CURRENT MONTH (February 2023)
Ethics and Professional Responsibility
Bias, Discrimination and Harassment: Rules for Judges and Lawyers
Those who were fortunate enough to snag a later flight out of Scottsdale on the final day of the 2022 Appellate Judges Education Institute (AJEI) Conference were treated with a thought-provoking ethics presentation. Professor Keith R. Fisher, Distinguished Fellow at the National Judicial College, focused his hourlong presentation on bias, discrimination, and harassment as they relate to judicial and attorney ethical rules. One would think this would all be review of well-known rules, and that in 2022, racial slurs and inappropriate sexual behavior had long been banished from the courtroom. Unfortunately, that is not the case.
To put the audience in the appropriate mindset, Professor Fisher asked everyone to consider a statement made by an employer to his employee in the United States Supreme Court case Faragher v. City of Boca Raton, 524 U.S. 775 (1998), “Date me or clean the toilets for a year.” Following a few giggles from the room, Professor Fisher then asked everyone to consider what would happen if a judge made the same comment. And thus began the foray into what ethical rules governing judges and attorneys say, and what they do not say.
To discuss the language of the relevant ethical rules, Professor Fisher used ABA Model Code of Judicial Conduct (MCJC) Rule 2.3 and ABA Model Rules of Professional Conduct (MRPC) Rule 8.4(g). He noted the judicial rule served as a template for the attorney rule, but they are not the same in many important ways. For example, both rules list a number of classes against which prejudice, whether it be in the form of bias, discrimination, or harassment, is forbidden. Most of the categories such as race, sex, religion, national origin, ethnicity, disability, age, and sexual orientation, track the suspect classes identified in several United States Supreme Court cases.
However, MCJC Rule 2.3(B) mentions “political affiliation” as an attribute against which judges may not show bias or prejudice. MCJC Rule 2.3(C) requires a judge to hold attorneys appearing before them to the same standard—including prohibiting harassment based on political affiliation. However, Professor Fisher noted MRPC Rule 8.4(g) does not include political affiliation, but does include gender identity as a suspect class against which harassment or discrimination is prohibited as part of conduct related to the practice of law.
Further adding to what may be incongruency amongst these rules is the language regarding the underlying reasoning for the actions they govern. The relevant MRPC rules include the language indicating a lawyer may not engage in conduct the lawyer “knows or reasonably should know” is harassment or discrimination based on the suspect classes, including gender identity. MRPC Rule 8.4(g). MCJC rules do not consider the mens rea of the actor, mandating a judge “shall not” engage in the prohibited behavior.
Finally, both the MCJC and the MRPC leave the interpretation of the rules open, giving disciplinary boards discretion in defining “bias,” “prejudice,” and “harassment.” This ambiguity may be a double-edged sword. It gives discretion to disciplinary boards to determine whether a judge or attorney has engaged in bias, prejudice, and/or harassment based on the specific facts of the case. At the same time, it makes unclear the behavior prohibited in a specific situation.
Professor Fisher then moved on to the language concerning those actions taken by judges and attorneys which may run afoul of the rules. He noted comments to MCJC Rule 2.3(B) indicate that bias, prejudice, discrimination and harassment can manifest as words or conduct. These words and conduct include, among other things, slurs, demeaning nicknames, attempted humor based on stereotypes, suggestions of connections between the characteristic and crime, and irrelevant references to personal characteristics. These are likely familiar examples. Less obvious manifestations of prohibited behavior under the rules include facial expressions and body language. These behaviors are unacceptable from the bench—and hopefully unacceptable as part of daily interaction outside of the courtroom.
Regarding attorney behavior that may not obviously violate the MRPC, Professor Fisher explained, based on the comments to MRPC Rule 8.4(g), what “conduct related to the practice of law” means outside of doing the things lawyers do—representing clients, filing motions and the like. For example, attorneys may not engage in harassment or discrimination when they are interacting with witnesses, operating or managing a law practice, participating in a bar association, and engaging in business or work-related social activities. In short, this conduct is not solely related to actions taken in a traditional legal capacity—it includes conduct an attorney engages in as part of society more broadly.
