual favors or sexual relations with anyone in the firm. Furthermore, I don’t believe I have engaged in sexual innuendo with subordinates.”
An Ethics Time Bomb
As if concerns about lawsuits, internal morale and public criticism weren’t enough, a developing line of thinking suggests that lawyers who engage in sexual harassment could be subject to professional discipline for violating ethics rules.
“Egregious harassment can ... subject lawyers to disciplinary action,” states the women’s commission in its handbook for lawyers on workplace harassment. “Although few bar ethical codes include specific prohibitions against sexual harassment, such conduct has been held to violate provisions that ban gender bias and conduct reflecting adversely on fitness to practice law.”
In Illinois, Rule 8.4(a)(9) allows a lawyer to be disciplined after the lawyer has been determined in a civil or criminal court proceeding to have violated a law prohibiting discrimination. The rule includes violations for sexual harassment, says James J. Grogan, chief counsel for the Illinois Supreme Court’s Attorney Registration and Disciplinary Commission.
But Grogan says the ARDC can investigate sexual harassment as a violation of general attorney ethics rules, even if there is no court determination that a lawyer violated a discrimination law.
These types of investigations don’t occur very often, says Grogan. “I would guess that you’d see one claim of a violation of 8.4(a)(9) every two years or so,” he says. One ARDC case, brought under a more general provision of Rule 8.4(a), involved a Chicago attorney who allegedly had tied up women with rope in the mid-1990s during the course of law firm job interviews and other practice related activities.
Although two women filed police reports, the lawyer, Scott D. Clark, “was not prosecuted criminally, and law enforcement officials did not think that there was probable cause to believe that a crime had been committed. However, this does not bar disciplinary proceedings based on the same conduct,” a three lawyer disciplinary panel wrote in a July 30, 2001, opinion responding to the disciplined lawyer’s exceptions to prior findings of misconduct, which resulted in his suspension from practice. In re Clark, No. 97 CH 111.
The panel did not expressly describe the attorney’s conduct as sexual harassment. But it reported that his conduct was sexually motivated, that he had abused his position of authority, and that the three women involved (a legal secretary working with the lawyer and two attorneys interviewing for jobs) were embarrassed and frightened to be tied up in isolated areas. In one case, the lawyer videotaped the woman as she struggled to untie herself.
Attorney Jay P. Deratany of Chicago, who represented Clark, says his client was harshly punished for obsessive behavior prompted by a mental illness. Although lawyers are regularly sued in civil actions for sexually harassing women in their law offices, disciplinary authorities in Illinois ordinarily don’t pursue such cases as ethics violations, he says. Yet Clark was unfairly singled out for discipline for comparable conduct, Deratany contends.
“I don’t think the Illinois Supreme Court ultimately gave a fair hearing to this guy, I really don’t,” says Deratany of his losing appeal of Clark’s case. “They just saw ropes and women and they said, ‘That’s it; he’s out of here!’ ” Successfully treated, Clark is now married and works as an insurance adjuster, according to Deratany. A three member panel deciding a recent disciplinary case in Delaware also based its recommendation that a longtime matrimonial lawyer be suspended for three years in part on its conclusion that his actions amounted to the crime of sexual harassment, a misdemeanor in Delaware.
Adopting the panel’s recommendation, the Delaware Supreme Court imposed a three year suspension on Joel D. Tenenbaum of Wilmington, a past chair of the ABA Section of Family Law, on grounds that he sexually harassed both clients and support staff in his law office. In re Tenenbaum, 880 A.2d 1025 (Aug. 5, 2005).
In its report, the disciplinary panel said Tenenbaum’s conduct violated Rule 8.4(b) of the Delaware Lawyers’ Rules of Professional Conduct. Under that provision, it is misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
The Delaware rule takes its language from Rule 8.4(b) (Misconduct) of the ABA Model Rules of Professional Conduct, which serve as the basis for lawyer ethics rules in most states.
“If there was any question in any lawyer’s mind about whether or not such conduct was acceptable, it should be very clear now,” says Andrea L. Rocanelli, chief counsel of the Delaware Office of Disciplinary Counsel, who argued the case against Tenenbaum. “This was unacceptable, and it will not be tolerated. And I hope that will be true elsewhere, not just in Delaware.”
(Tenenbaum has moved from Delaware, according to his counsel, Jeffrey M. Weiner of Wilmington, and could not be reached for comment. Weiner declined to comment on the case.)
