January 2018Volume 23Number 3PDF icon PDF version (for best printing)

The times, they are a changin’

In the wake of the recent sexual misconduct allegations coming forth against celebrities and politicians, the conversation of sexual assault and harassment has gained attention and momentum. The viral #metoo movement has opened up this topic to anyone on the internet to facilitate women to come forward and publicize their experiences with sexual assault and harassment. The #metoo movement demonstrates that this type of misogynistic behavior is prevalent across our country.

Attorneys are not exempt from sexual misconduct conversation. On August 8, 2016, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility’s Resolution 109 regarding a new Rule 8.4(g) Misconduct was adopted by the American Bar Association House of Delegates. The Rule, as adopted, states as follow:

It is professional misconduct for a lawyer to:

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

In the words of immediate past ABA President Paulette Brown, “The current Model Rules of Professional Conduct (the “Model Rules”), however, do not yet reflect the monumental achievements that have been accomplished to protect clients and the public against harassment and intimidation. The association should now correct this omission. It is in the public’s interest. It is in the profession’s interest. It makes it clear that discrimination, harassment, bias and prejudice do not belong in conduct related to the practice of law.”

At the Illinois State Bar Association’s December Mid-Year meeting, the Illinois State Bar Association Assembly heard arguments in favor and in opposition on whether it should recommend that Illinois adopt the American Bar Association’s Model Rule 8.4(g). The ISBA Assembly believed that the rule as drafted did not properly define “discrimination” and “harassment” to allow the means to justify the ends. There was further discussion that the Illinois Rules of Professional Conduct 4.4 and 8.4(d) and (j) already provide the avenue for disciplinary action in the event of an attorney’s commission of discrimination and harassment in the course of the practice of law. Despite the Illinois State Bar Association Assembly’s opposition of Illinois adopting ABA Rule 804(g), the decision to adopt the Rule will be left to the Illinois State Supreme Court.

The Judiciary is also not immune from the sexual misconduct conversation. U.S. Supreme Court Chief Justice John Roberts reviewed the judiciary’s sexual harassment issues as part of his 2017 Year-End Report on the Federal Judiciary. This report allows the federal judiciary to review and analyze the standard of conduct and procedures available to investigating and correcting sexual assault and harassment. “These concerns warrant serious attention from all quarters of the judicial branch,” Roberts wrote in his report. “I have great confidence in the men and women who comprise our judiciary. I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies.” This report was released on December 31, 2017 on the heels of the retirement of the former Chief Judge of the Ninth U.S. Circuit Court of Appeals, Alex Kozinski, following allegations of sexual misconduct.

On December 19, 2017, Judge Alex Kozinski announced his retirement effectively immediately following allegations from fifteen (15) women that Kozinski groped them, made lewd comments or showed them pornography. The Ninth Circuit opened a misconduct inquiry against Judge Kozinski that eventually led to his retirement. The Ninth Circuit is the largest federal appeals court, hearing cases from nine Western states.

Taking initiative, Chief Judge Diane Wood of the Seventh Circuit Court of Appeals announced on December 29, 2017, the establishment of a special committee tasked with examining the process for how employees of the Seventh Circuit can raise claims of harassment and how those claims are then handled. Judge Wood designated Judge David Hamilton of the Seventh Circuit Court of Appeals to chair the committee, with six other judges: Circuit Judge Diane Sykes, Judge Tanya Walton Pratt, Judge Gary Feinerman, Judge Nancy Rosenstengel, Judge Jacqueline Cox, and Circuit Executive Collins Fitzpatrick. The special committee will also review the current Equal Employment Opportunity Plan and Employment Dispute Resolution Plan of the United States Court of Appeals.

The national conversation regarding sexual misconduct has led to action and will lead to reform. What can you do? Raise your voice and encourage other women to speak up to stop sexual harassment. Help review and improve workplace policies on sexual harassment. Show your support by joining the January 20, 2018 March to the Polls, the Second Annual Women’s March in Chicago and around the country. January 21, 2017 marked the First Annual Women’s March with 250,000 women and allies marching to raise awareness for issues affecting women. One of the focal points for this year’s march is the issue of sexual harassment. Make the conversation on sexual misconduct turn into reform, and march with fellow men and women on January 20, 2018.

Emily A. Hansen is an Associate Attorney at Botti Marinaccio, Ltd., and practices Family Law in Cook, DuPage, Kane and Will Counties.

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