The Colorado Supreme Court on Sept. 19 approved a rule change to The Colorado Rules of Professional Conduct to address sexual harassment following a public hearing on Sept. 18.
Rule 8.4(i), effective immediately, makes it professional misconduct for a lawyer in Colorado to “engage in conduct the lawyer knows or reasonably should know constitutes sexual harassment where the conduct occurs in connection with the lawyer’s professional activities.”
A comment clarifying the rule change defines sexual harassment as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that a reasonable person would perceive as unwelcome.” The comment also says “professional activities” aren’t limited to the scope of a lawyer-client relationship.
Three people, all attorneys, spoke at the hearing presided over by Justice Monica Márquez, who serves as liaison to the Rules of Professional Conduct Standing Committee.
First to speak was Dr. Maria-Vittoria Carminati of Carminati Law, who said she was there to “support the spirit of the proposed language regarding sexual harassment” but also asked the court to “consider whether more can be done.” She urged the court to consider the language of the American Bar Association’s Model Rule 8.4(g), adopted in August 2016, which covers a broader range of activity and categories.
The ABA rule states it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should 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.”
Carminati criticized the proposed language in the Colorado rule for defining sexual harassment as that which “a reasonable person would perceive as unwelcome.” She questioned why the rule doesn’t just say “sexual harassment is improper simply when the behavior is unwelcome.”
Next to speak was Kendra Beckwith, speaking on behalf of the Colorado Women’s Bar Association, who asked the court to adopt the amendment. Beckwith said that in a survey of 270 CWBA members, 30% had experienced sexual harassment in the courthouse, another 30% had faced it during pre-trial proceedings and 40% had suffered harassment at other professional events.
Beckwith, a member of the subcommittee that helped draft the proposed rule, shared comments from CWBA members about their experiences of harassment, including non-consensual kissing and inappropriate comments by opposing counsel and a case in which a magistrate was groped by an attorney in her courtroom.
Beckwith highlighted these stories because, while it all occurred within the legal profession, none of it occurred among colleagues or between employees and bosses, meaning “traditional sexual harassment law under Title VII would offer no recourse.”
Beckwith said Rule 8.4(i) strikes “the right balance of what can and should be regulated” and covers not just the attorney-client relationship but all conduct in a professional context, whether in the courtroom or at a networking event.
The rule also includes the strength and guidance of existing employment law, which would guide the rule’s application and enforcement, according to Beckwith. Finally, she said, the new rule makes a “strong statement that we as Colorado lawyers will not tolerate sexual harassment.”
Justice Boatright asked Beckwith whether, when drafting the rule, the subcommittee had considered the issues raised by Carminati about the “reasonable person” phrasing. Beckwith said the use of “reasonable” was meant to make the rule consistent with Title VII sexual harassment law and to allow sexual harassment to be addressed on a case-by-case basis.
The final speaker was Attorney Regulation Counsel Jessica Yates, speaking on behalf of her office, which is responsible for enforcing the Rules of Professional Conduct. Yates said that the office gets about 3,500 complaints about attorneys each year, and in 2018 only 58 cases resulted in public discipline, with most of the matters resolved in some other way, such as a private admonition or diversion programs.
“We really wouldn’t expect to see something dramatically different by adopting 8.4(i). We’d still be looking at a process by which we will only be taking the most serious conduct into formal proceedings,” Yates said.
Yates said the amendment addresses gaps in the existing rules of professional conduct, which directly address conduct within the attorney-client relationship, conduct that “directly, intentionally, and wrongfully harms others” and conduct that constitutes a criminal act.
But the existing rules failed to directly address sexual harassment, in which intent is often difficult to prove, outside the client-lawyer context, she said. The new rule would also send a much-needed signal to attorneys, clients and the public about harassment in the profession, according to Yates, echoing what she wrote in a letter to the court in May.
“[T]he failure of the rules to specifically address sexual harassment is a glaring void in an era in which any publicly-accountable institution needs to have policies for and a consistent record in confronting harassment,” Yates said in the letter.
Yates addressed objections by the First Amendment Lawyers Association, which said in public comments to the court that the rule is unconstitutional. In its letter, FALA said the language of Rule 8.4(i) “creates significant questions as to what [it] may prohibit” and said the rule could be wielded broadly against attorneys whose speech on topics of a sexual nature — even when writing articles or representing clients— could be deemed “unwelcome.”
Yates said the Office of Attorney Regulation Counsel routinely reviews complaints for constitutional attacks, including First Amendment attacks, and she didn’t expect the new rule to change that.
“We would always be looking at whether there is some sort of protected activity that we need to be aware of and make sure that we do not encroach on that activity,” Yates said. In a previous interview with Law Week, Yates said the decision to focus on sexual harassment, rather than both harassment and discrimination, was intended to avoid some of the criticisms directed at the ABA’s Model Rule 8.4(g).
That rule has come under fire by FALA, among others, on First Amendment grounds. In its public comments to the Colorado Supreme Court, FALA said that “while Rule 8.4(i) does not have all the constitutional problems of Rule 8.4(g), this Court should still refuse to adopt it.”