Making Harassment Policies Work
Ultimately, there are only good reasons for law firms to take steps to eliminate sexual harassment within their offices. And a growing number of law firms --including Baker & McKenzie--have done just that, experts say, by implementing and fine tuning new broad based anti discrimination programs that include education intended to prevent sexual harassment.
Law firms that haven’t already jumped on this bandwagon should leap aboard now, experts advice.
For one thing, having a good anti discrimination program in place is critical if a firm must defend a sexual harassment claim, says Chicago attorney Leech. Proving a sexual harassment case isn’t a piece of cake, he says. There must have been a significant adverse employment action against the complainant, and the misconduct by the alleged harasser must have been severe or pervasive enough that a court would find that it created a hostile work environment.
“If you have a system in place where someone knows they can explain to someone in a position of authority a complaint or a concern--if that’s there, it should never get to a point where something’s severe or pervasive enough to create a hostile work environment,” Leech says.
Leaving aside the legal complexities, experts say, the key word to an effective policy on sexual harassment is, simply, respect.
“I really do think it just boils down to that one word,” says Leech. “Treating people with respect, fostering an environment where that’s everyone’s expectation.”
Benjamin H. Hill III, who serves as managing partner of his 70 lawyer Tampa firm, agrees with Leech. “If you develop that as a culture of the firm and respect the feelings of people, you don’t end up with sexual harassment or a whole lot of other problems,” he says.
Respect for co workers can be the product of equal parts good manners and good sense, says George B. Collins, a Chicago lawyer whose practice focuses on lawyer disciplinary matters.
“Look them in the eye, don’t look elsewhere, don’t say anything stupid,” Collins advises. “Let the picture on your wall be of a pristine mountain lake, rather than a picture out of Playboy.”
But while the goals of a firm’s policy on sexual harassment are important, it is critical that they are set down as written policy that sets a zero tolerance standard and provides a workable reporting procedure, say practitioners familiar with these procedures.
Then, if complaints are made, a timely and appropriate response must follow in accordance with the written policy. In house personnel generally can investigate complaints if they have been properly trained and advised, unless the complaints involve senior management.
Meanwhile, experts emphasize that an ongoing training program about sexual harassment is crucial.
In 2005, such programs became mandatory for many law firms in California under a new law that requires managers in businesses with 50 or more employees to undergo two hours of training on sexual harassment issues every year. Connecticut and Maine also require mandatory training on sexual harassment.
Both partners and associates may qualify as managers under the new California law, says attorney Gillette of San Francisco, depending on their supervisory responsibilities over support staff and other attorneys.
Gillette and others say the California statute, in particular, could have an important influence on policies toward sexual harassment in other states. Enacted in 2004 as assembly bill 1825, the statute is codified as section 12950.1 in the California Government Code.
“What we look to, across the country, is California,” says Mindy H. Chapman, an attorney who serves as national director of training and development for her 700 lawyer firm based in Chicago. She also is a co author of a book published by the ABA in 2005 about harassment programs for employers, titled Case Dismissed! Taking Your Harassment Prevention Training to Trial.
In some cases, multistate companies have started training all their managers to ensure that they are in compliance with the California statute, Chapman says.
Multinational companies should even consider training their foreign managers in compliance with U.S. laws relating to sexual harassment, says Philippe R. Weiss, a Chicago attorney who conducts training sessions at his own 625 lawyer firm and other law firms.
Even foreign managers who are in contact with American colleagues only by telephone and e-mail should be aware of U.S. sexual harassment laws, Weiss says. Moreover, he says, it’s very difficult for a business to assert a good-faith defense to a lawsuit alleging sexual harassment without a training program to point to.
“Really, everywhere, it’s what we would call virtually a de facto requirement of training,” Weiss says.
From the Top Down
Along with other experts, Weiss emphasizes that a law firm’s training about sexual harassment issues should start with the managing partner and rainmakers. That way, all lawyers in the firm will recognize the importance of participating.
“The culture of a law firm is a very important element of making a sexual harassment or remediation program work, and an awful lot of that comes from what happens at the top, from people in top management being absolutely committed,” Leech says.
Because attorneys will readily understand the statutory basics of sexual harassment law, the primary purpose of training programs should be to persuade them to cooperate with recommended best practices and stop any questionable conduct long before it reaches the level of sexual harassment.
“It’s just simply having the information, and what the consequences are, because they respect the consequences,” says consultant Tribble.