Professor Fisher would later note the language of MCJC Rule 2.15 and MRPC Rule 8.13. Both state that a judicial actor, whether it be a judge or attorney, is bound by the relevant ethical rules to inform the appropriate professional authority of an instance of misconduct of another judicial actor. While the duty to report misconduct by a judge is absolute, an alleged violation of MRPC Rule 8.4(g) must “raise a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” MRPC Rule 8.13(a). The comment to Rule 8.13 indicates that judging “fitness as a lawyer” does not consider all illegal activity, though offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice, or the pattern of repeated illegal activity, whether within that list or not, may call into question a lawyer’s fitness. Similarly, those actions deemed morally offensive, such as adultery, are not related to a lawyer’s fitness, presumably unless they involve “conduct related to the practice of law.”
Armed with this knowledge, Professor Fisher asked the audience to consider real-life violations of MCJC Rule 2.3 and MRPC Rule 8.4(g). Without using the names of the parties involved, though they could be reasonably ascertained by a simple online search, he set forth the facts in several judicial disciplinary cases to illustrate the state of the legal ethical landscape. While these incidents are likely somewhat isolated—there aren’t a barrage of disciplinary decisions finding actions of bias, prejudice, discrimination, or harassment rising to the level warranting discipline—these examples call into question the integrity of those actors, and those who were not disciplined. As muddied as some of the Model Rule language may be, these examples were a harrowing picture of what happens sometimes in one of this country’s most revered branches of government.
In one example, a Colorado judge used a racial slur in the presence of a Black employee and proceeded to inquire about the proper pronunciation and use of variants. The judge then went on to comment on the Black Lives Matter movement, indicating she believed “all lives matter,” and she found NFL players kneeling during the national anthem to be objectionable. In another example, a California judge presiding over a petition for a restraining order stereotyped behavior related to domestic violence based on national origin and ethnicity. The judge stated, “if I read a declaration where they say, ‘He spit on me, he threw rocks at me,’ almost always it’s a Middle Eastern client. If the declaration says, ‘He drags me around the house by the hair,’ it’s almost always a Hispanic client.” These comments had no relevancy to the proceedings, and no place in society. The last example involved an attorney who filed a pleading in a divorce case arguing, when determining custody of the parties’ children, that the wife “associated herself around town in the presence of a black male.”
The audience was aghast at the behavior in these examples. But what may be more shocking is the discipline enacted against the egregious conduct. In each case, the judge or attorney received a public admonishment, public reprimand, or public censure. Why were these offenses not punishable by a more severe sanction? What behavior is not being reported? Why are we allowing these actions to continue?
The next portion of Professor Fisher’s presentation focused specifically on sexual harassment and discrimination. He asked the audience to consider the comment, “You look great! Have you been working out?” Seemingly innocuous in the realm of more blatant sexually inappropriate comments, Professor Fisher reflected on certain issues with the comment. Is it ever acceptable in the workplace? Does the gender of the speaker and gender of the recipient matter? How does the relationship between the parties matter? He noted that, after pondering those questions, the audience must remember these types of comments only rise to the level of sexual harassment when they are unwelcome.
Professor Fisher reviewed the sexual harassment categories under Title 7—quid pro quo harassment and hostile work environment claims. The earlier statement, “Date me or clean the toilets” likely falls under both categories—the statement is a quid pro quo statement which created a hostile work environment. Professor Fisher highlighted other examples of sexual harassment such inappropriate attention because of sex, gender, or sexual orientation; inappropriate or unwanted touching, unwanted exposure to sexual materials including pornography, unwelcome sexual advances or requests for sexual favors, and physically threatening behavior directed towards a person because of sex or gender. Again, these examples could be actionable under Title 7—but is a successful Title 7 claim a per se violation of the MCJC?
