Sunday, September 11, 2016

Sexist Remarks and Professionalism

The American Bar Association has undertaken an assault on "sexist remarks." There is a perception that women regularly have to put up with condescending, sexist remarks in the courtroom, as reported in American Bar Association moves to ban Sexist Remarks in Courtrooms.

According to the American Bar Association's (ABA) Commission on Women in the Profession, women account for about 36% of the American legal profession. And, they account for about 48% of the lawyers in private practice. That latter figure is reasonably consistent with the female law school enrollment and graduation. So, females are perhaps approaching equal representation in the profession. The figures do demonstrate under-representation of women in other regards, such as law school administration and large company corporate counsel positions.  

The author of American Bar Association moves to Ban Sexist Remarks in Courtrooms contends that "women have it tough in the legal world." Citing "a recent" ABA study, the author notes that "people make comments every day on everything, from what women lawyers are wearing or whether they are smiling or can take a joke." The contention is that women attorneys are perceived differently. A man might raise his voice in a discussion and be seen as assertive or strong. A woman doing the same might be perceived as overly aggressive or combative. 

This article is not the first time I have perceived this. I have had a handful of lawyers complain over the years regarding their treatment at the hands of some particular judge. Often, attorneys feel they have been treated poorly. I somewhat regularly hear complaints and perceptions about female judges and perceptions of their behavior. In response, I have asked attorneys "has judge _______ (trying to pick a similarly situated male judge, that is in a similar office, region, etc.) ever ____________ (inserting behavior" "raised his voice," "entered such an order," etc.). 

I am surprised by how frequently a complaining attorney will concede that the complained of behavior has been similarly perpetrated by male judges. Complainers often concede that the female judge's behavior is really no different than other male judicial behavior they have witnessed. But, they insist that it is "different," or that it made them feel "different." Why is there this apparent tendency for some people perceive women differently?

The author of American Bar Association moves to Ban Sexist Remarks in Courtrooms says that, despite the title of the article suggesting the ABA is driving this movement, that the "National Association of Women Lawyers wants to do something about" language used both to and around female attorneys. The goal is to correct language so that it is less likely to offend female attorneys. It seems axiomatic that any such improvement in language is likely to work similarly on the perceptions of other women in the legal process, parties, witnesses, bailiffs, clerks, and more. 

The National Association seeks to amend the ABA Model Rules of Professional Conduct for attorneys. If adopted, the Model Rules would "explicitly ban harassment or discrimination on the basis of gender," "race, religion, national origin, ethnicity, disability, age, sexual orientation, marital status or socioeconomic status in conduct related to the practice of law." That is a long list. Some would argue that it could be broader yet, but it is a significant list. 

There will be concerns about the First Amendment, and freedom of expression. There is an ongoing debate in this country about who can say what and were. There are even those who advocate for repeal of the First Amendment, arguing that people should not be subjected to words that offend or upset them. A debate rages now regarding the University of Chicago, and the adoption by schools like Purdue University of the so-called "Chicago principles." Free speech and offense is nothing new. 

At some schools, the First Amendment protects speakers, at the expense of ethnic or other group's offense. A recent article Anti Semetic Incidents at CUNY Considered Protected Speech, reveals that some students are subjected to language which offends or upsets. The Atlantic recently addressed the First Amendment and language that is "bigoted" and "hatred." But there are as many as 300 campuses which enforce "speech codes" that preclude spoken words that are directed as a result of race, religion, sex or orientation. It seems to a topic of lively discussion. 

The American legal system and Constitution have provided protection for vile and inappropriate speech for decades. Groups with offensive and divisive messages have consistently been allowed to speak, publish, and demonstrate. That does not make their messages right or accepted. But those messages are tolerated under the auspices of a Constitutional belief that the best solution to "bad speech" is not censorship, but "more speech," "good" speech. See, Whitney v. California, 274 U.S. 357 (1927). And, there will likely be arguments regarding whether courtroom language is in fact "directed at," or "intended to." There will likely be First Amendment resistance to any rule directed at speech, as proposed.  

Admittedly, the subject of courtroom decorum could certainly use attention. And, the move towards greater responsibility for professionalism is laudable. The Florida Bar and Supreme Court have been working on this for years. Progress is being made, with professionalism panels now in place across Florida.  But that is not to say that the journey is over. In fact, I would suggest that the journey towards professionalism will never be over. We will contend with the inappropriate and unprofessional behavior throughout our careers; some portion of that may consistently involved speech that is disturbing or even offensive. 

In this regard, we as a profession cannot fail to persevere. If we concede the battle for professionalism, we concede the demise of this profession and being a lawyer becomes a business like any other. 

Perhaps the proposed amendment will represent progress. But whether that amendment comes to pass or not remains to be seen. And if adopted by the ABA, remember, that the ABA Model Rules are suggestions for states. Even if progress is attained there, that does not dictate that the various states will adopt such a change. In short, there is a long road ahead for this proposal. 

But, there is strength and progress in the proposal now. Regardless of the path of this rule, it has already achieved success. Today's success for this proposal is that it is generating conversation about sexism and other inappropriateness. In a profession, a gathering of professionals, a society of good individuals who strive mightily for what is right and appropriate, perhaps the proposal itself can drive more recognition and discussion. 

Perhaps we can make progress before or without a rule change? Can we raise our consciousness regarding how we perceive others? Can we be more empathetic about the way in which others may perceive (or misperceive) what we say? Can we as a profession be the "more speech" suggested by Justice Brandies in Whitney? When we see such boorish or offensive behavior, hear such remarks, might we affect change through our own reactions to it? Maybe this is unrealistic, and maybe individual effort would be slow to change our profession. But if such effort would in fact change our profession, however slowly, do we not each owe it to our future to make that effort?

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