Prohibited by Rule Sexual Harassment as Attorney Misconduct
| Publication year | 2020 |
| Pages | 39 |
| Citation | Vol. 49 No. 8 Pg. 39 |
August, 2020
PROFESSIONAL CONDUCT AND LEGAL ETHICS
BY JOSEPH G. MICHAELS
This article addresses the recent adoption of Colorado Rule of Professional Conduct 8.4(i), which prohibits lawyers from knowingly engaging in conduct that constitutes sexual harassment in connection with professional activities. The article discusses the rule’s prohibitions and scope, addresses prior cases that considered sexual harassment as lawyer misconduct, and considers a lurking constitutional concern.
Lawyers, by virtue of their membership in the legal profession and as offers of the judicial system, have a special responsibility to pursue justice and to conduct themselves as representatives of the profession to the greater public.[1] In this capacity, a lawyer’s conduct “should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs.”[2] A lawyer should not “use the law’s procedures” to “harass or intimidate”; rather, lawyers should demonstrate respect for the legal system.[3] As ambassadors to the community, lawyers also should promote the public’s “confidence in the rule of law[.]”[4]
In September 2019, the Colorado Supreme Court amended Rule 8.4 of the Colorado Rules of Professional Conduct (Colo. RPC or the Rules) to add an explicit prohibition against sexual harassment by lawyers.[5] The prohibition, while far from controversial as a prophylactic—for who would argue that sexual harassment is either professional or appropriate?—still carries potential pitfalls. Nevertheless, new Rule 8.4(i) provides clear notice proscribing the behavior, as well as necessary clarification and consolidation of existing rules that had been interpreted, albeit as an imperfect patchwork, to address sexual harassment before the rule’s implementation.
The adoption of Rule 8.4(i) not only is consistent with the aspirational principles of being a lawyer but is also morally, ethically, and professionally required by them.[6] This article discusses the new rule, reviews cases that had addressed sexual harassment before Rule 8.4(i) went into effect, gauges those cases’ continuing vitality, and concludes by addressing First Amendment concerns raised by the rule’s language.
The Addition of Rule 8.4(i)
The Colorado Supreme Court adopted Rule 8.4(i) in the midst of a nationwide reckoning with sexual harassment and misconduct by men in positions of authority exerting power over younger, predominantly female, subordinates who had minimal recourse. These men include disgraced movie mogul Harvey Weinstein,[7] former Ninth Circuit Court of Appeals Judge Alex Kozinski,[8] former Today Show host Matt Lauer,[9] and former Alabama Supreme Court Chief Justice and twice-unsuccessful U.S. Senate candidate Roy Moore,[10] among many others.[11]
The public and social media outcry rapidly gained steam, culminating in the worldwide #MeToo movement. Indeed, one of the #MeToo movement’s biggest effects “has been to show Americans and people around the world how widespread sexual harassment, assault, and other misconduct really [is].”[12] Even the United States Supreme Court long ago recognized the “persistent problem” that the “hostile environment [of] sexual harassment” creates.[13]
Against this backdrop, the Colorado Supreme Court considered and adopted Rule 8.4(i), a rule designed to prohibit sexual harassment in the legal profession.[14] The new rule provides that it is “professional misconduct for a lawyer to engage in conduct the lawyer knows or reasonably should know constitutes sexual harassment where the conduct occurs in connection with the lawyer’s professional activities.”[15]
Rule 8.4(i) has two noteworthy components: (1) the language of the rule itself; and (2) its accompanying Comment [5A], which further defines “sexual harassment” and also addresses “professional activities”—in language that potentially both clarifies and muddies the scope of the rule.[16] The comment first provides that “[s]exual harassment may include, but is not limited to, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that a reasonable person would perceive as unwelcome.”[17] The comment thus focuses on the unwelcome nature of the behavior and, implicitly, the uneven power dynamic involved. Additionally, the comment defines “sexual harassment” in wording generally consistent with federal and state law.[18]
Next, Comment [5A] references the “substantive law of employment discrimination, including anti-harassment statutes, regulations, and case law” as providing helpful guidance, but not the exclusive bases, for enforcing new Rule 8.4(i). Doing so necessarily steers enforcement of the rule, as well as notice of its prohibitions, to established law originating from these authorities.[19] In this respect, the comment effectively functions as a limiting construction.
