The American Bar Association voted last week to amend its professional misconduct rules to include harassment or discrimination in the practice of law.
The ABA law is intended to serve only as a model for other state bar associations. However, many states adopt the model rules promulgated by the ABA as written.
The press has largely characterized the model rule as banning the use of “honey” or “darling” in the courtroom. Part of the impetus for the change was to curb derogatory behavior toward female attorneys. While ABA was considering the rule change, women came forward to recount their tales of demeaning language, grating remarks and even pats on the head. In one well-publicized case, attorney Lori Rifkin asked the opposing lawyer to stop interrupting her while she questioned a potential witness. He replied: “Don’t raise your voice at me. It’s not becoming of a woman.”
Yet while the ABA’s rule change could potentially prohibit this sort of conduct, it is a bit narrower and quite a bit broader than merely prohibiting the use of “honey” in the courtroom.
The rule was rewritten between the proposal and final stages to change the language from a ban on harassment or discrimination to a ban on engaging in conduct that the lawyer “knows or reasonably should know is harassment or discrimination.” This loosens the standard a bit, allowing lawyers to contend (or pretend) that they did not know that their language was harassing or discriminatory.
The rule is also significantly broader than merely prohibiting harassment or discrimination against women in the courtroom. It also prohibits discrimination and harassment on
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