Refining misconduct: Discrimination and harassment within the Illinois Model Rules of Professional Conduct
Reading through Crain’s Chicago Business recently I came to an article titled “The Hardest Suit to File.” The article reported that a female attorney, Traci Ribeiro, of the Chicago office of Sedgwick is suing the firm for gender discrimination, unequal pay and retaliation.1 Sedgwick LLP is an international litigation and business law firm that has 26 attorneys in their Chicago office.2 Ribeiro’s suit claims that “Sedgwick’s male-dominated culture systematically excludes women from positions of power within the firm, which in turn leads to lower compensation for female attorneys as compared to male attorneys.”3 Ribeiro is a graduate of American University’s law school and joined Sedgwick in 2011.4 In three years, Ribeiro was generating more business than all but two of the firm’s lawyers; however, the only lawyer who was promoted to equity partner in 2015 was a man who had “less than 10 percent of Ribeiro’s revenues.”5 Despite Ribeiro’s book of business and revenue for the firm, she was repeatedly passed over for promotions and her compensation in 2015 was the lowest that she had ever received.6 The suit describes an instance where Ribeiro was singled out in a meeting by a partner who suggested to lower her pay because Ribeiro “needed to learn to behave.”7 Currently Sedgwick is attempting to keep the suit in arbitration rather than the courts.8
Sedgwick is not the first large law firm to be sued for gender discrimination. In January of this year, LeClairRyan, a 380-person law firm providing business counsel and representation in corporate law and litigation, was sued by a former attorney for gender-based discrimination in violation of the provisions of the Civil Rights Act of 1964, retaliation and other claims.9 In 2013, Greenberg Traurig LLP settled a proposed $200 million employee gender bias class action suit brought by its female shareholders.10
Despite the media attention to recent suits against large law firms, gender discrimination and pay gaps are not a new phenomenon in the legal profession. Female attorneys earn less and receive fewer promotions than their male counterparts.11 The National Association of Women Lawyers in Chicago’s 2015 survey found that women make up only 18% of equity partners, and those who reached equity status, only earned 80% of what the male equity partners earned.12 Crain’s Chicago Business and the Chicago Network conducted a survey this year and found that 46% of the female responders felt that they were paid less than their male equals.13
What made this Crain’s article particularly interesting was the mention of the American Bar Association’s recent passage of the amendment to Model Rule 8.4 of the Model Rules of Professional Conduct. For all of the readers who attended the Illinois State Bar Association’s Annual Meeting this year, the proposed amendment to Rule 8.4 was the inclusion in the definition of professional misconduct as conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of sex, race or other personal characteristics in conduct related to the practice of law. The official comments to this amended rule define “conduct related to the practice of law” as “representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”14 The American Bar Association House of Delegates met on August 8, 2016 and voted to adopt the amended Model Rule.15
The broad strokes and reach of this amended rule made me think, is this a possible solution to what Ribeiro and thousands of other female attorneys are facing? And, if so, should Illinois adopt such a rule?
Certainly the preamble of the Illinois Rules of Professional Conduct provides that “[a] lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having a special responsibility for the quality of justice.”16 Illinois lawyers also “play a vital role in the preservation of society.”17 The scope of our Rules of Professional Conduct instruct us to conduct ourselves accordingly so our profession retains respectability. With this special responsibility assigned to male and female attorneys, it follows that we do not want the legal profession to be tarnished with claims of harassment or discrimination.
Illinois Rule 8.4 of Professional Conduct includes within its definition of professional misconduct for a lawyer to “violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer’s fitness as a lawyer.”18 Illinois’ Rule provides several factors to weigh in determining if misconduct occurred in this nature: for example, the seriousness of the facts or whether the act was committed in connection with the lawyer’s professional activities. Further, “[n]o charge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawful discriminatory act, and the finding of the court or administrative agency has become final and enforceable any right of judicial review has been exhausted.”19
Note the key distinctions between the existing Illinois Rule and the new American Bar Association Model Rule. First, Illinois only includes discrimination; whereas the American Bar Association includes both discrimination and harassment. Second, the American Bar Association broadens the reach of misconduct to conduct related to the practice of law, which includes social gatherings in connection with the practice of law or Bar Association functions. Illinois’ rule reaches only to conduct that would reflect on the lawyer’s fitness as a lawyer and would be weighed by factors and the totality of the circumstances. Third, the Illinois rule requires that a court or administrative agency find discrimination has occurred prior to a charge of professional misconduct for discrimination. The American Bar Association’s rule does not require such a finding to determine misconduct.
As a female attorney, I can appreciate the goals of the American Bar Association’s amended rule. I certainly do not want any attorney, whether male or female, to endure harassment and discrimination within the legal profession. Despite my appreciation, I find that the American Bar Association’s amended rule is too broad. The reach of “conduct related to the practice of law” touches situations that may not affect an attorney’s fitness without the safeguards of a finding by a court of law or administrative agency that discrimination or harassment exists. Further, although the terms “discrimination” and “harassment” are defined in the model rule, we are now bringing employment law into governing professional misconduct. Those individuals who are employed by a governing agency of professional misconduct have not become the judge and jury for determining employment law violations.
If Illinois believes it is necessary to amend Rule 8.4 of the Illinois Rules of Professional Conduct to align it more to the American Bar Association’s Model Rule, then I think we need to strike a balance. If Illinois were to amend and expand the rule, I think it should retain “discrimination” and include “harassment” within the definition of misconduct. I believe that whether or not an individual engaged in discriminatory or harassing conduct should be weighed by the totality of the circumstances. I also firmly believe that a finding of harassment and/or discrimination by an administrative agency or court of law of competent jurisdiction should be a prerequisite to filing a complaint under the rule. I believe that this is an essential safeguard so the judges and juries in employment law claims can make the appropriate findings prior to a compliant being heard before the Illinois Attorney Registration and Disciplinary Commission.
In conclusion, I commend the American Bar Association for addressing a problem that affects female attorneys. I believe that this is a step in the right direction to identify and end gender-based discrimination endured by Ribeiro and thousands of other female attorneys practicing in the State of Illinois. Illinois Rule 8.4(j) of Profession Conduct provides additional remedies to individuals who have endured this type of discrimination. I believe that Illinois can go further and protect individuals who have also been subject to harassment provided the existing safeguards contained in Rule 8.4(j). As more and more female attorneys are being admitted to the bar each year, there will come a point where the number of female attorneys will equal if not outnumber male attorneys. It is never too soon to fix the problems of the past and present to make the future better for our incoming attorneys.