Finally, the comment addresses “professional activities,” which, it explains, “are not limited to those that occur in a client-lawyer relationship.”[20] This explanation clarifies that professional activities are broader than a limited business or client setting, but it does not identify the outer reaches of “professional activities.”[21] The comment, however, appears to limit Rule 8.4(i)’s prohibition to lawyers’ actions in their capacity as a lawyer, exempting actions in the lawyer’s everyday private life.
Regardless, Rule 8.4(i) and Comment [5A] have to be read in the overall context of the Preamble and Scope to the Colo. RPC, which state that the Rules apply to “practicing lawyers even when they are acting in a nonprofessional capacity.”[22] Rule 8.4(i), however, limits the prohibition on sexual harassment to a lawyer’s involvement in “professional activities.”[23] And while Comment [5A] confirms that professional activities extend beyond those solely in the lawyer-client setting, it does not explain when a lawyer’s activity ceases to be a “professional activity.” Yet, nothing in Comment [5A] suggests that Rule 8.4(i) applies outside of the professional realm. In this respect, Rule 8.4(i) appears to impose a narrower prohibition than the Preamble and Scope would impose. This construction makes sense because if Rule 8.4(i) were to apply to a lawyer at all times, in all circumstances, it potentially could apply even when a lawyer acts as a private citizen in everyday life, which very likely would trigger constitutional implications. Clearly, Rule 8.4(i) targets sexual harassment in a narrower context: as matter of professional regulation and as related to the practice of law.
ABA Rule 8.4(g) as a Model?
In 2016, the American Bar Association approved ABA Model Rule 8.4(g), which prohibits “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.” Nevertheless, the ABA Rule “does not preclude legitimate advice or advocacy consistent with the [ABA] Rules.”[24]
Colorado did not—and still largely does not—have a rule analogous to ABA Model Rule 8.4(g); rather, Colorado’s Rule 8.4 contains Comment [3], which somewhat tracks the prohibitions in ABA Model Rule 8.4(g), albeit without expressly addressing “harassment or discrimination” as described in the ABA rule.[25] Colo. RPC 8.4 Comment [3] provides:
A lawyer who, in the course of representing a client, knowingly manifests by word or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates [Colo. RPC 8.4](g) and also may violate [Colo. RPC 8.4](d). Legitimate advocacy respecting the foregoing factors does not violate paragraphs (d) or (g).[26]
In explicitly referencing Rules 8.4(d) and 8.4(g), Colorado’s Comment [3] indicates that the conduct described would be “prejudicial to the administration of justice,” per Rule 8.4(d), or would engender bias against a person for the delineated characteristics, per Rule 8.4(g).[27]
But neither those rules nor Comment [3] to Rule 8.4 squarely address sexual harassment in professional settings, let alone explicitly prohibit it. And Rule 8.4(g) expressly limits itself to conduct “in the representation of a client,”[28] meaning it does not reach all “professional activities” in which a lawyer may appear as a representative of the profession.
In contrast, ABA Model Rule 8.4(g) prohibits “harassment or discrimination” as it occurs more broadly as “related to the practice of law.” This language is more specific to the question of “harassment” “on the basis of sex,” and it more widely casts its net over professional activities.[29] Specifically, Comment [4] to ABA Model Rule 8.4 defines “conduct related to the practice of law” as including:
■ representing clients;
■ interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law;
■ operating or managing a law firm or law practice; and
■ participating in bar association, business, or social activities in connection with the practice of law.[30]
While the first three bullet points all generally fall within the “representation of a client,”[31] the last point is instructive for Colo. RPC 8.4(i) and its prohibition on sexual harassment “in connection with the lawyer’s professional activities.” Indeed, participating in bar association, business, or social activities encompasses not just client representation, but also business development; employer-employee relationships within law firms and professional relationships between law firms; the professional law school setting, including professor-student...
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