Opinion’s #MeToo discussion shapes new hopes for civility

Last month, the 2nd District Court of Appeal made a groundbreaking step forward by directly tying the societal importance of the #MeToo movement to civility in California courtrooms. In a crucial "note" applicable to all California lawyers, the opinion in Briganti v. Chow, 2019 DJDAR 10941 (Nov. 22, 2019), uses the social impact of the #MeToo movement to compel judges across California to eradicate bias once and for all in the operation of our courtrooms.

While the tone of Briganti is calm and measured, its explicit reference to the #MeToo Movement marks a watershed for women in the judiciary and legal professions. Women in the law have long-feared speaking out against harassment and bias because of very realistic fears of retribution. The American legal system by nature is devoted to adversarial conduct and aggressive positions:

Will the partner blame me if the client leaves because I told him our meeting was not a "date"?

Will I be retaliated against if I am a witness for a staff member asserting harassment?

What evidence do I really have?

If I do these things and lose my job, will I be blackballed behind the scenes and unable to obtain employment?

What is more important: my personal dignity or my client's case when sexist comments are made in the courtroom?

Who can I share these concerns with and not risk looking potentially like a malcontent?

The #MeToo movement has answered these questions in our wider society -- it is time for everyone to open up these conversations, examine beliefs and move forward. Yet for many women in the law, such questions and fears remain. Still waters can run terribly, terribly deep.

The underlying gravamen of Briganti involves timely and interesting anti-SLAPP issues. The defendant made scandalous and inflammatory comments on Facebook about a well-known female motivational speaker. The trial court issued a mixed ruling -- defamation charges survived but intentional infliction of emotional damages claims did not. The ruling was fully affirmed, but the court then turned to what it called a "teachable moment." The following inflammatory language by the appellant's counsel was specifically called into question:

"Briganti ... claims that ... Chow defamed her by claiming she was 'indicted' for criminal conduct, which is the remaining charge [in the case] after the [trial judge] ... an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench, ruled for Chow granting his anti-SLAPP Motion to Strike Respondent's Second Cause of Action but against Chow denying his anti-SLAPP Motion against the First Cause of Action .... With due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let's review the errors!"

Chow's lawyer was questioned about these statements in oral argument. When given a chance to apologize, counsel "doubled-down" by stating that a "compliment" had been intended. The ourt of Appeal was not amused:

"As two of our judicial colleagues noted recently, '[d]espite the record numbers of women graduating from law school and entering the legal profession in recent decades, as well as the increase in women judges and women in leadership positions -- not to mention the [#MeToo] movement -- women in the legal profession continue to encounter' discrimination. Unfortunately, 'unequal treatment does not cease once a woman joins the judiciary.' Calling a woman judge -- now an associate justice of this court -- 'attractive,' as Chow does twice at the outset of his reply brief, is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not. Such comments would not likely have been made about a male judge." (Citations omitted.)

An article cited in the opinion by Justice Lee Smalley Edmon and Judge Samantha Jessner issued a powerful call for in the law who have been bullied or sexually harassed to "come forward": "The primary deterrent of reporting is fear -- fear of damaging one's professional image, fear of harming a client's case, or fear of antagonizing a judge. It takes courage to blow the whistle, particularly when the wrongdoer wields power. Thankfully, however, we have seen a sea change in recent years." Edmon & Jessner, "Gender Equality Is Part of the Civility Issue," ABTL Report Los Angeles 21 (Summer 2019).

This statement simply hits the nail on the head: The change that is being fostered by the #MeToo social movement may now finally be having an impact on the daily lives of men and women.

Over the past several years, rules, guidelines and ethics standards have grown increasingly explicit in their remonstrations against bias as expressed via incivility. Adopted in 2011, for example, Los Angeles County Superior Court Local Rule 3.26(d)(1) suggests via "guideline" that "Counsel should at all times be civil and courts in communicating with adversaries." See also Central District of California Civility and Professionalism Guidelines, Section 8 ("we will not disparage the intelligence, morals, integrity, or personal behavior of our adversaries before the court," adopted in July 1995). In 2014, the California Attorney Oath for new lawyers, Rule 9.7, was amended to include a statement that, "[a]s an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity."

Today, California's new Rules of Professional Conduct are unequivocal. Rule 8.4.1 requires that "In representing a client ... a lawyer shall not ... unlawfully harass or unlawfully discriminate against persons on the basis of any protected characteristic," including "sex, gender, gender identity, gender expression" and many other categories of discrimination. Such conduct may now be directly enforceable through suspension or disbarment.

Emboldened by the social consequences of #MeToo as embodied in our developing judicial rules of conduct, the court in Briganti has quietly created a bold new precedent. Courts now have an express mandate to deter gender and other biases in our courts:

"The California Code of Judicial Ethics compels us to require lawyers in proceedings before us 'to refrain from ... manifesting, by words or conduct, bias, prejudice, or harassment based upon race, sex, gender, gender identity, gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.' (Cal. Code Jud. Ethics, canon 3B(6)(a).) That goes for unconscious as well as conscious bias. Moreover, as judicial officers, we can and should take steps to help reduce incivility, including gender-based incivility. One method is by calling gendered incivility out for what it is and insisting it not be repeated. In a more extreme case we would be obliged to report the offending lawyer to the California State Bar."

Since 2017, the strong voices of the #MeToo movement have undeniably changed society. As pointed out by one recent commentator, "the #MeToo movement has identified recidivist harassers and workplaces where sexual harassment are rife, advocated for increased workplace harassment training, and, ultimately, called for the expulsion from the workplace of many high-profile men who, for years engaged in objectionable conduct." Murray, M., "Consequential Sex: #MeToo, Masterpiece Cakeshop and Private Sexual Regulation," 113 NW. U. L. REV. 4, at 827, 866 (2019). Not every female judge or attorney has knowingly experienced gender bias in the courtroom. But many have endured such comments for sake of their careers or in the name of zealous advocacy. With the support of our judiciary, lawyers are finally speaking to each other and sharing our experiences. Perhaps we are truly on the edge of not only a return to civility of manners in our courtrooms, but a substantive civility that is truly open, unfettered and fair to all. 