An amendment to Rule 8.4(g) to the ABA Model Rules of Professional Conduct, first circulated in December 2015 and then adopted on August 3, 2016, prohibits lawyers while practicing law from engaging in conduct they “know or reasonably should know” constitutes harassment or discrimination based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status,” because that harassment and discrimination “undermines confidence in the legal profession and our legal system.”
What is clear from the comments to this amendment is that it is intended to have wide application in the legal profession, including in the operation and management of law firms and law practices.
This amended Rule alone could have a significant and broad impact on the legal profession’s liability, since many legal workplaces have cultures conducive to harassment and also suffer from chronic under-representation and under-promotion of women and minorities. While violation of the Rules does not necessarily indicate liability, they are routinely cited in disciplinary actions and lawsuits, and their violation may be “evidence of breach of the applicable standard of conduct,” as set forth in Section 20 of the Preamble of the ABA Model Rules of Professional Conduct, as amended.
Certainly lawyers have already proven themselves vulnerable to the explosion of sexual harassment suits. These lawsuits exact financial and reputational costs that can be devastating to both individuals and organizations. They also jeopardize future growth by adversely impacting a firm’s or department’s desirability as a workplace and service provider, particularly among Millennials, who are highly sensitized to even micro-aggressions.
Legal workplaces have been subject to various types of discrimination claims as well, and the math often looks pretty convincing. For example, while for more than three decades half of all law school graduates have been female, and over-represented in high class standing, they make up less than 20% of partners (and less than 10% of equity partners) at most law firms and less than 20% of senior legal officers at most corporations. While there are arguments that an ethics rule may not make much difference in these stats, it isn’t surprising that a rule against discrimination is being demanded.
The conduct that engenders these types of lawsuits often arises because of low emotional intelligence — a failure to read one’s own and others’ emotional cues, to empathize with and understand those emotions and/or to manage them appropriately. Studies undertaken to raise ethical behavior of doctors and nurses in the healthcare setting concluded that, “[o]verall emotional intelligence of hospital employees had a signiﬁcant impact on their ethical behavior,” and that “higher EQ scores” — specifically the ability to regulate one’s emotions — “predict higher performance in ethics.”
Emotional intelligence reduces risks of liability in several ways: the emotionally intelligent can more accurately assess the risks involved, can better understand which ethical standards are appropriate to the situation, and they can recognize and deal more effectively with the emotional fallout from ethical choices they make. Empathy in particular gives us a decided edge in making ethical decisions — people simply act more ethically when they are able to put themselves in someone else’s shoes.
Making sure our lawyers are emotionally intelligent is the primary bulwark legal workplaces can put in place in order to reduce harassment, discrimination and other ethical lapses and their associated costs and damage.
Muir’s book entitled The Emotional Intelligence Edge for 21st Century Lawyers, due out from the ABA this summer, reviews the advantages of an emotionally intelligent practice, in ethics and other areas, shows how to determine your individual emotional intelligence and gives steps for raising both individual and workplace EI to help avoid liability.