Rules, sanctions, and awareness

Olympia Duhart: I'm Olympia Duhart, and I'm a professor at Nova Southeastern University's Shepard Broad College of Law. This is the last week of LST's mini-series about women in the law. Naturally, we want to discuss some solutions to the problems outlined over the past five weeks. And in this, the last episode, we'll look at an ABA model rule and examine what some law schools are doing to help women lawyers succeed and assume leadership roles.

In August 2016, the American Bar Association House of Delegates approved a new model rule of professional conduct, model rule 8.4(g), that would subject lawyers to professional discipline for engaging in workplace harassment or discrimination.

Here's the text of the new paragraph (g) in Rule 8.4.

Model Rule 8.4: It is professional 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. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Olympia Duhart: We spoke to an attorney who deals with rules of professional conduct for a living. She was also involved in drafting the new model rule.

Amanda Jones: My name is Amanda Jones. I am professional responsibility counsel at DLA Piper in Chicago and I was recently on the American Bar Association standing committee on ethics and professional responsibility.

Olympia Duhart: So what exactly does that rule mean for lawyers at a practical level? Amanda helped us unpack the new rule.

Amanda Jones: The rule prohibits discrimination and harassment and those two terms are both defined in the comment to the rule but also defined by referenced to existing law. So the new rule 8.4 G is broader than the comment 3 that it replaces because that comment required that the conduct be prejudicial to the administration of justice, which in most instances is assumed to mean in relation to a court proceeding. So this is intended to expand that scope to everything that a lawyer does in his or her professional capacity. The new rule also requires that the lawyer know or reasonably should know that what they're doing is harassment or discrimination. We wanted to make sure that there was both a subjective standard and an objective standard, so that we wouldn't have any unreasonable arguments that someone did not know that their conduct was harassment

Olympia Duhart: Amanda says that at its core, this rule is about making the legal profession more welcoming, and she adds that it hurts the profession when we're not.

Amanda Jones: In the employment context you're already prohibited from discriminating against a candidate for employment on the basis age, race, gender, and a variety of other criteria. So this doesn't change that. What this does is to say that if you do that you have an additional layer, which is that your state disciplinary authority would be interested in this issue as well. Another example would be a lawyer who makes disparaging comments and harasses another lawyer in the context of a deposition. So we actually hear about this a shockingly sad number of times, but it does happen. Since that is part of a litigation matter but is not directly in a courtroom setting that might have been viewed as being outside a rule that would require it to be prejudicial to the administration of justice.

Olympia Duhart: Ruth McGregor is a former Chief Justice of the Arizona Supreme Court. She sees real advantages to increasing individual accountability. Attorneys will no doubt think twice if their licenses are at stake.

Ruth McGregor: It makes sure that we get personally to the person who is engaging in this misconduct. You know, civil liability in the end falls on the insurance company for a law firm. But this is personal. It's provisions like this that require individuals to think about how they're acting, and nobody could say that this kind of conduct is appropriate for somebody working as an officer of the court.

Olympia Duhart: Deborah Rhode is a professor and director of the Center on the Legal Profession at Stanford Law School. She says the rule sends an important symbolic message that certain behaviors are unacceptable.

Deborah Rhode: The measure is a step forward, but I think its significance aside from the symbolic value shouldn't be over-stated. You don't have that many smoking-guns now, so I wouldn't expect to see a huge flurry of enforcement activity, which is not to say it isn't worth getting it into the professional code. It belongs there. I think it would be kind of naïve to expect that, that kind of a rule change is going to produce a sea change in behavior.

Olympia Duhart: But even so, Chief Justice McGregor was happy with the addition.

Ruth McGregor: It seems to me sort of a self-evident part of professionalism. People should certainly expect that they wouldn't harass or intimidate or discriminate. That should be just part of our D.N.A. as lawyers. But it's not for everybody. And so I think defining it as being professional misconduct will be helpful here. It's not a panacea. But I think it helps to remind lawyers that this is what we're about and this is the way we should be treating people involved in the justice system. Isn't it amazing that it's 2016 and we need something like this?

