What they don’t hear
From the “oh dear god how many times do we have to spell this out before you get it” files – the American Bar Association needs to add a rule telling male lawyers not to make sexist remarks to colleagues in court.
When 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.”
The remark drew a rebuke and fine in January from a federal magistrate who declared that the lawyer had “endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.”
Of course a lawyer is always going to want to throw off “the opposing lawyer” because that’s how opposing works – you use every trick you can think of. But some tricks are impermissible, and sexist remarks should be one of those.
“I got the pat on the head,” said Jenny Waters, chief executive of the National Association of Women Lawyers, referring to what she encountered while in private practice.
The group, which represents 5,200 women, has been backing an effort to add to the American Bar Association’s model rules of professional conduct an amendment to prohibit harassment and discrimination by lawyers in the course of practicing law. Bar associations in 23 states and the District of Columbia already have some kind of protections against harassment and discrimination by lawyers in the conduct of their profession, but the proposal would establish a standard nationwide.
Thus interfering with our precious freedom to have individual states where women can be belittled freely, as God intended.
But critics of the proposal argue that a rule would inhibit lawyers from speaking freely on behalf of their clients and circumscribing the way they run their practice.
“It would change the attorney-client relationship and impair the ability to zealously represent clients,” said Kim Colby, director of the Center for Law and Religious Freedom at the Christian Legal Society, which opposes the amendment.
Yes, it would rule out that particular trick. It’s a little bit paradoxical that a Christian pressure group is defending dirty tactics…but not all that paradoxical.
Such a change would also have a chilling effect on the ability of lawyers to engage in free speech, religious exercise and other First Amendment rights, Ms. Colby argued.
Blah blah blah – except that what lawyers do is already hedged with rules and restrictions. Lawyers can be held in contempt – there’s a chilling effect for you.
Most businesses have rules against harassment and discrimination. Yet the legal profession as whole lacks a flat ban on such behavior.
Freedom freedom freedom!
Supporters of the proposal say that while there is no way to track the frequency of such comments and actions, they happen often. Lawyers, they say, use such behavior as a tactic to fluster or intimidate opposing counsel.
That’s the nature of opposition – but there are fair tactics and then there are unfair ones.
Typically, women say, they ignore insults or sexist comments for fear of imperiling their careers or being labeled less than a team player.
As they do in universities, and the military, and corporations, and and and.
Two years ago, the A.B.A. began looking into adding a stronger prohibition to eliminate incidents like Ms. Rifkin’s.
Rather than sweeping the episode under the rug, Ms. Rifkin, 37, decided to underscore what she saw as hostile treatment by asking Judge Grewal for sanctions to punish the opposing counsel, Peter Bertling, a lawyer in Santa Barbara, Calif.
In his order, Judge Grewal noted that Mr. Bertling’s comment served to “reflect and reinforce the male-dominated attitude of our profession.”
You know who else is harmed by that attitude? Female clients, that’s who.
Mr. Bertling, 56, said in an interview that he had not heard what he considered sexist remarks in his decades of practice.
I hope a possible explanation for that, other than the actual absence of sexist remarks, occurred to him. Or to put it another way: Dude, since sexist remarks don’t target you, you probably aren’t all that alert to them.
But after the fine, he asked a lawyer in his office if she had. She showed him inappropriate comments in deposition transcripts, but said she did not seek penalties for them because, like many female lawyers, she thought doing so was futile.
So he re-read the rules, and said he’ll try to do better. Great.
Oh the benefits of a record transcript!