Prohibited by Rule

Sexual Harassment as Attorney Misconduct

August / September 2020 By Joseph G. Michaels

This article addresses the recent adoption of Colorado Rule of Professional Conduct 8.4(i), which prohibits lawyers from knowingly engaging in conduct that constitutes sexual harassment in connection with professional activities. The article discusses the rule’s prohibitions and scope, addresses prior cases that considered sexual harassment as lawyer misconduct, and considers a lurking constitutional concern.

Lawyers, by virtue of their membership in the legal profession and as officers of the judicial system, have a special responsibility to pursue justice and to conduct themselves as representatives of the profession to the greater public.1 In this capacity, a lawyer’s conduct “should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs.”2 A lawyer should not “use the law’s procedures” to “harass or intimidate”; rather, lawyers should demonstrate respect for the legal system.3 As ambassadors to the community, lawyers also should promote the public’s “confidence in the rule of law[.]”4

In September 2019, the Colorado Supreme Court amended Rule 8.4 of the Colorado Rules of Professional Conduct (Colo. RPC or the Rules) to add an explicit prohibition against sexual harassment by lawyers.5 The prohibition, while far from controversial as a prophylactic—for who would argue that sexual harassment is either professional or appropriate?—still carries potential pitfalls. Nevertheless, new Rule 8.4(i) provides clear notice proscribing the behavior, as well as necessary clarification and consolidation of existing rules that had been interpreted, albeit as an imperfect patchwork, to address sexual harassment before the rule’s implementation.

The adoption of Rule 8.4(i) not only is consistent with the aspirational principles of being a lawyer but is also morally, ethically, and professionally required by them.6 This article discusses the new rule, reviews cases that had addressed sexual harassment before Rule 8.4(i) went into effect, gauges those cases’ continuing vitality, and concludes by addressing First Amendment concerns raised by the rule’s language.

The Addition of Rule 8.4(i)

The Colorado Supreme Court adopted Rule 8.4(i) in the midst of a nationwide reckoning with sexual harassment and misconduct by men in positions of authority exerting power over younger, predominantly female, subordinates who had minimal recourse. These men include disgraced movie mogul Harvey Weinstein,7 former Ninth Circuit Court of Appeals Judge Alex Kozinski,8 former Today Show host Matt Lauer,9 and former Alabama Supreme Court Chief Justice and twice-unsuccessful US Senate candidate Roy Moore,10 among many others.11

The public and social media outcry rapidly gained steam, culminating in the worldwide #MeToo movement. Indeed, one of the #MeToo movement’s biggest effects “has been to show Americans and people around the world how widespread sexual harassment, assault, and other misconduct really [is].”12 Even the United States Supreme Court long ago recognized the “persistent problem” that the “hostile environment [of] sexual harassment” creates.13

Against this backdrop, the Colorado Supreme Court considered and adopted Rule 8.4(i), a rule designed to prohibit sexual harassment in the legal profession.14 The new rule provides that it is “professional misconduct for a lawyer 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.”15

Rule 8.4(i) has two noteworthy components: (1) the language of the rule itself; and (2) its accompanying Comment [5A], which further defines “sexual harassment” and also addresses “professional activities”—in language that potentially both clarifies and muddies the scope of the rule.16 The comment first provides that “[s]exual harassment may include, but is not limited to, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that a reasonable person would perceive as unwelcome.”17 The comment thus focuses on the unwelcome nature of the behavior and, implicitly, the uneven power dynamic involved. Additionally, the comment defines “sexual harassment” in wording generally consistent with federal and state law.18

Next, Comment [5A] references the “substantive law of employment discrimination, including anti-harassment statutes, regulations, and case law” as providing helpful guidance, but not the exclusive bases, for enforcing new Rule 8.4(i). Doing so necessarily steers enforcement of the rule, as well as notice of its prohibitions, to established law originating from these authorities.19 In this respect, the comment effectively functions as a limiting construction.