Olympia Duhart: So why now? What's the story behind Rule 8.4? Let's start with the committee itself.

Amanda Jones: The ethics committee is a relatively small group but the members come from a variety of backgrounds. The common theme is that they're all practitioners in the ethics field.

Olympia Duhart: The committee is one of several standing committees of the ABA Center for Professional Responsibility. The committee issues ethics opinions, develops the model rules, and provides information to the public about legal and judicial ethics.

Amanda Jones: The ethics committee initially started looking at this issue in May of 2014 when we received a joint letter from the Goal III Commissions. The ABA established these goals several years ago and Goal III has to do with eliminating bias in the profession and increasing diversity. So the commissions are the Commission on Women in the Profession, the Commission on Racial and Ethnic Diversity in the Profession, the Commission on Disability Rights and the Commission on Sexual Orientation and Gender Identity. And those four groups came together and identified this issue to the standing committee on ethics saying, we really think this needs to be looked at and there should be a black letter rule that prohibits discrimination.

Olympia Duhart: And then the vetting process began.

Amanda Jones: We established a working group that consisted of representatives from each of those four commissions, along with representatives from the ethics committee and representatives of the national organisation of bar council and the association of professional responsibility lawyers. And the idea was to make sure that every perspective was represented in this working group so that we weren't missing any key issues. So that working group worked on this issue not only looking at the initial question of is a black letter rule needed, which they concluded that it was, but they also looked at what would should that rule look like as an initial step and they presented substantial findings to the ethics committee that just ran the gamut of every possible word choice and every possible iteration of this rule and explained what their discussions had been on each particular topic in each issue so that we would have not only their proposal but also how they got to that proposal.

Once the working group made its recommendations to the ethics committee then the ethics committee had several meetings that were dedicated just to this issue which is fairly unusual because we have a lot of work that's spans a wide variety of things. So we did devote several meetings to this issue [06:00] where we went through word by word, line by line and we had already at that point received quite a few comments from various ABA entities, individuals, outside organisations who were concerned about particular issues within the rule or the comment itself. So we worked very hard to put all of that together to create a rule that would accommodate concerns that it went too far, concerns about the first amendment, concerns about legitimate advocacy and various other issues like that whilst still having enough teeth to address the discrimination in the legal profession that we were seeking to curb.

Olympia Duhart: Of course, the ABA model rules don't apply to anyone. It's up to the states and jurisdictions to adopt any model rule into their own conduct code.

Before the ABA adopted the model rule, 25 jurisdictions had already adopted similar language. But for the states that haven't yet moved on an anti-discrimination and anti-harassment rule, here's Chief Justice McGregor on what happens next.

Ruth McGregor: Wwhen the A.B.A. adopts some rule, its reception in a state varies a lot. And it's partly because there are different decision-making bodies.

Olympia Duhart: In some states, the Supreme Court adopts the rules of professional conduct. In others, it's the state bar.

Ruth McGregor: Wery often the states eventually come to adopt the suggested changes from the A.B.A., but there's more push back in some states than in others. I would guess on Rule 8.4 there'll be more push back, but it's always a very powerful starting point.

Olympia Duhart: Attorney rules of professional responsibility are not the only means of enforcing behavior. Judges across the country have long had their own framework to do that.

Ruth McGregor: The judicial code of conduct, which is in effect in most states, would call on the judge to reprimand the lawyer for engaging in that kind of behavior.

Olympia Duhart: Forget losing your license, you could end up in jail. More likely?, you'll end up with a fine. Earlier this year, Judge Paul Grewel federal judge in California, took major issue with a male attorney's remarks in his courtroom.

Attorney Lori Rifkin asked opposing counsel Peter Bertling to stop interrupting her. His response?

Peter Bertling Quote: "[D]on't raise your voice at me. It's not becoming of a woman or an attorney who is acting professionally under the rules of professional responsibility."

Olympia Duhart: Judge Grewal called it an "indefensible attack on opposing counsel." He ordered Bertling to donate $250 to the Women Lawyers Association of Los Angeles and to pay attorneys' fees and costs for several depositions.

