Now that Valentine’s Day is past, you might want to reconsider that intraoffice romance you’ve been contemplating and your firm or department might want to consider what kind of procedures to put in place to protect all of their lawyers from unwanted advances and from liability–whether unintentional or not. “When Lawyers Court: Dating in Law Firms,” by Gayle Cinquegrani, published in Bloomberg Law’s Big Law Business on February 14, 2018, quotes Muir and other consultants in cautioning lawyers and legal workplaces about the potential #MeToo exposure in business as usual.
Beyond Smart: Lawyering with Emotional Intelligence has been chosen as one of the ABA’s Top 2017 Legal Titles. For those who haven’t yet gotten this comprehensive guide to understanding and using emotional intelligence in the unique context of practicing law, you can buy it here for yourself and others in paperback or as an E-book at a 30% discount through the end of February, 2018. Just enter the discount code YR17E when you check out. Go here for more information.
Congratulations to BigLaw firm Drinker Biddle & Reath for becoming an industry headliner: half of both of its two main leadership bodies are now women. As of Feb. 1, the firm’s managing partners committee of 8 has 4 women and the firm’s executive management team of 4 has 2women.
To give perspective to this development, according to the National Association of Women Lawyers’s 2017 annual survey report, the average firm has 12 people on its highest level governance committee, of whom, on average, only 3–or one-fourth–are women.
How did this happen? Drinker Biddle’s women’s leadership committee reached out to eligible women lawyers to determine who were interested in running and then spread the word about those who were. “It’s just making sure that, No. 1, the women make sure they put their hands up if they would like to be considered, and [No. 2], people know” those women are eligible, said Lynne Anderson, co-chairwoman of the women’s leadership committee, noting that the aim was not to pressure a vote for particular candidates, but to make sure the members knew these women were interested in leadership.
On Monday, February 5, 2018, Resolution 302 was adopted unanimously by the American Bar Association expanding the ABA’s existing provisions, dating back to 1992, in the case of harassment or retaliation based on gender, gender identity and sexual orientation in legal workplaces and by any one (including third parties) connected with legal work, wherever that conduct occurs. Provisions include requirements, among others, that at least one confidential anonymous reporting method (such as a hotline) be instituted; prompt, fair investigations of all complaints occur, with a written resolution to complainant; compensatory and corrective actions, including disciplinary measures, take place; disclosure is made to the highest level of management of any settlement amount paid; and regular and effective training programs be instituted.
“There can hardly be a resolution more timely than 302,” said Stephanie Scharf, chair of the ABA Commission on Women in the Profession, the resolution’s chief sponsor, while one delegate pointed out that “this resolution … is primarily about men…Men must say, ‘time’s up’.”
Rule 8.3 and revised Rule 8.4 of the ABA’s Model Rules of Professional Conduct adopted in August 2016 had already expanded legal workplace liability for harassment and discrimination and lawyers’ related failure to report any misconduct. Rule 8.4 prohibits behaving in ways “the attorney knows or should reasonably 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.” And Rule 8.3 requires that those who observe another lawyer’s misconduct have an obligation to “inform the appropriate professional authority.”
Those rules in combination with this new resolution will put many lawyers and their legal organizations and all those who service or work with them on notice of a gigantically expanded exposure not only to financial liability, but, as recent examples like Harvey Weinstein, Kevin Spacey, Charlie Rose, Steve Wynn and former U.S. Circuit Judge Alex Kozinski have shown, to professional ruin, as well. Make no mistake: these are provisions that the increasing population of Millennials in law will take very seriously and will not be afraid to pursue.
What is it that makes lawyers so vulnerable to the historically mounting filing of sexual harassment suits and the rising tide that may well follow these provisions?
As we pointed out in Scandals at the Gates, low emotional intelligence definitely plays a part. While some lawyers no doubt consciously and purposefully harass and discriminate, many more stumble because of their deficits in navigating work and social relationships. The primary deficit is in emotional awareness–which has been demonstrated to be lawyers’ Achilles heel. A failure to accurately read the emotional cues being given by their colleagues–ones that clearly spell disinterest or more strongly offense, disgust and rejection–can lead lawyers down what may seem to them an acceptable path. Low emotional empathy keeps them from appreciating the distress they are causing. And their understanding of emotions, which lawyers theoretically are better at than in other more underdeveloped emotional areas, is hampered by having the incorrect emotional data to start out with–again that emotional awareness deficit wrecking havoc. Finally, deficits in managing emotions–not knowing what to do or not being able to properly do what they may know should be done–can prompt behavior that makes the original sin even worse.
In Beyond Smart: Lawyering with Emotional Intelligence, Muir discusses how taking steps to raise emotional intelligence among lawyers and legal organizations can help address these and other challenges facing the legal industry in the 21st Century–and avoid the tsunami of liability and ruin that looking the other way may expose us to.