Finally, the comment addresses “professional activities,” which, it explains, “are not limited to those that occur in a client-lawyer relationship.”20 This explanation clarifies that professional activities are broader than a limited business or client setting, but it does not identify the outer reaches of “professional activities.”21 The comment, however, appears to limit Rule 8.4(i)’s prohibition to lawyers’ actions in their capacity as a lawyer, exempting actions in the lawyer’s everyday private life.

Regardless, Rule 8.4(i) and Comment [5A] have to be read in the overall context of the Preamble and Scope to the Colo. RPC, which state that the Rules apply to “practicing lawyers even when they are acting in a nonprofessional capacity.”22 Rule 8.4(i), however, limits the prohibition on sexual harassment to a lawyer’s involvement in “professional activities.”23 And while Comment [5A] confirms that professional activities extend beyond those solely in the lawyer-client setting, it does not explain when a lawyer’s activity ceases to be a “professional activity.” Yet, nothing in Comment [5A] suggests that Rule 8.4(i) applies outside of the professional realm. In this respect, Rule 8.4(i) appears to impose a narrower prohibition than the Preamble and Scope would impose. This construction makes sense because if Rule 8.4(i) were to apply to a lawyer at all times, in all circumstances, it potentially could apply even when a lawyer acts as a private citizen in everyday life, which very likely would trigger constitutional implications. Clearly, Rule 8.4(i) targets sexual harassment in a narrower context: as matter of professional regulation and as related to the practice of law.

ABA Rule 8.4(g) as a Model?

In 2016, the American Bar Association approved ABA Model Rule 8.4(g), which prohibits “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.” Nevertheless, the ABA Rule “does not preclude legitimate advice or advocacy consistent with the [ABA] Rules.”24

Colorado did not—and still largely does not—have a rule analogous to ABA Model Rule 8.4(g); rather, Colorado’s Rule 8.4 contains Comment [3], which somewhat tracks the prohibitions in ABA Model Rule 8.4(g), albeit without expressly addressing “harassment or discrimination” as described in the ABA rule.25 Colo. RPC 8.4 Comment [3] provides:

A lawyer who, in the course of representing a client, knowingly manifests by word or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates [Colo. RPC 8.4](g) and also may violate [Colo. RPC 8.4](d). Legitimate advocacy respecting the foregoing factors does not violate paragraphs (d) or (g).26

In explicitly referencing Rules 8.4(d) and 8.4(g), Colorado’s Comment [3] indicates that the conduct described would be “prejudicial to the administration of justice,” per Rule 8.4(d), or would engender bias against a person for the delineated characteristics, per Rule 8.4(g).27 But neither those rules nor Comment [3] to Rule 8.4 squarely address sexual harassment in professional settings, let alone explicitly prohibit it. And Rule 8.4(g) expressly limits itself to conduct “in the representation of a client,”28 meaning it does not reach all “professional activities” in which a lawyer may appear as a representative of the profession.

In contrast, ABA Model Rule 8.4(g) prohibits “harassment or discrimination” as it occurs more broadly as “related to the practice of law.” This language is more specific to the question of “harassment” “on the basis of sex,” and it more widely casts its net over professional activities.29 Specifically, Comment [4] to ABA Model Rule 8.4 defines “conduct related to the practice of law” as including:

• representing clients;
• interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law;
• operating or managing a law firm or law practice; and
• participating in bar association, business, or social activities in connection with the practice of law.30

While the first three bullet points all generally fall within the “representation of a client,”31 the last point is instructive for Colo. RPC 8.4(i) and its prohibition on sexual harassment “in connection with the lawyer’s professional activities.” Indeed, participating in bar association, business, or social activities encompasses not just client representation, but also business development; employer-employee relationships within law firms and professional relationships between law firms; the professional law school setting, including professor-student, employer-student, and administrator-student interactions; social events where lawyers are present as part of their professional affiliation or in connection with their practice of law; lawyers’ roles as advisors, counselors, or lobbyists; and bar activities32—basically any time the lawyer is “wearing a lawyer hat.”33

In short, then, Colo. RPC 8.4(i) draws on ABA Model Rule 8.4(g), but it neither ratifies ABA Model Rule 8.4(g) nor covers the same ground. Rather, Colo. RPC 8.4(i) focuses exclusively on “sexual harassment,” while ABA Model Rule 8.4(g) contains much broader prohibitions on “harassment or discrimination” generally and as relevant to the enumerated characteristics. Additionally, Colo. RPC 8.4(i) explicitly references developed canons of law to help define “sexual harassment.”

