American supreme court

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.”

The remark drew a rebuke and fine in January from a federal magistrate who declared that the lawyer had “endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.”

“A sexist remark,” said the judge, Paul S. Grewal of the Federal District Court in San Jose, Calif., “is not just a professional discourtesy, although that in itself is regrettable and all too common.”

Many female lawyers would agree. They say that even as more women graduate from law school and represent clients in courtrooms, it is not rare for them to be addressed as “honey” or “darling.” Sometimes they are subject to a grating remark, or an arm around the shoulder, they say.

“I got the pat on the head,” said Jenny Waters, chief executive of the National Association of Women Lawyers, referring to what she encountered while in private practice.


The group, which represents 5,200 women, has been backing an effort to add to the American Bar Association’s model rules of professional conduct an amendment to prohibit harassment and discrimination by lawyers in the course of practicing law. Bar associations in 23 states and the District of Columbia already have some kind of protections against harassment and discrimination by lawyers in the conduct of their profession, but the proposal would establish a standard nationwide.


The A.B.A. policy-making body is scheduled to vote on that amendment on Monday.


But critics of the proposal argue that a rule would inhibit lawyers from speaking freely on behalf of their clients and circumscribing the way they run their practice.

“It would change the attorney-client relationship and impair the ability to zealously represent clients,” said Kim Colby, director of the Center for Law and Religious Freedom at the Christian Legal Society, which opposes the amendment.

Such a change would also have a chilling effect on the ability of lawyers to engage in free speech, religious exercise and other First Amendment rights, Ms. Colby argued.

The few times when the amendment punishes misconduct are greatly outweighed by “numerous instances where the rule is wielded as a weapon against lawyers by disgruntled job applicants, rejected clients, opposing parties or opposing counsel,” the society wrote in a 16-page letter to the A.B.A.’s ethics committee.

Most businesses have rules against harassment and discrimination. Yet the legal profession as whole lacks a flat ban on such behavior.

“An ethical rule makes us accountable,” said Drucilla S. Ramey, a former executive director of the San Francisco Bar Association. “Lawyers are officers of the court. We’re supposed to set a standard of conduct and that’s a privilege.”


Supporters of the proposal say that while there is no way to track the frequency of such comments and actions, they happen often. Lawyers, they say, use such behavior as a tactic to fluster or intimidate opposing counsel.

Leslie Richards-Yellen, president of the National Association of Women Lawyers, described what she said had happened to a young African-American associate at a firm where she once practiced.

“The opposing counsel called her a racially insulting name, trying to throw sand in her face and get her off balance,” said Ms. Richards-Yellen, a partner at the law firm Hinshaw & Culbertson. “She called me trying to decide whether she should fight back or stay calm and just complete the job for the client — which is what she decided to do.”

Typically, women say, they ignore insults or sexist comments for fear of imperiling their careers or being labeled less than a team player.

“‘You either run with the nannies or you run with the wolves’ is the way one male partner at a San Francisco law firm described the choices to a pregnant associate,” said Ms. Ramey, who is also a former dean of the Golden Gate School of Law in San Francisco.

Ms. Ramey testified at a bar association public hearing in February in favor of the amendment, which would bar lawyers from harassing or discriminating “on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, marital status or socioeconomic status in conduct related to the practice of law.”

If the amendment is adopted, any punishment for such discrimination would be meted out by participating state bar associations and could range from fines to suspension from practicing law.

Opponents of the amendment argue that it could foster unfair punishments. Dozens of lawyers who filed a brief in opposition cited the cases of two Indiana lawyers who were disciplined under that state’s professional conduct rules, one for asking, without an ostensible reason, whether someone was gay, and another for describing himself with a racially derogatory term during a private telephone conversation with another lawyer’s secretary.

Like the Indiana bar association, those in 22 other states and the District of Columbia already have protections against harassment and discrimination by lawyers in the conduct of their profession.

The A.B.A.’s model rules, adopted in 1983 and meant for state bar associations to follow, contain guidance for enforcement. A number of women and minorities, however, say they are inadequate to combat bias, prejudice, harassment and discrimination.

Two years ago, the A.B.A. began looking into adding a stronger prohibition to eliminate incidents like Ms. Rifkin’s.

Rather than sweeping the episode under the rug, Ms. Rifkin, 37, decided to underscore what she saw as hostile treatment by asking Judge Grewal for sanctions to punish the opposing counsel, Peter Bertling, a lawyer in Santa Barbara, Calif.

In his order, Judge Grewal noted that Mr. Bertling’s comment served to “reflect and reinforce the male-dominated attitude of our profession.”

The judge pointed to a recent A.B.A.-sponsored study, “First Chairs at Trial: More Women Need Seats at the Table,” which concludes that stereotypical sexist remarks to female lawyers are “among the more overt signifiers of the discrimination, both stated and implicit, that contributes to their underrepresentation in the legal field.”

Only 18 percent of partners at top law firms are women, and women are underrepresented among trial lawyers in most types of cases, the report said.

In civil cases, “men are three times more likely than women to appear as lead counsel and to appear as trial attorneys,” the report said. In criminal law, “men are nearly four times more likely than women to appear as trial attorneys,” it found. Women were dominant — 66 percent — only as trial lawyers for government entities.

During her time in the courtroom, Ms. Rifkin has become “well accustomed” to inappropriate remarks, she said.

“People make comments every day on everything, from what women lawyers are wearing or whether they are smiling or can take a joke,” she said.

The fine of $250, which was donated to a group that promotes full participation by women in the legal system, “may not fully compensate” Ms. Rifkin for Mr. Bertling’s conduct, Judge Grewal said, but it “might deter it in the future.”

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.

“I went and reread the rules of professional responsibility,” Mr. Bertling said. “It’s helped me to stay focused and be conscious not to make that kind of comment.”

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