A Fine Line
While certain misbehavior is clearly harassing in nature, the problem is recognizing the vast gray zone of behavior that might be interpreted as harassment and taking steps to avoid it without creating an office environment that makes colleagues fearful of one another.
There are times, for example, when one attorney’s stab at humor can turn into a sexual harassment complaint by a colleague. Gillette recalls one such incident at another law firm that she represented in employment matters. A male partner apparently thought it would be humorous to send a dozen red roses to a female associate with whom he had worked late the previous evening.
Although the previous night’s session had been all business, the male partner had the bouquet delivered to the associate’s office with a note that read “thanks for last night.” The associate was embarrassed, and the incident resulted in a permanent rift in her working relationship with the partner, Gillette recounts. Eventually, the associate left the firm and sued it for sexual harassment, she says. The case settled confidentially.
Whether behavior poses a problem can vary considerably depending on the specific situation, says Carol M. Merchasin, an employment lawyer in Philadelphia and a co-author, along with Chapman and Jeff Polisky, of Case Dismissed.
Take hugging, for instance. Most lawyers probably would be uncomfortable receiving a daily hug from a supervisor, Merchasin says.
“On the other hand, if I come into the office and I have just come back from leave because my mother died, and my manager puts his arm around me and gives me a hug, it could be perfectly appropriate for the circumstances,” she says. “And that is why you cannot develop a list of what you can and cannot do, because it all depends on the circumstances.”
One big benefit of training programs is that they help participants discuss their different perceptions of such scenarios. Even using the word harassment is difficult and could conceivably be taken as an admission of liability in some situations. But, Weiss says, “we’ve got terms and tools which give people a safe and comfortable and effective way to judge conduct and talk about conduct.”
Weiss uses a “traffic light” system of red, yellow and green to characterize conduct. Someone might say, “Hey, buddy, you’re in the red,” when a colleague makes an inappropriate remark, he says.
Experts say one continuing barrier to dealing effectively with sexual harassment issues is that they often are perceived so differently by managers, still predominantly male, and the people who work for them, often female.
For women, the discomfort of dealing with sexual harassment is compounded by concerns about career consequences if they complain.
“Women may feel they would be jeopardizing their present or future careers,” explains Yu. “As much as they may believe they should pursue a complaint, they recognize there are also significant risks.”
Some studies have suggested that as few as 10 percent of women who experience sexual harassment file formal complaints, and even fewer file lawsuits. See Note, “The Quality of Mercy Is Strained,” Chicago-Kent Law Review, Vol. 78, No. 2 (2003), which interprets data gathered for a 2000 study by the ABA Commission on Women in the Profession.
But Tribble sees a growing willingness among women to act in response to sexual harassment. “They’re more conscious of it now than ever before, so the reporting of it happens more often,” she says.
Yet reluctance to complain about sexual harassment can still be high, Tribble says. For instance, she notes, “The support staff, when it happens to them, they’re very reluctant to report it because it’s such a small world--the whole legal area is such a small world. So they just bear it.”
Managers, meanwhile, worry that they could be falsely accused of sexual harassment for even the slightest questionable remark or gesture.
“Protecting men from unwarranted claims is critical to promoting opportunities for women,” states the handbook published by the women’s commission.
At the same time, dealing with a law firm’s management about sexual harassment incidents can be awkward, experts say, because offenders often are in powerful positions. “It’s always difficult when you’re counseling a law firm about how you punish someone who’s a partner in a law firm,” Gillette says. “You can’t do things you would normally do in a corporation, like demote them or fire them or take away supervisory responsibilities. So you’re left with compensation.”
But fining a partner may be problematic, too, especially if the person has political clout in the firm, and because it’s hard to decide how much to fine a highly compensated individual, Gillette says. “So it’s much harder to come up with the right remedy,” she says, “and yet by law you’re obligated to come up with the appropriate remedial action.” These dilemmas help illustrate why avoiding sexual harassment should be the primary goal of law firm policies on the issue, Leech says.
“When you see these situations roll out badly and they find their way ultimately into court, there’s a lot of human wreckage lying around,” Leech says. Sexual harassment “is a horrible thing to be accused of, and it’s a horrible thing to endure. It’s a very painful thing for anybody who’s drawn into it.”
In "Hidden Harassment," page 42, the man identified as Benjamin Hill III in the photo on page 46 is actually George Collins. The Journal regrets the error.
Martha Neil, a lawyer, is a legal affairs writer for the ABA Journal.