Ethics and the Silence-Breakers

In its December 6, 2017 issue, TIME magazine announced its persons of the year as Silence Breakers, people who endured, and then bore witness to, sexual harassment. The accompanying article included the recently exposed institutionalization of sexual harassment in the entertainment and sport industries, but it also described the experiences of people in other professions and across all income levels. Other industries may be ripe for exposure of similar practices, including the legal profession.

In fact, the profession had a very public sexual harassment crisis in October 1991: the Senate confirmation hearing regarding the nomination of Clarence Thomas to the United States Supreme Court. His former assistant at the federal Department of Education and later at the Equal Employment Opportunity Commission, Professor Anita Hill of the University of the Oklahoma College of Law, testified to his to his behavior toward her as his subordinate at both agencies. While Justice Thomas vigorously denied Professor Hill's testimony, he and the Senate Confirmation Committee acknowledged that if such conduct occurred, it would constitute unlawful sexual harassment.

The Senate confirmed Thomas as an Associate Justice of the nation's high court without making specific findings as to the events described by Professor Hill, leaving the factual issues unresolved to this day. Perhaps for that reason, the hearings--and the discussion that ensued-- had little deterrent effect within the legal profession.

If recent events are any indication, many newer lawyers can expect to be targets of sexual harassment at some point in their careers. In 2017 alone, a dean of a major California law school announced his resignation in the face of sexual harassment allegations; a California appellate court justice resigned under similar circumstances; a judge on the Ninth Circuit faced an investigation of sexual harassment charges and resigned as well. In addition, the Chief Justice of the California Supreme Court acknowledged being a victim of sexual harassment during her legal career.

As the public spotlight moves beyond entertainment and sports industries, there is an opportunity for the legal profession to imagine a different culture for itself, one of zero-tolerance for sexual harassment. The tools are at hand.

Judicial Ethics
The Code of Judicial Ethics (CJE) specifically prohibits sexual harassment, thereby attempting to level the playing field, at least between lawyers and judicial officers. CJE Canon 5(b) expressly provides that a judge shall perform judicial duties without bias or prejudice and shall not, in the performance of judicial duties, engage in speech, gestures, or other conduct that would reasonably be perceived as sexual harassment. Moreover, Canon 6 provides that a judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, or gender.

These rules make clear that judges are responsible not only for their own conduct but for monitoring that of lawyers, to the extent that it occurs in proceedings over which the judges are presiding. The Commission on Judicial Performance provides a Public Decisions Database in which one can search publicly available information about disciplinary action taken against judges where the misconduct included sexual harassment.

Lawyer Ethics
For lawyers, rule 3-120(B) of the California Rules of Professional Conduct (CRPC) prohibits sexual relations between lawyers and clients if such relations are demanded incident to or as a condition of legal representation. The rule also prohibits the use of coercion, intimidation, or undue influence in entering into sexual relations with clients, and it also bans such relations that would cause the lawyer to perform legal services incompetently.

However, sexual harassment of clients during the representation, assuming no actual relations occur, is not specifically addressed by CRPC rule 3-210. For that matter, nor does rule address harassment where both parties in the lawyer/client relationship are lawyers themselves.

CRPC rule 2-400 prohibits unlawful discrimination, or knowingly permitting unlawful discrimination, on the basis of several protected categories, including sex or sexual orientation. Rule 2-400(A)(2) defines 'knowingly permit" as a failure to advocate corrective action where the member knows of a discriminatory policy or practice that results in discrimination; section (A)(3) states that the terms "unlawfully" and "unlawful" shall be determined by reference to applicable state or federal statutes that make discrimination in employment and in offering good and services to the public unlawful.

Rule 2-400 is notorious for its limitations. For example, the list of protected groups in section (B) is much narrower than its state and federal counterparts. Section (B) also limits the scope of the rule to specific conduct that occurs in the management or operation of a law practice. The listed activities are (1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or (2) accepting or terminating the representation of any client. See CPRC rule 2-400(B)(1) and (2).