Olympia Duhart: After the break, we look at how some law schools teach both women and men about demeanor. But first, we here at Law School Transparency want to give a special thank you to Seyfarth Shaw LLP. Seyfarth Shaw hosted a roundtable about bridging the gender gap at its Boston office. You can listen to this discussion, moderated by me and the show's executive producer Kyle McEntee, however you're listening right now. You can also visit LST Radio dot com to read transcripts, guest bios, and get a sneak peek at what's to come.

Seyfarth Shaw: I'm Kristin Glennon McGurn, a partner at Seyfarth Shaw. Diversity and inclusion are not just aspirational words at our law firm. Our efforts are driven through action and continuous improvement. We focus on strengthening the talent pipeline, supporting our attorneys, and building our networks through diversity and inclusion initiatives.

Olympia Duhart: Throughout this mini-series, we heard from women across the profession about how they're penalized for their demeanor. Sometimes it's being told you're too aggressive. Other times it's verbal ticks that women are penalized for more than men. And even in 2016, women are still at times treated like second-class workers.

As legal educators, we have an opportunity to help students develop strong and ethical professional identities. Part of that is understanding legal workplace dynamics. To that end, we'll look at how several law schools currently teach demeanor and help students understand implicit bias.

Katharine Bartlett is a law professor at Duke and one of the preeminent scholars in the United States in the area of gender law.

Katharine Bartlett: I think both about how women act, and how people react to how women act … I think we need to think about those two things separately. We have to figure out what those behaviours are that are so often interpreted or have meanings in society that then work against the woman who ise exhibiting them, so that she is not prejudiced and handicapped and can be evaluated on her merits.

So I would put in that category things like up-talking and ending every sentence with an uncertain question mark, as if you don't know what you are saying but you are seeking affirmation from someone else; not completing your sentences; speaking too timidly or being afraid to speak at all; not making eye contact; not having a good handshake. I's no surprise why they might pick them up, but they need to be trained in law schools or elsewhere to minimise them, to try to eliminate them.

Olympia Duhart: Of course, some men also up-talk, and are reluctant to speak up, avoid make eye contact, and have a weak handshake. But Katharine says women are penalized more for the exact same behaviors, although women and men should both address these shortcomings.

Katharine Bartlett: Everyone loses a little of the force of what they are saying if they up talk or up-talk. That's a kind of verbal tick that is unnecessary and it's not effective. So that's where I would work on how women act and try to get them to act less that way. That's pretty hard to do. It's even harder to train people not to apply their gendered criteria.

Olympia Duhart: Katherine says there is a double standard applied to women's and men's conduct.

Katharine Bartlett: I think that most common one is being too aggressive. Standing up for yourself and being assertive will often times be viewed as a negative—maybe bitchy, just too sure of herself or what have you. For a man it's often interpreted as a sign of competence and confidence, of knowing what you're doing, of being in control, commanding the situation, and so on.

Olympia Duhart: There's even a double standard for how people perceive someone who projects an image of being very busy.

Katharine Bartlett: It might be interpreted for a man that he has a lot of work, he must be very good, he knows how to organize his time, he's in demand. Often it might be viewed for women as not being in control of her work and she's not in control of her schedule, she has trouble meeting deadlines. It's a sign of incompetence rather than competence.

Olympia Duhart: These interpretations are a matter of how we all process visual and verbal cues. And although it's difficult to do, helping everyone account for misplaced judgments is hugely important.

Katharine Bartlett: There has to be some kind of programming which enables people to be more aware of their own processing errors. Now, we're much more motivated to become more effective ourselves. That's what makes the first category, how women act, difficult as it may be, women should be motivated to be more effective. But to be more sensitive to other people so that you are more fair to them? Not so much of an incentive for that. So we need to also build into our evaluations schemes, not only ways to negate bias at work when people are evaluating the same demeanour in different ways depending whether its male or female, but also to evaluate people who are weak in that skill. That ought to be a skill, being able to see through in a non-gendered way, some of these characteristics that are particularly subject to double standards. People ought to be negatively evaluated when they don't do that well.

