"A sexist remark is not just a professional discourtesy."

August 10, 2016 8:10 AM

"Mr. Bertling, 56, said in an interview that he had not heard what he considered sexist remarks in his decades of practice. But after the fine, he asked a lawyer in his office if she had. She showed him inappropriate comments in deposition transcripts, but said she did not seek penalties for them because, like many female lawyers, she thought doing so was futile." As of this Monday, after months of debate, that may no longer be the case: Goodbye to 'Honeys' in Court, by Vote of American Bar Association.

More on the ABA's Resolution 109, which amends Rule 8.4 of the ABA Model Rules of Professional Conduct: Discrimination and harassment will be legal ethics violations under ABA model rule

posted by amnesia and magnets (37 comments total)

The fact that "no lawyers signed up to speak against the revised rule" makes me feel hopeful that, at the very least, people who hold misogynist views are no longer comfortable voicing them in a professional environment because it, finally, stands a chance of reflecting on them poorly in a way that hits them where they hurt.
posted by griphus at 8:18 AM on August 10, 2016 [36 favorites]

To address objections by litigators who argued that the change could hinder vigorous representation of clients, the drafters added qualifiers. The amended ethics rule now bans the offensive conduct only if the lawyer knows or reasonably should know it is harassment or discrimination, and does not apply to “legitimate” legal advice or advocacy. That gives offenders some wiggle room to contend that they did not know their conduct or remarks were prohibited.

*sigh*
posted by indubitable at 8:18 AM on August 10, 2016 [14 favorites]

This is a really good and important step, but the NY Times article ("Goodbye to 'Honeys' in Court") overstates the immediate impact of the amendment:

The ethics rule now forbids comments or actions that single out someone on the basis of race, religion, sex, disability and other factors. Nearly two dozen state bars and the District of Columbia bar have similar rules. But there has been no national prohibition of such behavior

...and there still isn't. The ABA Model Rules are just that, model rules. They aren't the actual rules-in-force anywhere, although they are used as a template by every jurisdiction except California. Some jurisdictions adopt them wholesale and follow changes closely. Some add to or subtract from the rules, as the passage I quoted implies. Thus, action is still required by the ~26 state disciplinary authorities that don't have such a rule on the books yet.
posted by jedicus at 8:26 AM on August 10, 2016 [11 favorites]

"Mr. Bertling, 56, said in an interview that he had not heard what he considered sexist remarks in his decades of practice"

Oh, sweetie.
posted by Mayor West at 8:31 AM on August 10, 2016 [133 favorites]

I must have heard at least 100 different stories from my wife about sexist comments from judges and opposing counsel over the years. I'm quite sure that means there have been an order of magnitude or two more that don't even merit a mention. Early in her career before she had established a reputation for being tough and tenacious, I think these kinds of remarks would have driven some folks from trial practice. The honey/sweetie thing is extremely commonplace and probably the least offensive of the stuff I've heard from her. We still have a long way to go.
posted by Lame_username at 8:38 AM on August 10, 2016 [10 favorites]

To address objections by litigators who argued that the change could hinder vigorous representation of clients, the drafters added qualifiers.

I've never found that vigorous representation required me to call anyone sweetie, and I can't imagine a circumstance where that would be the case. Opposing counsel in my practice are largely women (maybe 75-80% of the time? Maybe more) and I find I can represent my clients while calling them "Ms. [SURNAME]" or "opposing counsel" or "counsel for the Defendant/Plaintiff/Government" in court.
posted by Bulgaroktonos at 8:49 AM on August 10, 2016 [11 favorites]

To address objections by litigators who argued that the change could hinder vigorous representation of clients

"But I need to be sexist to do my job" is one of the most fucking rage-inducing just I mean I'm biting my own knuckles right now aaarrgh
posted by billiebee at 8:53 AM on August 10, 2016 [68 favorites]

"Mr. Bertling, 56, said in an interview that he had not heard what he considered sexist remarks in his decades of practice"

Let me make that accurate:

Mr Bertling, 56, had not ever considered anything he heard sexist in his decades of practice.
posted by srboisvert at 8:53 AM on August 10, 2016 [51 favorites]

This commentary by Joe Patrice on Bertling's sexism is pretty good. I was braced for some mansplaining but it does get to something that hides in the craw of this issue, that the "game" has been designed by men and for men and, as such, women can never win. I also really, really liked this part:

It’s also where that whole “lean in” stuff turns into “getting hit by the pitch” because individual women are asked to get ahead by making the obstacles worse for the generation behind them by ignoring that there’s ever anything about the underlying rules themselves promoting this stuff.

