Established Guidance for Evolving Rules

Colorado looks for professional conduct guidance on harassment in well-known discipline case

Although the #MeToo movement seems to have created a dramatic new era in dealing with sexual harassment, the topic isn’t a new one for the Colorado Supreme Court’s Office of Attorney Regulation Counsel and the committee overseeing professional conduct rules. While other states grapple with the issue, a Colorado discipline case from the 1990s, People v. Lowery, may continue to provide solid guidance for addressing harassment.

In 1995, a hearing board found that attorney Philip Lowery had engaged in inappropriate sexual conduct with female employees at his law firm and suspended him. The rule he violated prohibited “conduct that adversely reflects on the lawyer’s fitness to practice law,” and although that exact rule is now defunct, Burns Figa & Will shareholder Alec Rothrock said the case law established by People v. Lowery is still useful and has put Colorado ahead of many other jurisdictions, and even the American Bar Association, in addressing that type of conduct.

“I think the Lowery case would be the basis for discipline in a ‘#MeToo’ situation,” he said. “It’s a matter of degree, and other factors such as when the alleged harassment occurred, whether it would rise to the level of a disciplinary offense.”

Colorado’s Professional Conduct Rule 8.4 contains subsets that have the power to address harassment, such as 8.4(g), which prohibits biased conduct, or 8.4(h), which addresses intentional and wrongful harm to others that affects an attorney’s fitness to practice law. Rothrock said he believes that today, Rule 8.4(h) would cover the misconduct found in People v. Lowery.

To read this story and other complete articles featured in the January 22, 2017 print edition of Law Week Colorado, copies are available for purchase online.