Don’t call me honey: Rethinking rules of professional responsibility

Posted in Ethics

A recent New York Times editorial discussed some important changes being made to Rule 8.4 of the American Bar Association’s model rules of professional conduct. The article discusses amending Rule 8.4 to “prohibit harassment and discrimination by lawyers in the course of practicing law.” This amendment makes harassment or discrimination on the basis of race, sex, religion, ethnicity, disability, sexual orientation, marital status, age, or socioeconomic status punishable as professional misconduct in the practice of law. As such, this misconduct is subject to disciplinary action, which ranges in severity from fines to suspension of legal license. Essentially, this amendment codifies rules that many state bar associations already have in place. However, affirmation by the ABA gives this code of conduct broader national reach.

Many women lawyers, especially litigators, have endured being called pet names—such as “honey,” “darling,” “girl,” or “gal”—in the courtroom. These terms, of course, are not automatically offensive, and they may even be considered endearing or complimentary in some instances. However, when pet names are used by opposing counsel in the context of litigation, they can diminish a woman’s role in the proceedings and her presence in the room. I can personally recall being asked to make copies of key documents while meeting with opposing counsel with clients present. Although making copies is certainly something I can do, given the context, this directive reinforced stereotypes and was, in fact, the kind of discriminatory behavior I believe the model rule amendment will help curb.

What took so long?

Given that most businesses and workplaces already have anti-discrimination policies in effect, it is almost unfathomable that the legal profession had lagged so far behind. Perhaps this can be attributed to the fact that many people assume that lawyers—a group of professionals with, presumably, acute awareness of discrimination and harassment issues—would require no such guidance. In fact, in this day and age, it is important for all of us to be reminded that words and actions can be hurtful and demeaning.

While I do think strengthening the model rule is necessary, I also understand critics who believe the rule will be used as a sword, especially in the legal world where lawyers are trained to make arguments and pay close attention to words and actions. For example, can a male attorney who compliments a female counterpart’s outfit be suspended from practice? Certainly, we can all imagine instances where this revised rule might be abused, resulting in unfair punishment.

Nonetheless, if the rule deters discriminatory and harassing conduct, which it will certainly do, it is worth having. No one should feel professionally undermined due to gender, religion, sexual preference, etc. Legal acumen is what matters most. So let’s focus on that and leave stereotypes behind.