Bar associations are trying to woke-up their ethics rules regarding sexual harassment and sexual discrimination, and it’s not going well. The states pretty much rejected the language of the ABA’s broad and vague proposed 8.4g, declaring it unethical for a lawyer to engage in harassment or discrimination “related to the practice of law,” whatever that means. Moreover, the rule implies that more than illegal “discrimination” is covered, and doesn’t bother to define sexual “harassment,” which has been a moving target since it was conceived. Tennessee adopted the ABA’s language, and the rule was quickly declared unconstitutional by the state Supreme Court. Now the ABA is back to the drawing board after causing this chaos, trying to tighten the language.
Maybe it was reading about the latest developments in this mess that sent my mind reeling back to 2018, when an attendee at a monthly ethics seminar I had given for more than a decade suddenly had a tantrum over my interpretation of another bar association’s ‘discrimination” rule, which prohibited a lawyer from engaging in discrimination in “employment.” Or maybe it was the shadow of doom, since I had recently set a personal record for the most unwelcome bodily sources of voluminous expurgations of blood in a 24 hour period.
Boy, if my life is going to pass before my eyes, I would urge the editor to skip this episode.
The woman, who pronounced herself pre-triggered by the Kavanaugh hearings—she believed he was a sexual predator, which immediately put her in my “Yup, deranged MeToo wacko!” file—How much do you want to bet she voted for handsy Joe Biden?—was horrified at my interpretation of the rule as allowing law firms tot accede to a client’s desire to be represented by a lawyer of a particular age, gender or race. The reasons for my conclusion were simple, and I assumed, obvious: First, a client has to be able to trust his or her lawyer, and cannot be adequately represented by a lawyer a client does not trust. Second, an individual client’s biases are still a matter of right: the law firm isn’t discriminating in employment by meeting a client’s own perceived needs. Finally, there are many situations where preferring a lawyer with a particular personal characteristic makes strategic sense.
But this was, as I said, after the attempted Kavanaugh smearing, and when the woman complained to the bar, it did not back its member and longtime trainer, me, but rather folded like a poker player with a hand that looked like a foot. The ethics department also reversed course, telling me that it didn’t agree with my interpretation, though it had inciated nothing of the sort for all those years.
“Really?” I asked. “So you are saying that a sexual harassment victim who has been traumatized and betrayed by men and who asks a firm for a female lawyer only must be denied one to comply with the rules?”
Of course I got no answer, because this wasn’t law, or ethics, it was politics. I also found myself being labeled a sexist by in an Above the Law hit piece. Meanwhile, I was told that my options were to drop the offending topic from my course, or not teach the course. It was clear that the bar didn’t want the controversy.
But as I watched yet another black lawyer this week make inflammatory statements about the death of his client’s son in a police confrontation, I thought, “You know, I was clearly right. If a firm told such a family that they had to accept their best litigator, who was Asian-American, after the family demanded a black lawyer, would anyone seriously call that employment discrimination?”
Because it isn’t.