Last month the Colorado Supreme Court adopted the proposed amendment to Rule 8.4 of the Colorado Rules of Professional Conduct, which added a new subsection (i), along with a new comment, to specifically address sexual harassment that occurs in connection with a lawyer’s professional activities.
Before adopting the amendment, the Court accepted comments from lawyers and the general public and invited comments to be heard at a public hearing on the Rule. The Court heard from three speakers: Dr. Maria-Vittoria “Giugi” Carminati, Kendra Beckwith, and Jessica Yates.
Dr. Carminati, a women’s advocate, attorney, and activist, spoke first. While noting that she agreed with the spirit of the proposed amendment, she urged the court to consider whether “more can be done” and cautioned that unless the paradigm around sexual harassment is shifted, “we are merely rearranging deck chairs on the Titanic.” To illustrate, Dr. Carminati referred to a recent survey of 7,000 individuals, both lawyers and non-lawyers working in the legal profession, that was conducted by the International Bar Association. Of those surveyed, she noted, the report indicated that 36.6% of women had been subjected to sexual harassment. But the numbers are likely much higher, considering that 75% of workplace sexual harassment incidents are never reported, according to the Equal Employment Opportunity Commission (EEOC). And, according to the EEOC, two-thirds of people who file an EEOC charge lose their jobs, and 73% of people who report sexual harassment see no benefit as a result.
From Dr. Carminati’s perspective, the Model Rule of Professional Conduct 8.4, which the American Bar Association amended in 2016, is superior to Colorado’s Rule in that it understands sexual harassment to extend to more than just conduct and more than conduct that is explicitly sexual. Additionally, the amendment to the Model Rule made three key changes: (1) a knowledge component was added by prohibiting conduct that a lawyer “knows or reasonably should know” is harassment or discrimination; (2) the list of protected classes was expanded to include ethnicity, gender identity, and marital status; and (3) the Rule’s focus was broadened to apply to lawyers’ “conduct related to the practice of law,” rather than the original more narrow focus on conduct related to the “administration of justice.”
But Dr. Carminati took aim at the use of the term “reasonable,” which is employed to modify “person” in both Model Rule 8.4 and Colorado’s Rule 8.4. In her view, what a reasonable person would perceive as unwelcome conduct is problematic for several reasons: Society still perceives women as untrustworthy with respect to their own experiences; the reasonable person standard would open the door to troubling questions directed toward victims, such as, “What were you wearing?”, “Did you have a drink?”, “Did you flirt?”; and the “reasonable person” language focuses on the intentions of the violator rather than the violation itself. She urged the Court to instead adopt a more expansive version of the Rule that would encompass a broader range of harassment and discrimination—to extend to actions beyond purely sexual conduct.
Ms. Beckwith, a Partner at Messner Reeves, who appeared on behalf of the Colorado Women’s Bar Association (CWBA), was a member of the subcommittee that helped draft the original form of the proposed Rule. Ms. Beckwith passionately requested that the Court adopt the proposed Rule. She spoke about her surprise in hearing about how familiar so many CWBA members were with sexual harassment in the legal profession.
In anticipation of the hearing, the subcommittee surveyed CWBA members. Ms. Beckwith shared some disturbing findings. Of the approximately 270 members who responded to the survey, 54% experienced sexual harassment at their firm or state legal office, 30% experienced sexual harassment in the courthouse, 30% experienced sexual harassment during pretrial proceedings, and 50% experienced sexual harassment by a lawyer while engaged in other professional events. She shared some particularly alarming examples of members’ personal experiences.
Ms. Beckwith went on to advocate for the Rule’s adoption. She contended that Rule 8.4(i) was the “right rule” for the following reasons: Rule 8.4(i) “strikes the right balance of what can and should be regulated”; it includes the “strength and guidance of existing employment law”; and it “maintains integrity of the legal profession.” She concluded by asking the Court to close the whole that presently exists in how we define attorney misconduct by adopting the proposed Rule.
The final speaker, Ms. Yates, appeared on behalf of the Office of Attorney Regulation Counsel (OARC). She took the perspective of her office, which is to enforce the Rules of Professional Misconduct. Noting that only the most serious misconduct results in formal proceedings, she did not think that adopting Rule 8.4(i) would lead to dramatically different results. Under Rule 8.4 (as it read at the time of the hearing), she testified that it is challenging to prove sexual harassment because subsections (g) and (h) require that a lawyer’s conduct “directly, intentionally, and wrongfully” harm others for it to be considered in violation of the Rule. She also noted that subsection (d), which refers to conduct that is “prejudicial to the administration of justice,” presents an additional challenge concerning sexual harassment in countless scenarios.
From Ms. Yates’s view, Rule 8.4(i) embodies the standards that we expect to see in lawyers. First, because the Rule is not limited to the attorney-client relationship, she submitted that it appropriately encompasses conduct that occurs in the routine interactions between lawyers and court staff, not only in proceedings, but also in the workplace, in law schools, in clinical settings, and in bar activities. Second, the Rule reduces ambiguity of what constitutes misconduct by providing notice to attorneys. And third, Ms. Yates recognized that the mens rea element of Rule 8.4(i) is in line with sexual harassment standards in other states, EEOC guidance, and existing caselaw.
Ms. Yates then attempted to allay concerns regarding First Amendment protections. Recognizing that OARC routinely considers constitutional protections when reviewing cases, she maintained that Rule 8.4(i) would be perceived no differently. In closing, Ms. Yates stated that she would expect that OARC, in deciding whether to move forward with a sexual harassment complaint, would look at “the pattern of conduct, the seriousness of the conduct, the lawyer’s level of intent, and the effect on the victims.”
Ultimately, the Court approved the proposed amendment and adopted Rule 8.4(i) and the respective comment. This would not have been possible without the tremendous work of the CWBA subcommittee members that helped draft Rule 8.4(i) and the powerful testimony of Dr. Carminati, Ms. Beckwith, and Ms. Yates. The hearing can be viewed in its entirety on the Court’s website.
Nicole Jones is currently an Appellate Law Clerk for the Honorable Carlos A. Samour, Jr., at the Colorado Supreme Court. She is the Editor of The 1891’s “Tales from the Trenches” column and a member of the Colorado Women’s Bar Association Publications Committee. Nicole also serves as the Assistant Program Chair for the Thompson G. Marsh American Inn of Court, co-chair of the Denver Bar Association’s Access to Justice Committee’s Pro Bono Week, and as a member of the Colorado Judicial Institute. Any views or opinions reflected in this publication do not reflect the position of the Colorado Supreme Court or the Colorado Judicial Department.