Even more restricted is enforcement of rule 2-400. Section (C) states that no disciplinary investigation or proceeding may be initiated by the state bar unless and until another tribunal has adjudicated a complaint and found that unlawful conduct occurred. Such finding may then be used as admissible evidence of misconduct evidence in a state bar proceeding; however, no discipline may be imposed unless the other tribunal's finding of unlawfulness is fully adjudicated through appeal. This restriction can delay discipline for years. It also explains why lawyers who are the subject of complaints of sexual harassment often take steps to avoid formal adjudication, for by so doing they also avoid disciplinary prosecution. Rule 2-400 is the only CRPC with this "pre-adjudication" requirement.

(That may change soon. In 2017 the Rules Revision Commission recommended the adoption of proposed rule 8.4.1, which would replace rule 2-400 and substantially expand its scope and eliminate the pre-adjudication requirement. It is currently pending review and approval by the California Supreme Court.)

Duty to Prevent & Intervene
Rule 2-400 may be outdated, but it is not toothless. Lawyer/victims have ethical recourse. Rule 2-400(B) imposes a duty to advocate corrective action, suggesting that subordinate lawyers, even victims themselves, have an equal responsibility with managers to act when they know of misconduct.

The official discussion following the text of rule 2-400 is not black-letter law and is therefore not enforceable, but it provides guidance to other avenues of relief and enforcement. Although the state bar cannot impose discipline under 2-400 another tribunal has made a final adjudication of unlawful conduct, the state bar can begin an investigation upon the first finding of unlawful discriminatory conduct, so that prosecution can proceed immediately after the finding occurs. The rule discussion points out that the pre-adjudication requirement applies only to rule 2-400; the same misconduct may also warrant independent discipline under Business and Professions Code sections 6106 or 6068, the California Supreme Court's inherent authority to impose discipline, or other disciplinary standards, which are not subject to the pre-adjudication condition.

Key Code Sections
The Business and Professions Code enumerates some important duties of lawyers that sexual harassment may violate, including failing to "support the Constitution and laws of the United States and this state." See Cal. Bus. & Prof. Code § 6068(a).

Section 6106 prohibits acts of moral turpitude, dishonesty, or corruption irrespective of criminal conviction, and the rule 2-400 discussion suggests that discriminatory conduct may rise to that level. Incidents of sexual harassment may also raise actionable complaints other CRPC rules. Rule 1-120 prohibits assisting in violations of any of the CRPC or of the State Bar Act. Rule 3-110 prohibits failing to act competently, and incompetent performance of legal services is a foreseeable hazard of lawyer-on-lawyer sexual harassment in a law firm, where professional judgment of both offender and victim may become impaired.

When an organization is a client, rule 3-500 presents special challenges for its lawyers. Client confidentiality must be maintained, but if the lawyer knows that the organization is violating the law or is considering violations, the lawyer may take actions that appear to be in the organization's best lawful interest, including urging reconsideration, explaining consequences and, if warranted by the seriousness, referring the matter to the next highest internal authority that can act for the organization. If the organization's leadership insists upon action or refuses to act when an action is required by law, the lawyer may be ethically required to withdraw or resign under rule 3-700(B).

The "Boss" Problem
What meaning, if any, does the current attention to sexual harassment have for lawyers? First, much of the regulatory regime against discriminatory behavior by lawyers depends on the evolution of social mores; for example, does sexual harassment constitute an act of moral turpitude that triggers professional discipline? And what about the lawyer who knows about incidents of sexual harassment within a company, yet remains silent?

These issues may be difficult at times - consider the dilemma faced by in house counsel who learns that his or her boss is unlawfully sexually harassing other employees, customers or clients, and the organization's leadership refuses to take action to stop it. While the ethical issues may be vexing, rest assured of one thing: they will not go away.

As public intolerance of sexual harassment increases, intolerance by the legal profession should follow as well. In 2018, the ethical lawyer will be a responsive manager, a protective co-worker, and above all, a Silence-Breaker.

Teresa J. Schmid is a partner in the firm of Schmid & Watson LLP. She is a consulting expert in legal ethics and lawyer regulation. She is a past chair of the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee and a member of the State Bar of California's Committee on Professional Responsibility and Conduct. The views expressed are her own.