Tips for preventing harassment and discrimination in law firms

In the years leading up to the pandemic, many high-profile allegations of sexual harassment and discrimination were in the headlines, typically relating to attorney compensation and promotions. While the pandemic has certainly dominated all stories over the past year, the scourge of harassment and discrimination remains a vital issue for law firms.

Notably, on top of the existing challenges for the profession, the pandemic has created new challenges, particularly for women. The impact on women has been well-documented, with many pulled between work obligations and the need to care for children or other family members due to the pandemic.

The American Bar Association took action prior to the pandemic to make clear that engaging in sexual harassment and discrimination is inconsistent with an attorney’s ethical obligations. In 2016, the ABA adopted Rule 8.4(g) of the Model Rules of Professional Conduct, which provides that it is professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

The adoption of Rule 8.4(g) was not without controversy. Some considered the rule a welcome step to reinforce that harassment and discrimination will not be tolerated, and a step that aligned the model rules with rules previously adopted by a number of states to address such conduct. However, others objected to the rule on a variety of grounds, including that the rule infringes on an attorney’s free speech rights. The Texas attorney general issued an opinion concluding that Rule 8.4(g) is unconstitutional for that reason, among others.

Some states have resisted adoption of Rule 8.4(g), but California forged its own path in adopting a separate rule, Rule 8.4.1, that expands on the provisions of the ABA Model Rule. That rule is titled “Prohibited Discrimination, Harassment and Retaliation” and details conduct prohibited “[i]n representing a client, or in terminating or refusing to accept the representation of any client” as well as conduct prohibited “[i]n relation to a law firm’s operations.”

For law firms, the conduct prohibited under Rule 8.4.1 includes, among other conduct, to “unlawfully discriminate or knowingly permit unlawful discrimination” on the basis of any protected characteristic (defined to include race, sex, and a number of other characteristics) and to “unlawfully harass or knowingly permit the unlawful harassment” of firm employees and other listed persons. The phrase “knowingly permit” is defined as “to fail to advocate corrective action where the lawyer knows of a discriminatory policy or practice that results in the unlawful discrimination or harassment prohibited by [the rule].” Rule 8.4.1 further addresses disciplinary charges issued under the rule and clarifies that certain conduct is not prohibited by the rule, including the representation of clients alleged to have engaged in unlawful discrimination, harassment, or retaliation, and providing advice as otherwise required or permitted by the California Rules of Professional Conduct.

Law firms in California can therefore assess whether any action may be necessary to ensure compliance with Rule 8.4.1. Regardless of the jurisdiction, however, there are steps that attorneys and firms can take to proactively address the risks of discrimination and harassment.

Create a Positive Culture

The most successful firms create a culture where it is clear that discrimination and harassment are not tolerated. The lack of a positive firm culture can be a silent contributor to facilitate discrimination and harassment. The prevailing attitude of attorneys in a firm can contribute to whether attorneys feel comfortable reporting harassment or discrimination, or whether their reports are demonized.

This is not to say that discrimination or harassment only occurs at those firms that tolerate it. Even the most supportive environments can have bad actors. However, the environs in a firm may help shape whether such conduct is openly reported or discouraged.

One important step in developing a positive firm culture is to establish mentoring programs for younger attorneys — whether official or unofficial. This can help create a culture of support at the firm and can allow the firm to identify and address potential instances of harassment or discrimination. It also sends the message that harassment is unacceptable, regardless of how high on the totem pole the harasser sits. A strong mentoring program can also help guide younger attorneys regarding what is and is not appropriate behavior.

Change With the Times

Although some circumstances warrant altering or monitoring behavior to prevent potential harassment, this can be taken too far. The practice of law is often accused of lagging behind other industries in many ways, such as the legal industry’s reluctance to adopt new technologies. However, when it comes to the work environment, law firms cannot afford to live in the past by maintaining unwritten rules that deprive attorneys of equal opportunities within the firm.

For example, one vestige of the past is the practice of some male attorneys to limit interactions alone in a professional or social setting with any woman other than their wives, purportedly to avoid the appearance of impropriety. The problems with this practice in the workplace are obvious (and numerous). For example, a male senior attorney who refuses to travel to meet clients with a female colleague arguably deprives that colleague of important career opportunities based on her sex. Some of the most important components of an attorney’s development from junior associate to senior partner come from mentoring and sponsorship opportunities. A lack of those opportunities is a significant impediment to the success of an attorney in the workplace.

For a profession that has struggled to reach parity of men and women at the partner level, such potentially disparate treatment of female attorneys could extend the impact of past discrimination and could deprive new generations of opportunities based on outdated notions.

By acknowledging such problems and proactively responding to potential issues, law firms can facilitate a culture that does not tolerate discrimination or harassment. 