Harassment, Sex, Discipline

By William Wernz posted 12-01-2017 13:08


This blog is a slightly expanded version of an article first published in Minnesota Lawyer, November 17, 2017.  The expansion is based in part on documents filed in the Minnesota Supreme Court in 1989, relating to the petition to adopt Rule 8.4(g), relating to harassment.  I thank Charles Lundberg for providing these documents.  The other expansion is based on my memory of the procedural history of In re Peters, 428 N.W. 2d 375 (Minn. 1988).  That history was too technical and lengthy, and depended too much on memory, for inclusion in the original article. 

Sexual harassment is big news these days, especially in workplaces such as the entertainment industry, the media, and politics.  What about the workplaces of Minnesota lawyers?  There are foundational cases and recent ones.

In the late 1980s, two lawyer discipline cases for sexual harassment in the workplace were highly publicized and groundbreaking.  Ramsey County Judge Alberto Miera was suspended from the bench, and William Mitchell’s dean, Geoffrey Peters, was publicly reprimanded. 

Judge Miera harassed Johnson, his male court reporter.  In one incident, “Judge Miera kissed Johnson on the lips in Miera's court chambers without Johnson's consent.”  On another occasion, Judge Miera invited Johnson to Miera’s apartment.  Judge Miera “lay down next to Johnson, and touched Johnson's back against Johnson's wishes.  Judge Miera later told Johnson that someday the two of them would have sexual relations.”  The Court explained the need for discipline, “Both the judicial office and the unique relationship between judge and reporter make this employee particularly vulnerable to abuse of power.  It is disingenuous to assert Johnson could simply say ‘no.’  In fact, the record shows he did just that, to no avail.”  The Court also disciplined Miera as a lawyer.  In re Miera, 426 N.W.2d 850 (Minn. 1988). 

Geoffrey Peters sexually harassed several WMCL employees and students. Peters “engaged in repeated unwelcome sexual touchings and verbal communications of a sexual nature against the four employees.”   One student-employee explained why she did not complain sooner.  “I felt that there would be strong repercussions that could potentially harm, disgrace or end my career.  I was just a first-year student * * * and Dean Peters had all the power. * * * I had seen what the administration's reaction was when there were people who went to them with problems and it was generally retaliation for raising any problems, and I didn't want to become part of that. * * *”  Another student feared that a complaint against Peters would be “professional suicide.”  The Court noted that the student-employees were, “singularly vulnerable to the dean's abuse of power.”  The Court also noted that employment-related harassment was deserving of discipline because it violated the law.   In re Peters, 428 N.W.2d 375 (Minn. 1988).  (A postscript to this article recounts my memory of the case’s procedural history.)

A year after the Miera and Peters cases, Minnesota became one of the first states to adopt a rule against harassment.   Upon a petition drafted by the Lawyers Board and MSBA, the Court adopted Rule 8.4(g), “It is professional misconduct for a lawyer to: * * *  (g) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, status with regard to public assistance, ethnicity, or marital status in connection with a lawyer’s professional activities.”   Although most rules apply only when a lawyer is representing a client, Rule 8.4(g) applies in connection with all “a lawyer’s professional activities.” This broader language was chosen – presciently - to ensure the rule’s application in future cases like Miera and Peters. 

Documents in the file of the 1989 petition to adopt Rule 8.4(g) show a significant controversy.  The MSBA House of Delegates apparently deleted from the proposal made by an MSBA committee, and supported by the Lawyers Board and Director, the proposed limitation “in connection with a lawyer’s professional activities.”  The MSBA House did not explain its proposed deletion.  One lawyer filed her own comment stating that adopting the rule with the “professional activities” limitation would be “sending the message that harassment is permissible, just do it in private.”  At the other end of the spectrum, a former Director, Michael J. Hoover, opposed adoption of the harassment rule, even with the “professional activities” limitation.  The Court took the middle way, adopting the rule against harassment, but making it apply only in connection with professional activities.

The workplace and professional activities for lawyers includes the courtroom.  Minnesota judges and lawyers have been disciplined for sexual harassment in litigation settings, again beginning about thirty years ago.

Ramsey County District Court Judge Kirby called female attorneys “lawyerette” and “attorney generalette.”  Female attorneys were “justifiably annoyed and disturbed.”  The Court’s referee found the conduct improper but recommended no discipline for these offenses, because Kirby had apologized and had suffered adverse publicity.  In issuing a public reprimand, the Court explained, “We are mindful of Plutarch’s wise observation:  ‘Tho’ boys thro’ stones at frogs in sport, the frogs do not die in sport, but in earnest.’”  In re Kirby, 354 N.W.2d 410 (Minn. 1984).   (I would add that, not only were actual stones thrown, they were thrown in a courtroom and by a judge, not a boy.)

