I Am Not Your “Sweetheart”
Sometimes sexist behavior that occurs in the courtroom is as slight as a male counterpart refusing to look at a female attorney when she speaks, or as overt as a male judge or lawyer calling a female colleague “honey,” “sweetheart,” or “dear.” I distinctly remember the day the latter happened to me while arguing a motion. Prior to appearing before the judge, opposing counsel asked me if I was my partner’s secretary. I brushed that off as an intimidation tactic, but was absolutely gob smacked when the same counsel called me “sweetheart” in open court. I expectantly looked at the judge, thinking he would, in some way, reprimand opposing counsel. To my dismay, the judge just rolled his eyes and proceeded with the matter as if nothing had happened.
The consequences for attorneys who undertake this despicable behavior have changed, thanks to recent revisions to the American Bar Association’s Model Rules of Professional Conduct (ABA Model Rules) which have been adopted by over a dozen states. These changes make sexist comments and behaviors professional misconduct. Specifically, in 2016, the ABA approved revisions to Model Rule 8.4 providing that a lawyer may not engage in conduct that the lawyer knows, or ought to know, amounts to harassment or discrimination on the basis of race, sex, religion, ethnicity, disability, sexual orientation, gender identity or socioeconomic status.
Linda Bray Chanow, Executive Director for the Center for Women in Law at the University of Texas, and driving force behind the revision, noted that while the entrance rate for women in law has increased over the years, there “continues to be widespread disrespect and harassment for women lawyers.” Susan B. Goldberg, director for Gender and Sexuality at Columbia Law School, noted that such disrespect and harassment can hurt a lawyers’ case. “When a lawyer is addressed in a fashion in open court – these kinds of remarks can affect the way a jury or others in the courtroom perceive the lawyer,” Goldberg said.
In response to ABA Model Rule 8.4, the State Bar of California’s Second Commission for the Revision of the Rules of Professional Conduct has proposed to add Rule 8.4.1 to California’s Rules, based upon existing Rule 2-400. Proposed Rule 8.4.1 expands Rule 2-400’s focus on discrimination in the context of employment and representation decisions to encompass harassment and discrimination against any person in the course of a representation. Proposed Rule 8.4.1 also recognizes a much wider range of “protected characteristics” than are recognized by Rule 2-400.
Unfortunately, California’s proposed Rule 8.4.1 has not received a resounding endorsement from the State Bar’s Board of Trustees. Board member Sean M. SeLegue expressed concern about, “. . . resource-allocation and institutional competence issues as well as a concern that enactment of the rule would create disappointment and disillusionment with complainants when the State Bar decides it is not the appropriate forum for a particular complaint of discrimination.”
The fate of proposed Rule 8.4.1 is now in the hands of the California Supreme Court. Until a decision is made, a female litigator’s primary recourse against inappropriate and sexist behavior in the courtroom may only be a terse, “I am not your sweetheart.”
Whitney Hodges wrote this for the Lawyers Club Bench Bar Committee, and works as a senior associate in the Land Use and Environmental group based in the San Diego office of Sheppard, Mullin, Richter and Hampton LLP.