Olympia Duhart: So what are law schools doing to address this? Let's look at how several professors take steps to reduce specific, disadvantageous demeanors. And also examine how professors can positively affect how people interpret women's demeanors to reduce implicit bias.

Paula Monopoli: My name is Paula Monopoli. I am a professor of law at the University of Maryland, Carey School of Law. I'm the founding director of the Women Leadership and Equality Program at the law school.

Olympia Duhart: The first course is an empirically-based research and writing seminar. The second course is an applied workshop.

Paula Monopoli: One grounds them in the research so that they understand what's happening, and that will hopefully make aware that when they hit those structural barriers, that they're based on their gender and not their competence, so that they'll hang in there long enough to ascend to power and then create change. And then the second course really gives them individual skills to hang in there long enough to get the power to create the change.

Olympia Duhart: For the applied workshop, Paula created a list of skills based on empirical research about the challenges women face in the legal workplace. For example, negotiating salary or requesting specific work assignments.

Paula Monopoli: Let's make them aware. Let's teach them how to negotiate for themselves. But as important as teaching them how to do this, is to teach them that they are going to get negative feedback. People are going to look at you askance because you're violating gender norms. And it's not them, so that they don't internalize the negative push-back. And if you don't get it the first time, go back in 6 months because what we see in the research is, men don't take no as no. They take it as ask me later. And women take it as a final no.

I don't believe that we can make students practice-ready, but we can make them practice-aware. And it's particularly important for women to understand the dynamics that go on when you get into practice or get into any legal workplace.

Olympia Duhart: Paula says the research shows that women are more likely to preface speech with clauses that tend to undercut their message. These verbal ticks include saying "I think" or "In my opinion" or "I'm sorry, but …"

Paula Monopoli: And I believe truly that part of that is because, if you look at the linguistics scholarship, women get more push-back. They are challenged more. Are you sure that's the right answer? Much more than men do, so we hedge our bets.

Olympia Duhart: So what do Paula's students think of her program? We talked to two former students who both work in Washington DC. These two women participated in the program for different reasons. Alexina Jackson participated to develop useful skills. Leah Durant primarily wanted to connect to people in the profession.

Here's Alexina.

Alexina Jackson: One of the greatest things you come out of this course knowing, is knowing yourself. And when you talk about things that increase your awareness, not only of yourself but the environment you're going into, you use it every day because it really is about learning how to think, how to perceive, how to put things into context. It just reinforced that when I saw something that maybe was uncomfortable, that it was okay to actually recognize it and call it out. And say okay it's not just me being paranoid or it's not me reading into situations.

Olympia Duhart: The program also made her a better advocate for others. An attorney friend recently asked for help with approaching her superior because one of her subordinates refused to do timely work. The friend knew the problem needed to be addressed, but was concerned that she would be penalized as aggressive for holding her subordinate accountable.

Alexina did exactly what Paula hoped. She took what she knew about workplace dynamics and applied it. Her friend didn't walk up to her supervisor and say, "I think this is a problem." Instead, she said, "this is a problem; you can help me address it."

Alexina Jackson: It's not just about complaining about something. It's not just about debating intellectual concepts. It's about problem solving.

Olympia Duhart: She's applied this to her own career too. One of her bosses confronted her about being too aggressive in her emails.

Alexina Jackson: You've actually shown me an email where you think I've been assertive and aggressive. Well, I'm learning from you as my boss, and here's the email where you've been assertive and aggressive with me. So now I need your help to understand: can I act like you? Or do I need to act differently from you? And if I need to act differently from you, why and how? And sort of bringing the person in as a co-experiencer of the issue: good management is something that needs to adapt. But making that person a co-problem solver instead of a point of conflict. The best way we change things is by making it personal and important to the people who are in power. So how do you change the structure? You get the structure to change itself.

Paula Monopoli: We are not trying to teach women to be like men. And we are not trying to change them. What we are trying to get them to do is understand that these things are going on around them, and that they've been taught to engage in a particular way, which may be perceived as less credible. And we are teaching them to be lawyers. Lawyers sell authority. They sell credibility and expertise.

