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McKenna Minutes

“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

ABA Rule 8.4 Makes Discriminatory and Harassing Behavior Professional Misconduct

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Almost all women attorneys I know have been mistaken for the court reporter or the client. Once, opposing counsel asked if I was the court reporter, even though I had deposed his client several months earlier. Another time, opposing counsel kept me waiting in the lobby for the deposition of my client and kept walking by, finally telling me we were waiting for my attorney to arrive. We had previously made arrangements to depose my client over the phone. Even worse, when attending a pre-trial conference several years ago, a sitting Judge made a kissy face at me in front of my opposing counsel. When I returned to the courtroom where the other defense counsel, all of whom were male, were waiting, I asked if the Judge had given any of them a kissy face. They laughed. They thought I was joking. When we all returned to the Judge’s chambers and I correctly answered a question the Judge asked, I got the kissy face again. When I returned to my office and told two male partners in my firm what happened, one said I should have walked out, the other thought it was really funny. It wasn’t.

Are these acts of discrimination? Maybe, maybe not. But these are common examples of behaviors that most women attorneys endure that our male counterparts do not. In fact, the Defense Research Institute conducted a survey that found that 70% of women attorneys experienced gender bias in the courtroom. As a result of situations like mine as well as others that are far more egregious, the American Bar Association recently amended the Model Rule of Professional Conduct 8.4 to specifically include discriminatory behavior as misconduct. Specifically, the amendment states it is misconduct for a lawyer to: “engage in conduct that the lawyer knows or reasonably should 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.”

It remains uncertain if the ABA’s amendment will have any effect on how women attorneys are treated by their male counterparts. But, at a minimum, there is now some form of recourse for women attorneys who are harassed or discriminated against based solely on their gender.

For more information about ABA or other Professional Liability Matters, contact Kelly Purkey at McKenna Storer.

 
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