Further, Colo. RPC 8.4(i) does not retread ground already directly covered by Colo. RPC 8.4(d) or 8.4(g). Rather, it encompasses conduct far wider than that involved in the “representation of a client.” Thus, before Rule 8.4(i) was adopted, while Colorado’s Rules arguably addressed sexual harassment by a lawyer against clients through Colo. RPC 1.8(j) and 8.4(a), “[s]exual harassment in non-client contexts c[ould] be difficult to prosecute.”34 Now, Rule 8.4(i) directly prohibits “sexual harassment,” rather than just conduct exhibiting bias, against any person. To these points, Attorney Regulation Counsel Jessica Yates testified at the public hearing that adopting Rule 8.4(i) conveys clear “notice” to lawyers that sexual harassment is prohibited.35 In contrast, Rules 8.4(d) and 8.4(g) were “awkward” avenues to pursue sexual harassment claims.36 Finally, and important for purposes of its constitutional analysis, Rule 8.4(i) carries a mens rea component: It applies if the lawyer “knows or reasonably should know” that the conduct constitutes sexual harassment.37

Pre-Rule 8.4(i) Cases Addressing Sexual Harassment

There has yet to be a disciplinary proceeding under Rule 8.4(i) resulting in a published decision. Still, Colorado has addressed sexual harassment both under the current Rules and under the predecessor Disciplinary Rules (DR).38

In Colorado’s leading disciplinary case on sexual harassment by a lawyer, People v. Lowery, the Colorado Supreme Court suspended a lawyer for a year and a day following complaints from three female victims who were subordinate employees of the male respondent’s law firm.39 Each victim alleged a pattern of “sexually provocative conduct,” “numerous lewd, sexually graphic remarks,” and unwanted touching.40 The respondent fired one victim who refused his advances; the other two quit.41

The Court compared the conduct to cases where lawyers had been disciplined for sexual misconduct with a client,42 and it reasoned that “a pattern of sexual misconduct with employees by a lawyer [was not] any less damaging to the legal profession than a lawyer’s sexual exploitation of a client.”43 The Court emphasized that the “power a lawyer holds over the sexually exploited employee derives from the lawyer’s license to practice law.”44 Finally, it determined that the misconduct was aggravated because the “victims depended on the respondent for employment [and thus] were especially vulnerable.”45

Lowery, however, was decided under the predecessor DRs, not under the current Colo. RPC. The difference is important. At issue in Lowery was DR 1-102(A)(6), which prohibited a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice, as well as CRCP 241.6(3), which relates to misconduct implicating honesty, justice, or morality.46

The closest analog to the framework of DR 1-102(A)(6) and CRCP 241.6(3) under the modern Rules is probably Rule 8.4(h), at least in terms of language similarity. Rule 8.4(h) states that it is professional misconduct to “engage in any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects on a lawyer’s fitness to practice law.”47 Rule 8.4(h) thus requires evidence that (1) the misconduct “directly, intentionally, and wrongfully harms others” and (2) the action also adversely reflects on the lawyer’s fitness as a representative of the profession. In other words, establishing a violation requires proof of both intent and actual harm.48 While not an insurmountable bar, it is a high one.

