ABA Annual Meeting

Discrimination and harassment will be legal ethics violations under ABA model rule

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Mark Johnson Roberts

Mark Johnson Roberts, chair of the of the ABA Commission on Sexual Orientation and Gender Identity. Photo by Tony Avelar.

The ABA’s Resolution 109 has attracted a lot of controversy outside the organization. The measure makes it a violation of professional responsibility to discriminate or harass in conduct related to the practice of law. It attracted coverage from the New York Times DealBook blog and condemnation from politically conservative attorneys, some of whom sent a letter to ABA House of Delegates Chair Patricia Lee Refo, arguing that the rule harms free speech and religious freedom, and wrote an op-ed in the National Law Journal (sub. req.) insisting that the resolution was driven by “PC politics” rather than professional ability.

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 resolution was sponsored by the ABA’s Standing Committee on Ethics and Professional Responsibility, the Section of Civil Rights and Social Justice, the Commission on Disability Rights, the Diversity & Inclusion 360 Commission, the Commission on Racial and Ethnic Diversity in the Profession, the Commission on Sexual Orientation and Gender Identity, and the Commission on Women in the Profession.

The discussion focused mainly on harassment and discrimination of women, though the amended Model Rule 8.4 will prohibit behaving in ways the attorney knows or should reasonably 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 first speaker in favor, Chair Mark Johnson Roberts of the ABA Commission on Sexual Orientation and Gender Identity, mentioned that he was passed over by a law firm hiring committee as a new lawyer 28 years ago because he is gay. He focused his remarks, however, on a story about a young, female colleague who was groped by an older male opposing counsel at a holiday party. After she fled the scene, the man followed her and asked “in the crudest possible terms” about what sexual activity she might be planning with her husband that night.

The woman went to her bar association to file a complaint, only to discover that the man’s behavior violated no ethics rule—unless he had been convicted of a crime. Despite concerns that she’d never work in her field again if she prosecuted, Roberts said, she filed a police report.

“Now the opposing counsel has a criminal conviction,” said Roberts. “So be careful what you wish for when you say [victims] should pursue criminal remedies first.”

Don Bivens, the ABA Section of Litigation’s member of the House of Delegates. Photo by Tony Avelar.

Two delegates from ABA sections formerly opposed to Resolution 109 spoke about the reasons their sections had changed their minds. Don Bivens, a partner at Snell & Wilmer in Arizona, spoke on behalf of the Section of Litigation, and said that the section had a detailed discussion with the Standing Committee on Ethics and Professional Responsibility about its concerns, which centered on potential penalties for vigorous representation of clients. In response, he said, the committee added provisions saying the conduct is prohibited only if the lawyer knows or reasonably should know it constitutes harassment or discrimination, and explicitly does not preclude legal advice, particularly in regard to otherwise legal behavior in jury selection.

Don Slesnick, a delegate from the Section of Labor and Employment Law, observed that his section rarely speaks on the House floor because it requires unanimity, a difficult task for a section that includes employer-side and employee-side labor lawyers. Resolution 109 created an unusual unanimity twice, he said: At first, because the section was wholly opposed. But the Standing Committee was so responsive to their concerns, he said, that the section managed to reach unanimity a second time—in favor.

“We hereby express that support with all our heart and soul,” said Slesnick, also a former mayor of Coral Gables, Florida, and former chair of the Fellows of the American Bar Foundation.

A related resolution concerning diversity in the legal profession had an easier time Monday. Resolution 102, sponsored by the National Conference of Federal Trial Judges, Judicial Division, called for more diversity on every part of the federal bench, including magistrate and bankruptcy judges.

Nannette Baker of Missouri, chair of the National Conference of Federal Trial Judges and chief magistrate judge of the U.S. District Court for the Eastern District of Missouri, specially emphasized the importance of diversity among federal magistrates and bankruptcy judges, who are often the first or only jurists seen by many Americans.The measure passed with no opposition.

Follow along with our full coverage of the 2016 ABA Annual Meeting.

Updated Aug. 12 to note the ABA entities that sponsored the resolution.

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