At the Business Law Section Annual meeting in Austin, Texas, several of the Business Law Section Committees developed a two-part program to explore the ethical obligations and issues around the #Me Too Movement as well as to share best practices for attorneys. The committees involved included the Diversity and Inclusion, Corporate Compliance, Corporate Counsel, Government Affairs Practice, Professional Responsibility and Young Lawyer Committees. To hone in on the ethics concerns that are not often the primary focus of attorneys’ panels addressing sexual harassment, the committees decided to first pursue a program that explored the ethics of the #Me Too movement from a legal ethics and business ethics point of view. The range and diversity of the committees involved in this effort highlights how important this issue is and how every segment of the legal community needs to be informed and educated on this issue. This article will give a brief overview of the topics covered by that first panel and analysis of what the business lawyer should consider as they move forward with advise client and colleagues.
ABA Model Rule 8.4(g)
The ABA Model Rules of Professional Conduct were amended in August 2016 before the rise of the #Me Too movement. This amendment added Model Rule 8.4(g), which expands professional misconduct to include engaging in harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. Significantly, this Rule includes not just apply to conduct in the courtroom but all “conduct related to the practice of law.” This would include bar events, law firm dinners, CLE’s, and all other such events. The ABA engaged in an extensive process and debate before the final adoption of Model Rule 8.4(g). However, regardless of this extensive process, the Rule was not adopted without controversy and that controversy continues today as individual states determine whether to adopt the Rule in their state. At this time, only Vermont has adopted Model Rule 8.4(g) outright.
Critics of Model Rule 8.4(g) raise concerns that the Rule seeks to govern conduct outside the courtroom, and that the Rule violates lawyers’ First Amendment rights of free speech, free exercise of religion, and freedom of association. They argue that the Rule is too broadly worded, and therefore, inappropriately seeks to regulate private speech and conduct. Accordingly, many states, including South Carolina, Louisiana and Nevada, have rejected the rule outright. Numerous other states have adopted some version of the rule with variations that often limit the application to the courtroom.
While controversy surrounded Model Rule 8.4(g) when it was adopted, this was, as noted, adopted prior to the public rise of the #Me Too movement. Accordingly, the context and conversation around this Rule has changed since its’ original adoption. In fact, some now argue that Model Rule 8.4(g) is not worded broadly enough considering the developments that have occurred since August 2016. Regardless of where you fall on the debate over Model Rule 8.4(g), it started an important conversation on what could, or should, be done to combat sexual harassment and discrimination in the profession.
ABA Model Rule 8.3
Indeed, this conversation will necessarily continue because of the impact that Model Rule 8.4(g) has on Model Rule 8.3. Model Rule 8.3 says that an attorney must report another attorney when a Rule is violated. Reading these rules together, an attorney has a duty to report this manner of harassment and discrimination. As the debate rages over Model Rule 8.4(g)’s breadth and application, it will have little impact if attorneys who do observe behavior that violates the Rule fail to report it.
ABA Resolution 300
The path forward on the Model Rules and how best to proceed is a debate that will continue within the profession at the ABA and state levels. While the debate continues, the ABA recently sought to take concrete action in the area of sexual harassment and discrimination. At the 2018 ABA Annual Meeting in Chicago, Resolution 300 was adopted, which urges legal employers not to require mandatory arbitration of claims of sexual harassment. The mandatory arbitration clauses have been identified as one of the major concerns with the current way in which sexual harassment cases are handled. Not only has the ABA targeted these clauses, but legislatures around the country are also reviewing these clauses and other provisions that are thought to create a culture that fosters protecting perpetrators of sexual harassment.
Business Ethics Considerations
A business lawyer must understand the legal ethics of the #Me Too movement and their obligations as a practitioner, but the business lawyer must also be aware of the business ethics that have arisen. The rules governing employers and their employees are being looked at in a whole new light. The traditional rules and models for conduct are being upended. Some companies are voluntarily changed their policies and are looking at new models. Other companies have not been as proactive and may end up having to react to the changing landscape as the result of legislation that has been passed at the federal, state and local levels. Existing federal, state and local laws prohibit sexual harassment and discrimination based on sex in the workplace. However, as a result of the #Me Too movement, many are saying these laws do not go far enough and do not actually protect the workers they are meant to protect.
It is with these arguments in mind that legislatures at the federal, state and local levels are evaluating existing legislation and recommending changes. For now, the main focus of these legislative efforts has been targeting arbitration provisions and eliminating confidentiality requirements when settling sexual harassment disputes. However, many legislative bodies are looking at much more far reaching proposals that would significantly change the workplace landscape. So far, only two States, New York and Washington, have enacted comprehensive sexual harassment legislation.
Significantly though, virtually every other state in the Country is actively exploring some form of new legislation in this area. Whether or not this legislation gets adopted or passed in the various legislatures, a conversation has been started that the business lawyer must be aware of when working with clients in this arena. Most significantly, a business lawyer must be aware of what laws have been passed and enacted and how that will impact not only their advice to their clients but also how they conduct their own business.
Developments in New York State
For example, as of October 1, 2018, every employer in the State of New York must adopt a sexual harassment policy that includes a complaint form for employees to report alleged incidents of sexual harassment. Further, pursuant to the legislation that included this piece, even non-employees can file claims of sexual harassment when they occur in an employer’s work place. By October 9, 2019, every employee will have to complete model interactive training on sexual harassment that meets minimum standards that will be set by the State.
Best Paths Forward
As with the debate over Model Rule 8.4(g), there is significant debate over whether legislative changes are the best way to address sexual harassment and discrimination and accomplish meaningful change. These debates will not abate anytime soon, so it important to explore the issues and understand how legislation will impact the dynamic between employers and employees as legislative action is contemplated.
Regardless of what rules, regulations or legislation is adopted, there has been a change in the conversation governing how individuals are treated in the workplace. The #Me Too movement has resulted in a changing power dynamic. This shift of power is still occurring, so it is important to have a conversation about how the power is changing and what can be done to turn the #Me Too movement into effective change that will better the profession as a whole and positively change the employer/employee dynamic.