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.