ABA Adopts Disputed Antidiscrimination Rule: The Law Finally Catches Up To Businesses It Represents

A new ethics rule by the American Bar Association (A.B.A.) sounds more like a satirical headline than a legitimate news article: “The [A.B.A.] says it is professional misconduct to discriminate against or harass opposing counsel, or anyone else for that matter, in the course of practicing law,” writes The New York Times and not, surprisingly, the Onion.

“It is time for the A.B.A. to catch up,” Myles Lynk, chair of the A.B.A.’s ethics committee, said during debate over the rule Monday (via the WSJ Law Blog).

The “new” ethics rule now prevents comments or actions that single out a person based on race, religion, sex, disability or other factors (duh!). Although almost two dozen U.S. State bars, including the District of Columbia, have already enacted such a rule, there was never a national ban on such behavior.

Without a strict rule prohibiting demeaning and misogynist behavior or parlance, it has been easy for opposing counsel or others in the legal profession to use it as an intimidation tactic with zero to no consequences.

“I got the pat on the head,” Jenny Waters, chief executive of the National Association of Women Lawyers, explained to The New York Times earlier this month, discussing a memorable incident while working in private practice (via the Huffington Post). Other attorneys also spoke of receiving “grating” remarks or being victims of demeaning actions, such as having an arm draped around their shoulders.

Shocking as it may seem, the rule has been controversial, igniting debate in the legal industry for months. Some claim the rule limits a lawyer’s personal freedom to practice law as he sees fit. But, to most, the rule was long overdue—now limiting hackneyed “honeys” and “darlings” to courtroom dramas, rather than courtrooms.

“I think it’s absolutely shameless that as lawyers we’re not the model for how businesses should run,” New York lawyer Wendi Lazar told the Wall Street Journal a few months earlier.

Nevertheless, opponents of the rule were able to dampen the language of the original text; in the end, the rule only applies where “the lawyer knows or reasonably should know [behavior] is harassment or discrimination,” which is a demonstratively weaker version than the original, reports the WSJ Law Blog.

Luckily, the rule still spells out what constitutes sexual harassment and which settings are included in this when it comes to practicing law. For example, settings include the courtroom, as well as “interacting with witnesses, co-workers, court personnel, lawyers and others” and “managing a law practice or law firm” or “participating in bar association, business or social activities in connection with the practice of law.”

On that, there seems to be no debate.

“Half my students are women. A quarter are students of color,” legal ethics expert Stephen Gillers, of New York University School of Law, told the Wall Street Journal (via the Huffington Post).

“The ABA has looked to them like an organization of old white guys. This vote will help.”

Let’s hope so. It’s about time.

-WB

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