It’s been nearly 25 years since Anita Hill, a lawyer and law professor, testified before the US Senate judiciary committee about the sexual harassment she allegedly experienced at the hands of then US supreme court justice nominee (and fellow lawyer) Clarence Thomas. Though Thomas was ultimately confirmed to the court, the hearings and the media coverage led to a rapid uptick in the filing of sexual harassment complaints and federal awards to victims, and a broader understanding of what qualifies as gender discrimination and sexual harassment.  Except, it seems, in some parts of the legal profession: it was only last week that the American Bar Association adopted a model rule to encourage state bar associations to prohibit and sanction sexist, racist and other discriminatory comments and conduct by lawyers.  Mark Johnson Roberts, chair of the ABA’s commission on sexual orientation and gender identity, provided an example of an incident that happened to a colleague in Oregon. “It’s a business social event, and her opposing counsel in one of her cases is there,” he said. “To make a long story short, he grabs her butt. She tells him, ‘My husband isn’t going to appreciate that, please stop.’”  “Later in the party, he comes up, hugs her and grabs her breast. She bolts away, and he follows her. He corners her and he asks her in the crudest possible terms first, whether she was going to copulate with her husband that evening and second, whether she was going to perform fellatio upon him.” Preferring not to pursue criminal charges for the assault, she went to the state bar and, he said, was told there was no recourse unless he had a criminal conviction. She later filed criminal charges and he was convicted, and Oregon has since amended its state rules.  Though characterized in some media coverage as a rule that would bar judges and lawyers from calling women “honey” or “sweetheart” in legal settings, the new rule would go much further, barring “harassment and discriminatory conduct based on race, religion, sex, disability, LGBTQ status and other factors when such conduct is related to the practice of law” in state bar associations that adopted it. Punishment for offenders found to have violated the rule would vary, but could involve official warnings, fines and, in egregious cases, potential disbarment.  Only 25 state bar associations and the District of Columbia currently prohibit such discrimination and harassment, which means that lawyers in half the country who have been subjected to it – and especially those in private practice – have little, if any, professional recourse.  In the US, state bar associations are responsible for sanctioning lawyers (including disbarring them) for professional misconduct. Without a prohibition on harassment and discrimination, conduct that could be considered a fireable offense in many American workplaces would have limited consequences for lawyers who engage in it.  Lori Rifkin, a trial lawyer in northern California, is one of a small number of female lawyers who have successfully obtained sanctions against lawyers who made sexist comments in a professional setting. As part of a more expansive motion to have a male opposing counsel in a case sanctioned for a variety of what she and her co-counsel termed “substantial discovery misconduct”, she was able to present evidence of him using sexist language to disparage her.  While questioning her opponent’s client in a deposition, she said that the male opposing counsel kept cutting her off, and as she was objecting to his behavior for the record he did so again.  “He told me that my behavior was not becoming of a woman,” she said. “And then he stopped.”  “There was kind of a gasp in the room,” Rifkin said – a room that included a female court reporter and several other lawyers – “and he added: ‘Or an attorney who is acting professionally.’”  While researching her efforts to sanction the lawyer in the case, Rifkin found that there were only two other successful motions in similar cases, despite the fact she had experienced sexist comments from her earliest days as a lawyer. “I’ve dealt with – and I’m sure you can pick any woman attorney off the street and she’s dealt with – comments like these. It’s just so rarely this clear and on the record.”  The judge in the case excoriated the opposing counsel for his remarks, and levied a fine.  But stories like Rifkin’s are all too common, even if court filings and sanctions against offenders are not. “I’m 37, and I have supervised numerous female attorneys younger than I, and I can confidently say that [this behavior] is not going extinct,” she added.  Katina Ancar, who currently works as in-house counsel for a public agency in California but used to work at a law firm, has had to find ways to cope with both gender and racial discrimination in her career, mostly from clients and co-workers.  “Very recently, I had a very senior employment lawyer, the most senior employment attorney in the organization – a white woman – walk up to me,” she said. “And her hand came at me, and as she’s doing it, she says: ‘I know I shouldn’t be doing this’, and then she put her hand in my hair.”  Many African Americans view the tendency of some white people to, without permission, fondle their natural hair a racist act. “I wasn’t a person,” she said. “I was an object for her.”  Ancar, who had only recently cut her hair in order to transition to a more natural style, found out it wasn’t her co-worker’s first time touching the hair of African American employees. “I told another African American attorney in the office, and she said: ‘Yeah, she’s done it to me.’”  But it was often clients, Ancar said, who engaged in the most discriminatory action. Some, for instance, often refused to let the young female associates make court appearances, even though they did the bulk of work on most cases. “We’ve had to use statements by judges [in support of the associates who write the briefs presenting them in court] to convince even our female clients to allow female associates to appear in court,” she said, because there was no direct way to call the behavior discriminatory without alienating the client.  “You get sexism from men, but it permeates the way women think as well.”  Paula Brantner, a lawyer and consultant who formerly ran the nonprofit Workplace Fairness, said of the American Bar Association’s model rule: “It’s one of those things that I think was obviously overdue.”  “You would think the profession would be able to police itself, that this would be a no-brainer,” she added. “But it’s happening in the courtrooms, it’s happening between opposing counsel and co-workers, it’s happening outside the office in professional settings.  “It’s not about the competitive practice of law. It’s about people seeking to assert power over other people, and this is one way they do it.”  Rifkin agreed. “The fact that it took until 2016 is emblematic of an ongoing problem in the legal profession,” she said. “The idea that sexism or racism or homophobia have somehow gone away or become less prevalent in the legal profession is a myth.”  And though Rifkin’s successful case against her opposing counsel drew plenty of media coverage at the time, she’s not sure it changed enough minds. “As recently as last week,” she explained, “an attorney approximately my age, the first thing he said to me in a deposition was: ‘Calm down.’”
American Bar Association adopted model rule just last week to encourage states to implement discrimination sanctions – currently unavailable in half of US states