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Sybil Procedure: The ABA, Donald Trump and regulating language

In August, the American Bar Association declared that it would constitute professional misconduct to discriminate against or harass opposing counsel in the course of legal practice.  More specifically, the revised ethics rule forbids comments or actions that single out someone on the basis of sex, race, age, religion, color, national origin, disability, or sexual orientation (among other traits).

Many states already had similar rules (including Minnesota!), but there was no national bar. And, as the New York Times reported, many female lawyers complained that this permitted opposing counsel to call them “honey” or “darling” all too frequently.

The rule, however, has not been without its critics. Some have argued “that such a broad rule would impair free speech while representing clients.”  My response to the critics?  Deal with it.

Law is the least diverse profession in the nation.  According to the Washington Post, 81 percent of accountants are white, 72 percent of physicians and surgeons are white, but 88 percent of lawyers are white.  And women constitute a third of our profession, but only 1/5 of law firm partners, general counsels of Fortune 500 corporations and law school deans. In fact, “Women are less likely to make partner even controlling for other factors, including law school grades and time spent out of the workforce or on part-time schedules,” the Post reported.

Clearly sticking with the status quo isn’t working—if we want our profession to reflect the society that we represent, we need to try something different.  And eliminating harassment within our profession seems like a good (albeit pretty small) place to start.

Why do I care about someone calling me “honey” in a deposition or arbitration?  Because whenever an opponent has used a term of endearment in reference to me, I have personally felt like it was a tactic.  A tactic to call out my gender.  A tactic to call out my age.  Or a tactic to demonstrate that the speaker was in a more powerful position than I was.  I have never had someone call me “honey” or “darling” and felt like they were being courteous.  And I have never heard a male term of endearment used – this is a one way ratchet.  Just this past month, I attended a deposition where opposing counsel felt compelled to call me “little lady.”  I called him out on it.  He stopped. But I don’t think that me-five-years-ago would have had the confidence to call this guy out on his language. And that’s where the rule change can help make a difference.

I felt most adrift as a lawyer just after graduation.  I was unsure, convinced my opponents knew that they were witnessing my first hearing, deposition, or settlement conference.  And I prepared for my opposing counsel to unnerve me. I was ready—if my opposing counsel asked if it was my first deposition, I was going to say, “does it look like this is my first deposition?” But I didn’t prepare for sexism. I didn’t prepare for opposing counsel to ask if I was the court reporter.  And that’s the point.  No one should have to prepare for this.  And it is a barrier to entry into our profession. So let’s just eliminate it as a possibility.

The recent events unfolding on our national political stage have only strengthened my belief that the ABA’s actions are necessary. With horror, I watched a candidate for president of the United States discuss a professional woman as though she was an “it,” and force her to hug him (and Billy Bush) as an inside joke. When asked to explain, the candidate described his behavior as simple “locker room talk,” implying that his conversation was normal.

As a result, please forgive me for having a bit of PTSD.  If someone thinks that these conversations are normal, does that mean all female professionals are being talked about this behind their backs?  Are we all being reduced to pieces of meat as soon as we leave the room?  Is this normal?

I don’t think so.  I have many dear male friends at the bar and know that they were similarly horrified by both the behavior and the explanation.  (My husband actually was in a men’s locker room when the tape aired for the first time.  He explained that everyone in the Minneapolis locker room expressed nothing but horror and disapproval regarding the sentiments.)

For me, this issue is not one of free speech.  Yes, you have a right to free speech.  Our profession, however, also has a right to regulate the types of speech that are appropriate within our guild.  We have absolutely no problem doing this with legal advertising. We have no problem regulating lawyer communications with jurors. We have no problem regulating the speech that can and cannot be used with an unrepresented party.  So we’re going to draw the line at harassment?  This makes no sense. As a self-regulating profession, we get to set standards for the type of profession to which we want to belong.  And I want to belong to a profession that is opposed to the use of harassing language.

One comment

  1. An article on civility in language makes flippant reference to “having a bit of PTSD.” Another case of “Free speech for me, but not for thee.”

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