Let’s take a look at Professional Rules of Conduct with respect to discrimination and harassment with an eye on emotional intelligence. First, a short historical review of relevant rules is in order.
On February 5, 2018, Resolution 302 was adopted unanimously by the American Bar Association expanding existing provisions in the Model Rules of Professional Conduct, some of which dated back to 1992, in order to “prohibit, prevent, and promptly redress” harassment and retaliation. Those new rules prohibited harassment of or retaliation against certain expanded protected classes by anyone (including third parties) connected with legal work, whether the conduct occurred in legal workplaces or elsewhere. Provisions included requirements, among others, of at least one confidential anonymous reporting method (such as a hotline); prompt, fair investigations of all complaints, with a written resolution to complainant; compensatory and corrective actions, including disciplinary measures; disclosure made to the highest level of management of any settlement amount paid; and regular and effective training programs.
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 misconduct to include harassment and discrimination and lawyers’ failure to report any such misconduct. Now Rule 8.4 (g) 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.”
Only Alabama, New York and North Carolina have adopted a version of the current Model Rules 8.3 and 8.4 (g). New York adopted updated misconduct rules on June 10, 2022 which significantly tighten much older lax language and differ in some respects, some significantly, from the Models. It removes the old requirement to first exhaust remedies with respect to “unlawful discrimination.” More importantly, it newly prohibits “harassment, whether or not unlawful,” and defines harassment as including “physical contact, verbal conduct, and/or nonverbal conduct” directed at specific individuals which is derogatory or demeaning. The Model Rules contain no definition. New York’s new rules also expand the prohibition of the suspect conduct from “in the course of representing a client” to include when interacting with witnesses, coworkers, court personnel, lawyers and others, and in managing a law practice. Although not as expansive in some respects as the Model Rules, these New York rules are on the country’s leading edge.
Even though no jurisdictions have adopted these Model Rules in totality, the ABA is the “national voice of the legal profession,” and their rules may operate as a standard of the profession similarly to how American Medical Association guidelines have been used in malpractice cases. Thus, legal practices that don’t meet the Model Rules’ minimum requirements, even though compliant with state requirements, may still be vulnerable in harassment lawsuits, particularly under tort causes of action.
The issue around emotional intelligence lies in the new New York Rules of Conduct definition of harassment. The prohibited conduct is that which the lawyer knows or reasonably should know is discrimination or harassment, as defined to include verbal and nonverbal conduct.
Repeated studies of lawyers confirm that the EI skill they are most deficient in, a deficiency that is widespread in the profession, is recognizing emotional cues–their own and others’. Those cues are both verbal and non-verbal, including facial expressions, body language, intonation and pace.
There are numerous examples of lawyers, male and female, who have misgauged both how their verbal and non-verbal behavior comes off and the reaction they are getting to that conduct. They have misread the cues both being sent and being sent back. So rather than understanding when there is disinterest, objection or even disgust at their conduct, they may misread that reaction as “playing hard to get,” conspiratorial teasing, or even flirting.
Make no mistake: there is absolutely no excuse for indefensible behavior. But it is likely that in some, if not many, cases, the “intent” to harass, although not an explicit requirement in the definition of harassment, may not be present where the people involved cannot read social signs. Nor can we honestly revert to the “reasonable lawyer” standard since lawyers in general are not generally “reasonable” on this score. There’s also a question as to how effective it is to charge lawyers with reporting their colleagues’ misconduct to superiors (as is in the ABA Model Rules) who may also have limited ability to read cues.
Do we forgive and forget? Not at all. What this aspect of lawyer personalities highlights in just this one arena of law is the need, indeed the necessity, of hiring, training and promoting lawyers who are emotionally intelligent in order to raise the level of conduct and lower the risks of disciplinary action and liability coming out of our workplaces.