December 10, 2018
This letter is offered in response to the letter to the editor published on October 17, 2018. That letter, entitled “Sounding the Alarm on a Misguided Conduct Rule” is, according to its author, a “call to arms.” The author has two principal objections to the proposed rule: l) The conduct under the rule is undefined, or if defined, is vague and therefore unconstitutional; and 2) the rule attempts to create a “code of civility” and does not link misconduct to “immorality. “
Our response is: 1) the objections raised in the letter can be addressed; and 2) sounding the alarm about why such a rule is in fact necessary ignores the fact that non-discrimination is not a civility code — it is a moral and legal duty with roots in our state and federal constitution and law.
Harassment and discrimination have no place within our bar association, something which should be quite clear after a year of the #metoo movement and the horrific, long-hidden stories of abuse and harassment which have finally come to light. To be clear, after 30 years of educating the NH Bar through surveys and studies, the most recent results of which Attorney Christina Ferrari, president of the New Hampshire Women’s Bar Association, described in her opinion piece published in the same issue of Bar News, there remains an unrelenting problem of discriminatory conduct among attorneys in our bar association based on gender. Further, the survey did not even touch the issue of an attorney’s discrimination and harassment of office and court staff, clients, or witnesses.
The survey did not undertake to measure other forms of discrimination and harassment including discrimination based on age, race, marital status, physical and mental disability, religion, national origin, sexual orientation and gender identity and expression, which are equal in their place in the protected classes of civil rights under state and federal constitutions and law.
Proposed Rule of Professional Conduct 8.4(g) is a reasonable and appropriate way to address the problem of harassment and discrimination in our profession, a problem which continues to exist despite state and federal anti-discrimination laws which have been on the books in New Hampshire for over 100 years and for 50 years at the federal level.
Does the author of the letter to the editor really mean that lawyers have to break the law to be held accountable? Or should attorneys in this bar set the example for others to follow?
Much can be said in response to the lengthy letter. Focusing on a few select statements will hopefully demonstrate why its author, and not the rule, are misguided.
“And, God forbid that you enjoy after-hours company of your fellow attorneys or other co-workers because conduct which occurs ‘in bar association, business or social activities in connection with the practice of law’ may also give rise to claims under the rule,” the letter said.
Our response: absolutely. Under the proposed rule, if you grope a fellow attorney or engage in unwanted sexual banter at the bar association’s annual meeting, you might very well see a claim under the rule. That is as it should be. No male or female member of the bar, no law firm employee, no member of court staff should be subject to such behavior, and other than for employees of the offending attorney, there are limited available legal remedies. There is little risk that any attorney will “accidentally” grope someone or continue with unwelcomed discriminatory conduct. Attorneys do not bring ethics complaints lightly.
“Even worse, I understand that some advocates of the proposed rule have expressly resisted efforts to define these terms [harassment and discrimination], such as by tethering them to how they are defined in existing federal and state criminal and civil statutes,” the letter said.
Our response: also true. There are instances of behavior which may not meet the legal definition of harassment or discrimination but should still be actionable. Unwelcome sexual advances, requests for sexual favors, and other physical, visual, verbal and nonverbal conduct of a sexual nature constitute unlawful sexual harassment when:
Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
One can imagine many examples of abhorrent behavior which might not fit squarely within this definition. Consider a female witness at a deposition or hearing being cross-examined by a male attorney using graphic sexual terminology which is gratuitous and has nothing to do with the matter being litigated. Such action brings dishonor upon our profession and the legal system and could very well traumatize a witness.
Note the survey results: 49 percent of the respondents reported witnessing or being the subject of sexist jokes by attorneys outside of court (23 percent in court); 17 percent reported verbal advances outside of court (6 percent in court); and 9 percent reported inappropriate touching outside of court (4 percent in court). Yes, these are exactly the types of behaviors by attorneys which need to be addressed, and the professional conduct system is an appropriate, maybe the most appropriate, venue for doing so. Exhibiting professionalism and refraining from harming others is what we should expect from one another, and the professional conduct committee should be trusted to enforce this rule judiciously and appropriately to fit the circumstances of each individual case.
Very truly yours,
Charla Bizios Stevens, Sabrina C. Beavens, Heather M. Bums, Joni N. Esperian, Lauren Simon Irwin, Linda S. Johnson, Katie Kieman Marble, Terri L. Pastori and Connie Rakowsky.