Getting hit by the pitch.
posted by amanda at 9:06 AM on August 10, 2016 [41 favorites]

"But I need to be sexist to do my job" is one of the most fucking rage-inducing just I mean I'm biting my own knuckles right now aaarrgh

It's more offensive than that. The argument is that the obligation to provide "vigorous representation" obligates lawyers to use noxious strategies like abusing the opposing counsel or attacking the actions of a rape victim. This is something the legal profession needs to nip in the bud - or have it nipped for them.
posted by NoxAeternum at 9:10 AM on August 10, 2016 [14 favorites]

It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.

Wow. Slow clap. It really does work. It really does set the tone.

1. Ladies are beautiful. 2. When they are beautiful, we know that they are also frivolous. 3. Men are serious and should be listened to. 4. Even though we will give them the last word, because they are so beautiful, we won't give them the weight that other male words require.

I can see why (some) lawyers would be loathe to be sanctioned for this tactic. It's so good and it's free.
posted by amanda at 9:10 AM on August 10, 2016 [13 favorites]

There's an invisibility issue, too. I can't find a cite right now, but in the early days of Justice O'Connor's tenure, one attorney appearing before the Court said something like, "In conclusion, Chief Justice, gentlemen, I want to appeal to you..." And she said, "Would counsel care to appeal to me, too?"
posted by praemunire at 9:24 AM on August 10, 2016 [44 favorites]

Great. Now if they could only do something like this for the tech industry. With real sanctions.
posted by happyroach at 9:32 AM on August 10, 2016 [13 favorites]

You think I'm kidding, but no, seriously, that's actually what he said. Here's the audio.

Oyez.org has a pretty good combined audio/transcript thing going on for many cases.
posted by nom de poop at 9:37 AM on August 10, 2016 [1 favorite]

That gives offenders some wiggle room to contend that they did not know their conduct or remarks were prohibited.

At least it's a defense that can literally only be used once.
posted by hippybear at 9:50 AM on August 10, 2016 [1 favorite]

It's frustrating that this rule needs to exist. It's also frustrating that even when/if it's adopted into the Rules of all 50 states it will pretty much remain toothless except in the most egregious of cases (because

I do think it's interesting that the article chooses "honey" and "darling" as examples of sexist language, because depending on the speaker, those aren't really gendered terms. Like, I can totally see a female judge or senior attorney talking down to both male and female greenhorns with a "Oh honey", or a "sweetie, don't you see...?"

So those particular terms seem more ageist to me (ageism is covered in the new rule).

On the other hand, the actual examples cited: Raising your voice is unbecoming of a woman, my opponent is such a lovely lady, etc, etc are full on sexist (but I guess aren't as good for headlines).

In general though, the problem is more with disrespect and talking down to, which, obviously, female attorneys get more than male no matter their age/experience/skill.
posted by sparklemotion at 9:55 AM on August 10, 2016

In general though, the problem is more with disrespect and talking down to, which, obviously, female attorneys get more than male no matter their age/experience/skill.

I practice in an area where opposing counsel are almost entirely white men, and "How long have you been doing this?" or "Let me explain how this works" are sooo commonly directed at female attorneys. The most subtle sexism that have I've experienced is that male attorneys on my side are sometimes brought into the bro fold and can get more cooperation from opposing counsel than I can.
posted by Mavri at 9:59 AM on August 10, 2016 [17 favorites]

To address objections by litigators who argued that the change could hinder vigorous representation of clients, the drafters added qualifiers. The amended ethics rule now bans the offensive conduct only if the lawyer knows or reasonably should know it is harassment or discrimination, and does not apply to “legitimate” legal advice or advocacy. That gives offenders some wiggle room to contend that they did not know their conduct or remarks were prohibited.

Yup, lawyers gonna rules-lawyer.
posted by Dysk at 10:05 AM on August 10, 2016

That gives offenders some wiggle room to contend that they did not know their conduct or remarks were prohibited.

