The American Bar Association first admitted women in 1918, then African Americans in 1943. Yet it has taken until 2016 for the legal organization to follow up on such nominal inclusion and take a stand against discriminatory speech and sexual abuse actions between members. In August, the A.B.A. passed a rule stating discrimination against or harassment of opposing counsel, or any member of the court, will be seen as professional misconduct.
This new ethics rule forbids any comments or actions designed to single out a person on basis of sex, race, religion, disability, or other such personal characteristics. Any penalties, ranging from minor fines to potential disbarment, will be determined by state bar associations.
Currently, 23 states and the District of Columbia have defined protections against harassment, discrimination, and verbal sexual abuse by lawyers during the conduct of their professions. So while in half of the United States, such discrimination and harassment has been intense enough to require state bar intervention before the national association’s ‘catching up’ with the times, those in the other half of the country who were subjected to demeaning phrases and dismissals had next to no professional recourse.
In the U.S. legal system, only state bar associations are responsible for sanctioning attorneys for any and all types of professional misconduct. Before this national prohibition on harassment, discrimination, and verbal sexual abuse, such negative conduct that would be a fireable offense in most American offices would have had limited, if any, consequences. Those states previously lacking protections are now charged with creating repercussions against perpetrators.
This new guidance by the A.B.A. details what constitutes sexual, racial, etc. harassment and those settings where it might be applied. This includes both inside the courtroom and professional areas outside of it, such as where there is interaction with witnesses, co-workers, court personnel, lawyers and others. The rule pertains to every attorney, whether they are managing a law practice or law firm, participating in a bar association, business, or social activity organized and associated with in the course of their practice of law.
The rule and its passing had its expected critics, many of whom maintain that it impairs attorneys’ right to free speech during their representation of a client. However, it must be noted that no lawyer signed up to speak against its revision and passing at the August A.B.A. meeting.
Information Source: NY Times, 9 Aug 2016.