Rule 8.4(i) removes the actual (subjective) harm requirement and substitutes a reasonable (objective) person standard: what the lawyer “knows or reasonably should know constitutes sexual harassment[.]” The focus is not on what harm the victim actually experienced.49 Additionally, Rule 8.4(i) removes the need to show intent and replaces the mental state with the less-stringent “knows or reasonably should know” standard. This, too, lessens the proof burden. Consequently, while Rule 8.4(i) functionally codified the Lowery outcome, it also may have rendered Lowery’s reasoning obsolete.50

In People v. Rosen, the Hearing Board flatly stated that “[s]exual misconduct is prohibited by Colo. RPC 8.4(h).”51 But in doing so, the Rosen Hearing Board cited cases that relied on the same Disciplinary Rule, DR1-102(A)(6), that governed Lowery; it did not address the differences in Rule 8.4(h) or whether any other Rule was an appropriate vehicle for prohibiting the conduct.52 At issue in Rosen was an allegation that the respondent had repeatedly commented on a client’s appearance, touched or stroked her leg, and whispered seductively in her ear.53 Given the ill-fitting Rules and the conflicting evidence, the Hearing Board found no violation.54 This case is mostly unremarkable apart from its general suggestion that Rule 8.4(h) covers sexual misconduct and for illustrating that sexually harassing behavior is difficult to prove in the absence of a rule like Rule 8.4(i).

Finally, in People v. Meier, the Colorado Supreme Court publicly censured a lawyer for violating Rule 8.4(h) when he asked sexually inappropriate, offensive questions to a prospective, vulnerable client considering divorce.55 Those questions included asking when she and her husband last had intercourse, “what her breast size was, and whether she was ‘desirable’” to advising her to “keep her legs crossed so she would not have any more pesky kids.”56

The Hearing Board in Meier found the comments “inappropriate, harmful, offensive, harassing[,] and sexually abusive.”57 The Supreme Court agreed that any lawyer “asking a prospective and obviously vulnerable divorce client about the size of her breasts would ‘adversely reflect[] on the lawyer’s fitness to practice’” under Rule 8.4(h).58 The Court also acknowledged that DR1-102(A)(6) was the “predecessor” to Rule 8.4(h).59 But Meier is limited to the attorney-client setting, not “professional activities,” and it applied a less direct prohibition on sexual harassment than Rule 8.4(i).

In sum, prior cases generally used the broad language of Rule 8.4(h) (or its DR predecessor) and its prohibition on acts that “directly, intentionally, and wrongfully harms others” and “adversely reflect” on the lawyer’s fitness to practice to prohibit sexual harassment. But, as Attorney Regulation Counsel Yates explained, this is an awkward and ill-fitting mechanism to reach sexual harassment complaints, particularly those that do not involve clients.

First Amendment Concerns

There remains one lingering conundrum, that of Rule 8.4(i)’s constitutionality—specifically, whether it would withstand a First Amendment overbreadth challenge. While this article cannot resolve that question, the following discussion frames the issue for further consideration.

In a letter opposing the addition of Rule 8.4(i), the First Amendment Lawyers Association argued that the proposed rule would be an unconstitutional violation of the First Amendment.60 In essence, the commenter argued that the rule “punishes and restricts speech” by prohibiting sexual harassment because there is no limiting principle to guide application or provide notice when lawyers’ “use of language might run afoul of the rule.”61 This concern, however, does not withstand scrutiny for three reasons.

First, case law suggests that Rule 8.4(i) likely is sufficiently narrow to pass constitutional muster. For example, in People v. Graves, the Colorado Supreme Court addressed a First Amendment challenge to the public indecency statute.62 That statute prohibited “a lewd fondling or caress of the body of another person” in a “‘public place’ or where the conduct may reasonably be expected to be viewed by members of the public.”63

In construing the language at issue, the Court ruled that the statute did “not proscribe innocuous public displays of affection” or even fondling or caresses; rather, it proscribed lewd displays—that is, “overtly sexualized activity in public.”64 The Court noted that while “lewd” was not defined by statute, its common definition was readily understood by people of ordinary intelligence.65 Recognizing that “[s]exual conduct in public is not constitutionally protected expressive activity,” the Court concluded that the statute was not fatally overbroad, even if it potentially implicated some expressive conduct subject to First Amendment protections.66