I would read the hell out of that transcript. "Your Honor, my client wasn't being acting tortiously, he's just a tin-eared misogynist who hasn't read an ABA professional conduct update in thirty years. You know, a real old school kinda guy."
posted by Mayor West at 10:34 AM on August 10, 2016 [7 favorites]

1. About damned time.
2. Now, let's talk about pay and partnership inequity.
posted by theora55 at 10:34 AM on August 10, 2016 [6 favorites]

Fortunately, the Morbotron (search engine for Futurama quotes) has gone live so I can post this totally appropriate-yet-not screenshot with ease.
posted by MCMikeNamara at 11:01 AM on August 10, 2016 [2 favorites]

Related: female attorneys are not only more likely to receive much harsher punishments than male attorneys for the exact same ethics violations, but are also more than twice as likely to be disbarred.

And in case anyone needed a reminder about how much representation matters:

One mitigating factor that leveled the playing field for women in disciplinary proceedings was when there were an almost equal number of female disciplinary panel members, the study found.

When 44 percent of the panelists were women, the likelihood for disbarment was the same across genders, according to the study. However, McDonnell noted that on average, just one in four disciplinary panelists were women.
posted by triggerfinger at 11:02 AM on August 10, 2016 [42 favorites]

And in case anyone needed a reminder about how much representation matters:

Holy shit.
posted by jedicus at 11:13 AM on August 10, 2016

"But I need to be sexist to do my job" is one of the most fucking rage-inducing

It's right up there with, "You can't investigate me for rape! People could think I might have raped someone!"
posted by The Underpants Monster at 12:07 PM on August 10, 2016 [3 favorites]

Like, I can totally see a female judge or senior attorney talking down to both male and female greenhorns with a "Oh honey", or a "sweetie, don't you see...?"

How about a male judge calling a male lawyer "honey" or "sweetie"

now I am imagining scalia calling roberts "sugartits"
posted by qxntpqbbbqxl at 12:17 PM on August 10, 2016 [10 favorites]

Scalia calling anyone anything these days is a giant stretch of even the best of imaginations.
posted by hippybear at 12:21 PM on August 10, 2016

the ghost of bigots past
posted by poffin boffin at 12:25 PM on August 10, 2016 [4 favorites]

the ghost of bigots present, the ghost of bigots yet to come.

This is some sort of Carol, but it's not one I would find very inspirational.
posted by hippybear at 12:26 PM on August 10, 2016

*"Carol" is not meant to be a slam against any individual, male or female, who is living or dead, who might share some variant on that name.
posted by hippybear at 12:27 PM on August 10, 2016 [1 favorite]

It's actually the exact horrible mirror opposite of this Carol.
posted by MCMikeNamara at 12:53 PM on August 10, 2016

I practice in an area where opposing counsel are almost entirely white men, and "How long have you been doing this?" or "Let me explain how this works" are sooo commonly directed at female attorneys.

Not a lawyer but this happened to me today and the world only still exists because I was unable to set it all on fire with my mind.
posted by winna at 12:58 PM on August 10, 2016 [20 favorites]

Above the Law:" “[D]on’t raise your voice at me. It’s not becoming of a woman or an attorney who is acting professionally under the rules of professional responsibility.”

New York Times: "When Lori Rifkin asked the opposing lawyer to stop interrupting her while she questioned a potential witness, he replied: “Don’t raise your voice at me. It’s not becoming of a woman.”

Call me picky, but I like my quotes uncut. Or if cut, the cut acknowledged by ellipses.
posted by IndigoJones at 4:27 PM on August 10, 2016 [2 favorites]

the Center for Law and Religious Freedom: the Center for Being A Colossal Bag of Mis-shapen Dicks, moar like.
posted by scruss at 6:24 PM on August 10, 2016

Frankly, and maybe it's because in the (low-salary) land of state criminal law, most attorneys on both sides are youngish, but it has been my experience that by far the worst offenders are judges. Who simply have one approach the bench and turn on the white noise/go off the record before demeaning them, mansplaining at them, or wondering aloud whether at them whether a rape could be prosecuted by a wife against her husband (true story). I guess it would be cool if this new ABA rule had some teeth against this kind of behavior, but I'm not going to hold my breath that the attorneys practicing before these kinds of judges will be in a hurry to report them to the Bar and risk the professional consequences over comments/behavior so easily disputed and explained away.
posted by likeatoaster at 8:23 PM on August 10, 2016 [3 favorites]

A host of gibbets passed.
posted by quinndexter at 8:37 PM on August 10, 2016

Personally, I have not seen this but I suspect it is rampant in state courts.
posted by Ironmouth at 1:17 PM on August 11, 2016

A Shitmas Carol
posted by rhizome at 3:33 PM on August 11, 2016 [1 favorite]