While there is an unfortunate and very long-standing history of female litigators and other female legal professionals facing discrimination in the courtroom, there is a possibility for change. Here’s what you can do to help facilitate that:
Know How to Submit a Complaint
Here are some suggestions for what female attorneys can specifically do when they are faced with a sexist situation in the courtroom:
- Go on the record. “It’s very important that a lawyer offended by ongoing behavior goes on the record (someone is always in the courtroom transcribing notes from the day) and states that the behavior she is experiencing is negatively impacting the client’s representation, unduly influencing the jury (if jury is present), and that the judicial process is being impeded by this offensive behavior by the judge or counsel,” suggests Wendi S. Lazar, a partner at an employment law firm in New York City who has served as commissioner of the American Bar Association Commission on Women in the Profession
- Ask for a meeting. “If the attorney is not ready to go on the record, she can ask for a meeting with the judge and say something like the following to either the judge or opposing counsel: ‘Maybe you don’t mean to be offensive, but it’s been very difficult to be belittled and marginalized in front of my client. I don’t believe that’s your intention, but I need to bring it to your attention, because if it doesn’t stop, I will bring an ethics complaint against you.'” suggest Lazar.
- Get smart. “Find out what the ethics rules are in the state in which the lawyer is practicing,” says Lazar. “Attorneys can and should call their appellate division to get connected with experts who can explain what constitutes an ethics violation.”
Learn the New Rules
The American Bar Association (ABA) is certainly committed to keeping the conversation front and center. Zero Tolerance: Best Practices for Combating Sex-Based Harassment in the Legal Profession is a comprehensive update to the ABA Commission on Women in the Profession’s previous sexual harassment material.
According to the ABA, the primary objective of this updated manual is to provide tools to legal organizations and victims of harassment and bullying. The new edition was already in the works before the #MeToo movement and, according to Lazar, its editor-in-chief, it can be considered a bookend to the ABA’s professional conduct rule for lawyers that prohibits attorneys from engaging in “harmful,” “derogatory,” or “demeaning” speech in any activity “related to the practice of law.”
“Many constituencies had been pushing the ABA to rewrite the model rule to include all forms of discrimination in conduct related to the practice of law,” says Lazar. “We knew if we didn’t get this passed across the board and at least establish a disciplinary rule for lawyers engaging in conduct that is harassment or discriminatory, we knew we wouldn’t have an impact on sexism in the courtroom.”
The current guidebook, with a preface by Anita Hill, provides “much more specific” policy advice this time around. For example, the guide advises firms to develop policies with very clear definitions of sexual harassment that really define certain behaviors, which could include making comments about a woman’s appearance.
“No one ever said the way Anita Hill was treated was unacceptable,” adds Lazar. “Instead, it was agreed that ‘it happens’ and ‘it’s too bad.’ Now we’re holding lawyers accountable for misconduct. They are beginning to recognize the implications of bad behavior. It’s no longer something to laugh off. There’s an actual penalty.”
Seek Out Other Resources
Through ongoing educational efforts, podcasts, and online toolkits, the ABA is focused on helping people not only understand that sexual harassment in the legal industry is a significant issue, but what needs to be done to stop it from happening. Lazar encourages attorneys to leverage the National Organization of Bar Counsel (NOBC), a non-profit organization of legal professionals whose members enforce ethics rules that regulate the professional conduct of lawyers who practice law in the United States and other countries around the world.
Lawyers Theresa Hatch and Courtney Rowley also launched the online community, Trial by Woman and wrote a book by the same name. Both are excellent resources for both men and women looking to make a change in the industry. “Most of the purchases and feedback on our book have been from men, which for us, means there is a whole lot of hope out there for real, lasting change,” they say.
Keep Talking About It
After her article on sexism in the courtroom appeared in The Atlantic, a number of male law students emailed Lara Bazelon, author and professor at the University of San Francisco School of Law, to thank her for her candor about what it’s like to be a female trial attorney. They pledged to serve as allies and help work towards solutions.
Judge Ashleigh Parker Dunston had a similar experience following the publication of her blog post, Sexism: The Elephant in the Courtroom. Several of Dunston’s male colleagues reached out and thanked her for raising awareness around a critical issue. Dunston believes that “change will be forthcoming if we continue to keep the discussion alive.” She adds, “People need to say something if they see something. If you see a woman experiencing sexism or sexual harassment then you should address the conduct, including inappropriate comments that happen outside of a woman’s presence.”
ABA President Hilarie Bass, who has “made it a priority in her tenure to address the gender imbalances that still plague the legal industry” agrees and thinks such a shift in thinking is already taking place. As she told Bloomberg Law, “For many years, the focus was on, ‘Is this really a problem?” Bass believes that thinking among lawyers has evolved to not only recognizing that sex-based harassment is an issue in the profession, but also to focusing on “What can I do to make sure everyone knows this is really unacceptable?”
Focus on What’s Most Important
For women currently in the trenches, Bazelon offers hope as a way of staying the course. “As a woman, it’s very important to instill resiliency in yourself,” she says. “And, it’s what I tell my female students—keep your eye on the prize and be the best advocate for your client. But I also tell them that in doing so, that shouldn’t detract from their professional goals. As women, we need to first believe we are good lawyers and second recognize, that there is a lot of noise and pollution in our midst. It’s critical that we do not let that diminish our belief in ourselves and/or distract us from the primary objective of serving as the best advocate for our clients.”
Kristin Johnson is an executive and corporate communications professional, and founder of KSJ Communications, a communications and public relations firm. She consults with a diverse roster of clients spanning the technology, professional services, financial services, public sector, consumer, and healthcare industries. In addition to Rocket Matter, Johnson writes for various other publications as well.