The American Bar Association on Monday considers an amendment to its model rules of professional conduct prohibiting harassment and discrimination by lawyers in the course of practicing law.
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.”
“A sexist remark,” said the judge, Paul S. Grewal of the U.S. District Court in San Jose, Calif., “is not just a professional discourtesy, although that in itself is regrettable and all too common.”
Many female lawyers would agree. They say that even as more women graduate from law school and represent clients in courtrooms, it is not rare for them to be addressed as “honey” or “darling.” Sometimes they are subject to a grating remark, or an arm around the shoulder, they say.
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“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.
The ABA policymaking body is scheduled to vote on that amendment Monday.
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.
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, Colby argued.