Lawyers (but really judges) in a #meToo world.

I was fortunate enough to be invited to speak last week at a half-day seminar that was called a “#meToo CLE” and was focused on legal and ethical issues for lawyers in the environment that now exists after #meToo went viral.

I was the only male speaker at the seminar and fully recognize that still might have been one too many male voices for the topic.  Nevertheless, it was an honor to participate all the same.  Sitting through the two hours of presentations before mine was a thought-provoking time as it helped to drive home many systemic problems still prevalent that become overwhelming to think about.

Some of my time spent talking through ethics issues for lawyers in a #meToo world focused on Tennessee’s rejection of a proposed RPC 8.4(g) and how that leaves us in a position where there is little, if anything, in our ethics rules to address toxic conduct by lawyers when representation of a client is not involved.

I spent some of the time talking about the fact that there is more, significantly more, built into our judicial ethics rules not only to stop judges from engaging in this kind of behavior but that also requires at least some form of what would, strictly speaking, be classifiable as judicial activism — doing what must be done to stop others from behaving in this fashion.

Specifically, we have adopted RJC 2.3 Bias, Prejudice, and Harassment – patterned after the ABA Model —  and it requires the following of judges in Tennessee:

(A)  A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B)  A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C)  A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Tenn. Sup. Ct. R. 10, RJC 2.3 (all emphasis added by me)

This obligation of judges not only to personally avoid engaging in harassment both on and off the bench but also to stop others within their control, including lawyers, from doing so has stayed on my mind after the seminar for two reasons.

The first is the recent news of the release of this working group report that was submitted to the Judicial Conference of the United States declaring, among other things, that federal judges “have a special responsibility to promote appropriate behavior and report instances of misconduct by others, including other judges.”  The working group report also recommended that existing codes of conduct need to be revised to make clear that retaliating against someone who reports misconduct should itself be treated as judicial misconduct and that the obligations of confidentiality that court employees have do not extend so far as to prevent them from reporting misconduct.

The second is that we’ve got some contested judicial elections going on in Tennessee and I’m very curious whether any candidates will make this topic into a campaign issue.  Candidates for elected judicial positions are often very constrained in what they can say about how they will go about their jobs because of the problems associated with staking out public positions on matters they will have to later adjudicate.  Judicial ethics rules are rife with restrictions on campaign speech,  such as rules prohibiting promises or pledges about how they would rule on a particular case or on a particular legal question that may come before them.

But, this issue, and particularly, what a candidate might plan to do in keeping with his or her ethical obligations once on the bench to police bad behavior and not permit court officers to engage in harassment would be something that might well move the needle with some voters and would not be the kind of statement about issues relating to cases that judges should shy away from in order to avoid having to recuse in the future.

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