Similarly, “sexual harassment” is a phrase capable of being understood by “people of ordinary intelligence”—a category of baseline intelligence that certainly must include practicing lawyers. Sexual harassment is commonly defined as “uninvited and unwelcome verbal or physical behavior of a sexual nature especially by a person in authority toward a subordinate.”67 Rule 8.4(i) does not prohibit “innocuous conduct”;68 it prohibits sexually harassing conduct a lawyer knows or reasonably should know is unwelcome. In no way is sexual harassment a constitutionally protected activity, and even if some protected First Amendment speech may fall within its scope, that does not automatically invalidate Rule 8.4(i) or its prohibition.69

In People v. Baer, the Supreme Court addressed a First Amendment challenge to the harassment-by-stalking statute.70 The Court held that because the statute required a communication that “further[ed], promote[d], or advance[d] a credible threat,” it did not violate the First Amendment’s free speech protection.71 In that respect, the statutory prohibition was sufficiently tailored to provide a limiting construction to exempt protected speech from its ambit.

On the other hand, in People in the Interest of R.C., the Colorado Court of Appeals held that a male juvenile’s Snapchat drawing of a penis on another male juvenile’s face amounted to free speech protected by the First Amendment, because the image would not incite imminent violence.72 Consequently, the juvenile’s adjudication for disorderly conduct could not stand, since the statute prohibited only “fighting words.”73

Like the statute at issue in Baer, Rule 8.4(i) does not appear to “sweep so comprehensively as to include within its proscriptions constitutionally protected speech.”74 Nor does it implicate the “fighting words” concern at issue in R.C. And, as discussed below, Rule 8.4(i)’s scienter requirement and accompanying Comment [5A] defining “sexual harassment” further narrow the behavior to which the rule’s prohibitions apply, consistent with the commonly understood meaning of “sexual harassment.” Regardless, “[e]very medium of expression presents special First Amendment problems which must be examined in the light of the circumstances which are interwoven with the speech in issue”75—that is, on a case-by-case basis. In this respect, a party litigating the issue can explain how the rule is “narrowly tailored,”76 even if there exists an opposing argument regarding the rule’s breadth.

Second, Rule 8.4(i) itself has limiting language, which prevents overbroad or limitless application. Specifically, the scienter requirement that the lawyer “knows or reasonably should know” that the conduct “constitutes sexual harassment” means the lawyer must generally be aware that the speech is not protected, but rather causes a specific type of harm. This promotes the idea that Rule 8.4(i) cannot reach constitutionally protected speech, such as the discussion of ideas or the expression of beliefs. But it also allows for a defense regarding what the lawyer knew or should have known.

Third, Comment [5A] further winnows out protected speech.77 It specifically requires that the sexually harassing conduct include behavior that “a reasonable person would perceive as unwelcome”78—that is, a communication that would “further, promote, or advance” the unwelcome sexual remarks.79 Or, as the Supreme Court recently recognized, “words matter. But so does context.”80

In short, these considerations suggest that Rule 8.4(i) is properly tailored to avoid offending the First Amendment, even if arguments to the contrary exist.81

Conclusion

Rule 8.4(i) redresses a gap in the Rules by directly and expressly prohibiting sexual harassment in the practice of law. The rule provides clear notice and largely codifies prior cases that had considered sexually harassing behavior. Rule 8.4(i) also reflects a societal and legal trend toward strengthening prohibitions against sexually inappropriate behavior, particularly in the workplace. While Rule 8.4(i) may be susceptible to First Amendment objections, the rule’s reference to established regulations and jurisprudence, as well as its narrowly tailored language, mitigate this concern. Of course, only time will tell whether these factors ensure the rule’s constitutionality.

---

Explore This Issue

Mentoring through Crisis

Mentoring Matters

By J. Ryann Peyton

The Remote Courtroom

Technology in the Law Practice

By Eric Johnson

Uncovering Hidden Government Documents

Legal Research Corner

By Andrea L. Hamilton

Related Topics

Notes