Olympia Duhart: Paula is trying to help women realize their priorities and then develop useful strategies for acting on those priorities. Here's Alexina.

Alexina Jackson: The program is for awareness and self-awareness. And that may end up in having some people change their paths or change what they argue for and not argue for. Hopefully, for each person that is the best outcome, because it makes them closer to what they actually want rather than doing or saying what they think they should do or say.

Olympia Duhart: Another one of Paula's former students readily agreed. Leah Durant runs a small practice in Washington, D.C.

Leah Durant: I'm married. I don't have children, but just thinking about how to plan out your life so that you can actually accomplish tasks, get your work done, but actually get home and accomplish your home tasks and also have some sort of balance in that, was critical. And I think, especially for women in the legal profession, these are not things that you are always aware of.

Olympia Duhart: When it comes to changing how men and women interpret women's behavior, Paula can only get so far in a program that's never exceeded 12 students in one year—especially when few men take these courses.

Alexina Jackson: In my class in my year there were no men. I think there were a couple of men who came to hear about the course and, you know, decided not to take it.

Olympia Duhart: But even if more men took these courses, the bigger, related problem is one of scale.

Paula Monopoli: We try not to exceed ten. It's very hard to do individual training with more than that when you bring a consultant in and do one-on-ones with students. And so it's very hard to scale up the program.

Olympia Duhart: Another problem is cost. While some of the training involves alumnus who come in to talk about things like business development, and Paula trains students how to sell their value in the legal workplace, the outside consultants play a critical role. They're equipped to deal with lawyers because they're lawyers themselves or people who work with lawyers. But these consultants are in high demand. They cost money.

Paula Monopoli: They basically charge a non-profit rate to us. They are very invested in what we are doing and are excited about it. But it does cost resources and you really have to raise those, because generally law schools are not used to paying people to come in and teach except adjuncts and lawyers generally.

We run a program essentially on a budget of about $20 000 a year, which is all raised either by revenue that is raised from the endowment that I've raised or in annual giving appeal that we do for the program. So we are completely self-sufficient. We don't take any additional law school dollars, and that's worked very well.

Olympia Duhart: At least the seminar doesn't require additional resources beyond faculty time.

Paula Monopoli: The traditional research seminar simply requires a faculty member who is interested in the topic of gender in the legal profession. What are the challenges and barriers to women ascending to leadership positions in the profession?

And then you have to have a curricular committee that thinks this is worthy of putting in the curriculum and giving traditional course credit to.

I was lucky I had colleagues who believed that this topic was worthy of law school curricular status. It signals. If it's in the curriculum it must be an important topic.

Olympia Duhart: And that's one of the core challenges for other schools that want to emulate the program at the University of Maryland. Paula says that's one of the largest hurdles to overcome.

Paula Monopoli: So we are still the only American Law School that has this kind of program embedded in the curriculum. There are some others that are doing terrific work, and they're beginning to make inroads into the curriculum, but we are the only school which has really got four-credit, graded courses in the issue of gender in the legal profession in the curriculum.

Olympia Duhart: Standalone programs dedicated to these important issues are ideal, but most law schools don't have the luxury of taking such a huge step. With so many demands on thinly-resourced law schools, including the heightened focus on bar passage, the need to expose students to access to justice issues, and increased scrutiny on how tuition dollars are spent, there are many barriers to expanding programs.

But dedicated programs aren't the only way to address these issues. And they may not be the most effective way to reach an expansive base of students, especially men. In my own courses, Constitutional Law and Legal Research & Writing, I have a much broader base to educate students on implicit bias and effective behavior that are gender-sensitive.

Injecting gender modules into bread and butter law school courses would reach more students and help students appreciate how pervasive these gender issues are throughout the legal system.

It turns out that one law professor we met is doing just that. Meet law professor Maritza Reyes.

Maritza Reyes: I am an Associate Professor of Law at the Florida A&M University College of Law in Orlando, Florida.