Professor Fisher noted the introductory canon concerning a judge’s responsibility to “uphold and promote the independence, integrity, and impartiality of the judiciary,” and requirement to “avoid impropriety and the appearance of impropriety.” MCJC Canon 1. Pursuant to MCJC Rule 1.1, a judge “shall comply with the law, including the Code of Judicial Conduct.” Based thereon, it would seem a victim must first pass the Title 7 threshold to be successful in a disciplinary action against a judicial perpetrator. However, Professor Fisher told the audience not to be fooled—a lower standard of proof applies under the MCJC, meaning behavior actionable as a violation of the MCJC may not rise to the level of behavior actionable under Title 7. To that point, in Matter of Seaman, 627 A.2d 106 (N.J. 1993), the court noted, “Although undoubtedly all forms of behavior that cross the legal threshold of sexual harassment would constitute judicial misconduct, many forms of offensive interpersonal behavior that would violate the Code of Judicial Conduct would not meet the legal definition of sexual harassment.” Professor Fisher noted a judge’s actions or statements could violate MCJC standards if they are, among other things, inappropriate, offensive, discourteous, distasteful, or undignified—but those same actions may not violate Title 7.
Professor Fisher reminded the audience that it is not just verbal communication, but also electronic communication, that can provide evidence of prejudice, bias, harassment, or discrimination. He related the case of Judge Laurie Booras, who sent an email to her then-lover describing a colleague as a “little Mexican” and referring to her ex-husband’s new wife as a “squaw.” Judge Booras’s relationship with her lover went sour, so he went public with the receipts of her misconduct. Professor Fisher iterated the lesson to never assume that emails are private. A good caveat in the digital age where nothing really “disappears.”
In the final portion of his presentation, Professor Fisher focused on the constitutionality of the relevant ethical rules. He recounted the complaint involving Pennsylvania’s version of MRPC 8.4(g) wherein the plaintiff, Pennsylvania attorney and Senior Program Officer at the Foundation for Individual Rights in Education, Zachary Greenberg, argued the confines of Rule 8.4(g) violated his First Amendment right to free speech. Greenberg, who often spoke on the regulation of hate speech on college campuses, argued his rights to free speech had been violated because discussing hate speech often requires him to delve into language that may be offensive or potentially hateful to some audience members. Summers asserted that, under the language of Rule 8.4(g), every presentation concerning hate speech “carries the risk that an audience member will file a bar disciplinary complaint.” Professor Fisher asked the audience to examine the constitutionality of MRPC 8.4(g) in that circumstance. Where do you draw the line?
Professor Fisher revealed the holding in the case—Rule 8.4(g) did unconstitutionally infringe Greenberg’s First Amendment right to free speech. Greenberg v. Goodrich, 593 F.Supp.3d 174 (E.D. Penn. 2022). The court held Rule 8.4(g) was unconstitutional because it constituted impermissible viewpoint discrimination and was overbroad in its prohibition of attorney speech. Additionally, the court found Rule 8.4(g) was void for vagueness because it invites arbitrary or discriminatory enforcement. This case illustrates the issue with language Professor Fisher discussed in the first part of his presentation—what is harassment, bias, prejudice, discrimination? Professor Fisher observed these ethical issues may fall under the same umbrella as the regulation of obscenity—you’ll know it when you see it.
The subject matter of Professor Fisher’s presentation may seem pedestrian in the legal community. We all know the rules, how to follow the rules, and what happens if we don’t follow the rules. But what if we don’t? What if we’re not thinking enough about what we say and do and how those actions are perceived and possibly hurtful to those we interact with in the legal realm? Professor Fisher prompted this author, and likely others, to ponder these questions and more on a sunny Sunday morning in Scottsdale, Arizona. Hopefully doing so will improve the integrity, impartiality, and propriety of the legal profession as a whole.
This article originally appeared in the 2023 Winter Issue of Appellate Issues, a publication of the Council of Appellate Lawyers.