With all the stress of holidays and work–travelling, managing money, seeing relatives or not, all of which can be stressful–emotional intelligence skills can be more imperative than usual. We at Law People Management wish you the ability to enjoy a peaceful, invigorating and successful holiday season and new year!
Just a reminder that you have only two days to sign up for the CLE offered by the ABA’s Center for Professional Development on The Ethical Advantage of Emotional Intelligence at 1:00 PM – 2:30 PM ET on December 12, 2017. Panelists are Dr. David Shor of Northwestern University and Ronda Muir, Esq., Founder and Principal of Law People Management, LLC, and author of Beyond Smart: Lawyering with Emotional Intelligence. Registrants receive 1.50 Ethics/Professionalism CLE Credit Hours.and two significant discounts—10% off your registration rate when you enter discount code CE15CPDWEBVIP and a 30% discount off Muir’s book. Offer Expires 1/12/2018. Join us!
On Monday, November, 27, 2017, ONLY, Beyond Smart: Lawyering with Emotional Intelligence will sell online for 40% off with free shipping using Discount Code ‘CYBER17’. Don’t miss this chance to get the definitive guide to emotional intelligence in the unique context of law practice at a thanksgiving rate.
Sign up for the CLE offered by the ABA’s Center for Professional Development on The Ethical Advantage of Emotional Intelligence at 1:00 PM – 2:30 PM ET on December 12, 2017 and receive two significant discounts. Panelists are Dr. David Shor of Northwestern University and Ronda Muir, Esq., Founder and Principal of Law People Management, LLC. Registrants receive 1.50 Ethics/Professionalism CLE Credit Hours.
What is emotional intelligence and what does it have to do with ethics in the practice of law? This webinar will review the ways that emotional intelligence can produce more ethical behavior, including better communication, risk analysis, and advocacy.
While emotional intelligence is relevant to many provisions of the Preamble and a number of the Model Rules of Professional Conduct, we will focus on Rules 1.1 (Competence), 1.4 (Communication), 1.7 (Conflict of Interest), 3.2 (Expediting Litigation) and the recently revised Rules 8.3 and 8.4 (Professional Misconduct and Reporting). We will review the current trends in disciplinary and malpractice claims, probable causes of unintentional unethical behavior and recent examples of ethical dilemmas with respect to these Rules.
The four major components of emotional intelligence will be identified and their contribution to ethical behavior under these six Rules will be explained. We will also demonstrate basic exercises to help raise individual emotional intelligence skills, starting with emotional awareness, and explore the steps legal workplaces can take to raise their organizational emotional intelligence.
As a member of the faculty, Muir is able to provide you 10% off your registration rate when you enter this discount code CE15CPDWEBVIP at check-out. In addition, registrants also receive a 30% discount off Beyond Smart: Lawyering with Emotional Intelligence by Ronda Muir. Offer Expires 1/12/2018.
Beyond Smart: Lawyering with Emotional Intelligence is now available as an eBook and at a significant discount from the paperback price. Take it along on the plane or vacation. For a discount, use Code RMUIR10.
The implications of the Harvey Weinstein scandal justifiably shake workplaces across the country. Women in nearly all industries can cry “Me Too.”
So what about law? Legal workplaces have long been one big high-intensity, smart person’s social mixer with the attendant fallout, and there is no shortage in our profession of Me Too tales. The clear ranking of power that fuels some of the boldest misbehavior and makes reporting it such a risk also makes the outcome of the lawsuit fairly obvious–a partner who uses work favors to gain sexual favors from a first year associate cannot claim valid consent.
A few law firms have had–some for a couple of decades now–guidelines that have tried to more or less address the issue. One big Wall Street firm at least 20 years ago hoped to make the stakes of an intra-office liaison unattractive by saying that if such a situation developed, the higher-positioned person (senior associate, partner) of the pair would be the one to leave. That may help quell longer-term relationships, but the grab-and-pinchers, exposers and dirty talkers aren’t necessarily in the market for the long term.
The pervasiveness of such behavior is clear, as evidenced in this single state’s investigation:
“According to a report conducted by the Women Lawyers of Utah in 2010, 37 % of women in firms said that they experienced verbal or physical behavior that created an unpleasant or offensive work environment, with 27% of those women feeling the situation was serious enough that they felt they were being harassed. And a whopping 86% felt that the basis for the harassment was their sex. The numbers for males were much lower, with only 22% reporting an unpleasant work environment and only 4% feeling it rose to levels of harassment.”
Just through the narrow scope of our clientele, we have seen law firms and law departments where this kind of behavior persists and where even mega-deals with accusers were made in order to make the issue go away (reference that big Wall Street firm, which then adopted the rule). These are the lawyers who know quite precisely the cost, in terms of money, “man hours” and reputation, that a Weinstein-like scandal entails.