Olympia Duhart: Her main courses are professional responsibility and evidence. She works gender modules into both courses.

Maritza Reyes: These are courses that everybody has to take. So I get white men, black men, and women of all races. And those are the students that I think we are trying to reach in terms of opening their minds to the gender issues — not only the students who are already very comfortable with a woman who does gender in the classroom. The ones who maybe don't even realize that they have gender biases, and that they will only examine them, if they are presented to them as part of a doctrinal course that's not necessarily gender-oriented.

So when they sign up, for example, for a class like Evidence, I think it would be unfair to make my class a gender class because they did not sign up for that. That said, there are times when issues of gender are important in evidentiary analysis, are important in the court room dynamic. It's important for me to impart that knowledge to students who might otherwise be disadvantaged because they are not aware of these gender biases that could play a role in the development of a theory of a case or in how they present themselves to a judge or a jury. I think it is better received than if I came in there and just independently had a lecture on gender just because I write on gender issues and believe it's important.

I incorporate it when it is relevant or when I can make it so that there is not a push-back because it is so unrelated to what we are doing.

Olympia Duhart: In Evidence, Maritza introduces video clips from actual cases. The primary purpose is for the students to analyze the evidentiary issue, but there's an underlying issue of gender for students to grapple with.

Two cases she uses side-by-side are the Casey Anthony prose dark:prose-invertcution and George Zimmerman prose dark:prose-invertcution. For Casey Anthony, the judge was a man, Judge Belvin Perry. For George Zimmerman, the judge was a woman, Judge Debra Nelson.

Maritza Reyes: The main lawyers in both cases were all men. So when we are looking at the evidentiary issues the students, and it is usually a woman who will notice the different demeanor of the attorneys towards the male judge versus the female judge. If they do not notice it, I will usually at the end of the evidentiary discussion ask, was there a difference in the way that the lawyers conducted themselves in front of Judge Perry versus Judge Nelson? Or, what did you think of the way the lawyers conducted themselves in front of Judge Nelson? And that usually generates a discussion. And it gives some students what I call an "aha" moment. A moment when they realize I would not have noticed that. Or, I noticed it and it is so evident in a real case in a real practice scenario, these things still happen today.

Olympia Duhart: In Professional Responsibility, Maritza's approach is a little different, but the goal of introducing gender to a broad group of students remains.

Maritza Reyes: I require a group assignment, and it is a written word product and it is in the form of a memo. It requires analysis of Professional Responsibility issues.

Olympia Duhart: This year, Maritza is using the new Model Rule 8.4 to teach students about gender issues.

Maritza Reyes: I am asking students to analyze any behaviors that they are observing or experiencing or engaging in in law school, that could be analogous to behaviors that they may engage in or observe when they are in practice or in functions as lawyers that could subject them to misconduct, or other students or other lawyers to misconduct.

So when they write the assignment, they have to also include a summary of the issues that they discuss as a group. Were there points where they argued and what kind of points were they? Were there any issues of gender? Were there any issues of race? It is in the development of the fact pattern, that I am able to introduce these issues as underlying issues.

Olympia Duhart: There are benefits and drawbacks to the tactics used at the University of Maryland by Paula Monopoli and at Florida A&M by Maritza Reyes. It's difficult to do certain types of skills training in doctrinal courses, for instance. But both women highlight how legal educators can impart important knowledge and skills related to the practice of law.

And that's our mini-series. Thanks for tuning in. You can listen to the roundtable discussion we held at Seyfarth Shaw about solutions. I'm Olympia Duhart. This episode was produced by Kyle McEntee. Theme music by Brad Kemp. Thank you to all of our guests and to Kimber Russell, Marissa Olsson, Ashley Milne-Tyte, Caren Ulrich Stacey, and Susan Poser for your help. We also want to thank Diversity Lab for a generous donation very early in the project.

Women In The Law is a production of Law School Transparency. To learn more about LST, visit lawschooltransparency.com. To learn more about this mini-series and listen to all past episodes, visit LSTRadio.com/women/.