In Beyond Smart: Lawyering with Emotional Intelligence, Muir suggests that these harassment-prone workplaces are sitting on a time bomb. First, there is the recent (last year, at last) passage of the amended Rule 8.4 of the ABA’s Model Rules of Professional Conduct, which picks up some of the 25 or so states’s provisions who have similar language. It was proposed, according to its sponsors, because such harassment and discrimination “undermines confidence in the legal profession and our legal system,” as if we weren’t at rock bottom already. Rule 8.4 prohibits behaving in ways “the attorney knows or should reasonably 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.” And Rule 8.3 requires that those who observe another lawyer’s misconduct have an obligation to “inform the appropriate professional authority.”
Clearly intended to have wide application in the legal profession, including in the operation and management of law practices, the new Rule has the power to significantly broaden the legal profession’s exposure to liability of all kinds, but certainly with respect to sexual harassment and discrimination, since many legal cultures are conducive to harassment and suffer from chronic under-representation and under-promotion of women and minorities.
The second blade hanging over the profession’s head is the arrival of Millennials into our sacred halls. Whether you consider them snowflakes or ethical progressives, they have been marinated in the sea of micro-sensitivity, which will no doubt result in complaints of micro-aggressions that lawyers didn’t know they had. This new Rule, coupled with the Millennials’ expectation of a bully-free, sexual-harassment-free workplace, could well spell either real change in legal cultures or real liability that could even threaten survival.
One of the speakers at a Millennial conference I attended recently used the term “Chinese fire-drill” to describe, well, you know, last minute, intense actions. He was lambasted in several of the reviews I read for not being PC–what an insult to the Chinese in the audience. Similar comments were made about his reference to “having a senior moment.”
How many of your partners might be guilty of such a micro-aggression?
This is not just a caution for the men in our ranks. Ten years ago a partner at a major Wall Street firm was complaining that his son–a third year associate at another major Wall Street firm–was having an affair with his supervising partner (a woman) that he thought totally inappropriate. He was convinced she had lured his son into the affair by using work assignments and promotions and was frustrated at his inability to report her or get out of the arrangement. How typical, one thinks. It’s just usually the other way around.
Putting pressure on law cultures to actively oppose insensitivity to others may seem like a fool’s errand given the competitiveness and aggressiveness long inculcated, even rewarded, in those workplaces.
So it would be no surprise if tensions in legal workplaces become even more strident and eventually litigious as more and more incoming Millennials find themselves in cultures that harbor or ignore behaviors they consider unfair or offensive and look for redress.
What is it that makes us vulnerable to the mounting filing of sexual harassment suits? Low emotional intelligence plays a part. A failure to read emotional cues that clearly spell disinterest can lead those accused down what may seem to them an acceptable path. Low emotional empathy keeps them from appreciating the distress they are causing. And understanding emotions, which lawyers theoretically do better, is hampered by having the incorrect emotional data to start out with. Finally, deficits in managing emotions can prompt behavior that make the original sin even worse.
But make no mistake. Whatever the source of the behaviors, they can end up exacting financial and reputational costs that can be devastating to both individuals and organizations and will specifically adversely impact a firm’s or department’s desirability as a workplace and service provider among Millennial lawyers and clients.
There hasn’t been much said of the lawyers on both sides who crafted Weinstein’s employment agreement. The Boies firm evidently negotiated Weinstein’s 2015 contract, which states that he doesn’t violate his contract if he gets sued for any type of misconduct — including sexual harassment — as long as Weinstein pays off the accuser (even though he was known to have already had several such suits), and, after a number of those accusations, eventually pays a fine to the company. Then we’re all good. It’s all a matter of money.
The director/lawyer who negotiated on the company’s side says that, even though Weinstein wouldn’t let the board see his personnel file, they all assumed past payoffs had been for consensual relationships. Let’s hope they have good D&O insurance.
Clearly Boies knew details of Weinstein’s past behavior. Boies has admitted that he hired private detectives who targeted New York Times‘ reporters, evidently in an effort to undermine news coverage of the accusers’ claims. At the same time, Boies’ firm was representing the Times in various legal matters. Apart from the concerns raised about conflict of interest, what was Boies’ ethical obligation with respect to soliciting the suppression of what appeared to be a crime?
Then there are the lawyers who typically put non-disclosure provisions with respect to discrimination or harassment in upfront employment offers (as Ellen Pao had) or as part of the settlement, as Weinstein and other predators have procured. Aren’t we lawyers professionally obligated to advocate for our predatory clients by holding our noses and insisting on these provisions? Or are we being complicit in covering up what may well be criminal behavior?
Perhaps the way out of that dilemma is to make these provisions unenforceable as against public policy, as non-competes have become in many jurisdictions. Two New York State lawmakers recently introduced legislation to void any contract that includes a provision to silence workers about harassment or discrimination.
Let’s hope other states also address the situation.
And that legal organizations do some introspection on their own potential liability.