After Miera and Kirby, the Court amended the Code of Judicial Conduct to require judges both to avoid harassment and also to “require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, against parties, witnesses, lawyers, or others . . ..”  Rule 2.3.

Most litigation-related lawyer disciplines for harassment involve gender-related slurs and epithets.  One lawyer was publicly reprimanded for stating to opposing counsel, in front of others during a pre-trial proceeding, that she was a “f***ing c***” (called “a derogatory expression” in the order) and she should “shut up.”  In re Starr, 577 N.W.2d 210 (Minn. 1997).  Other lawyers have been privately admonished for less extreme derogatory expressions, such as “stupid bitch” and “the slut of Pleasantville.”

One private discipline was based on the lawyer gratuitously asking, in cross-examining an expert witness in a family law matter, “Are you gay?”  In another case, a public discipline was based on misconduct including unwanted physical contact of a sexual nature with an applicant for law office employment. In re Ward, 726 N.W.2d 497 (Minn. 2007).

Several rules are closely related to the rule prohibiting harassment.  Rule 4.4(a) provides, “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person,. . ..”  Rule 8.4(h) prohibits illegal discriminatory conduct, listing several factors relevant to whether the conduct warrants discipline.  Rule 8.4(d) prohibits “conduct prejudicial to the administration of justice.”  Rule 1.8(j) prohibits most sexual relationships with clients.

Although Minnesota was a pioneer in disciplining harassment, full recognition of harassment and discrimination problems has required, and may still require, some evolution, even in Minnesota.  Three examples illustrate the point.

First, the Supreme Court dismissed a charge against Judge Miera in which he touched and put coins in the breast pocket of a female court employee’s shirt.  The Court explained that the contact was isolated, there was no supervisory relationship, and the conduct was “not so patently offensive that, standing alone,” that it rose “to the level of judicial misconduct.”  The level of perceived patent offensiveness may well have changed since 1989.

Second, in 1983, a Family Court referee explained a property award, “I don’t think a Mercedes is a car a woman should own, frankly.”  The Board on Judicial Standards apparently did not impose any discipline, but instead suggested that the referee “be more careful” in the future.  Some discipline might well be expected now.

Third, Chief Justice Popovich’s concurring opinion in Peters stated, “Claims that Peters put his arm around a woman or leaned against her while the two reviewed materials are insubstantial. Not every touch is sexual, and incidents like these are far too ambiguous to form a basis for discipline.  Such conduct is commonplace, perhaps inevitable, in working relationships.”  In 2017, one supposes that few would accept the notions that a male supervisor leaning against a female subordinate in the workplace is “insubstantial,”  “ambiguous,” “commonplace” and “perhaps inevitable.”

In 2016 - nearly thirty years after Minnesota adopted its Rule 8.4(g) - the ABA adopted Model Rule 8.4(g).  The Model Rule’s disclaimers are its most important difference from the Minnesota rule:  This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.  This paragraph does not preclude legitimate advice or advocacy consistent with these rules.”  The meaning of the first sentence is far from clear.

In Minnesota, Rule 8.4(g) continues to be applied.  A defense lawyer was suspended for misconduct including harassing a prosecutor with references to her body parts and to expected sexual activity.  In re Myers, 864 N.W.2d 151 (Minn. 2015).  Twenty-five years after Peters, a part-time WMCL professor was suspended from practice for misconduct including misdemeanor unwelcome sexual contact with a student, in connection with an off-campus meeting to plan the student’s assignments.  In re Griffith, 838 N.W.2d 792 (Minn. 2013).  As a dissent advocating greater discipline noted, the faculty-student power imbalance was exacerbated by Griffith’s attempt to persuade the student to rescind her complaint to WMCL against him and his suggestion of providing help in finding her a job.

Minnesota can be proud of the courage shown by the harassment victims in coming forward with their complaint.  Minnesota can also be proud of the early recognition – by the Supreme Court, the MSBA and the Lawyers Board – that engaging in harassment on the basis of sex, race, religion, sexual orientation, etc. is incompatible with the character required of a lawyer, as well as harmful to the administration of justice.  Those on the low end of power balances within the profession can reasonably expect to be free of harassment.  When harassment does occur, a victims who files a complaint can expect discipline against the perpetrator.        

And yet, we cannot claim that discipline has eradicated harassment in the profession. When ethics charges were brought against Peters, some victims were, understandably, unwilling to participate in proceedings that would be stressful and publicized.  Strong impediments remain for victims to overcome in making complaints, especially where - as is often the case - the harasser holds power over the victim.  Testimony in cases like Miera, Peters and Griffith shows in wrenching detail how power is a deterrent to harassment complaints.  The results in these cases show that the power of a harasser can be overcome by the power of the professional responsibility system.

Postscript – Procedural History of In re Peters.   I became OLPR Acting Director July 1, 1985 and Director on September 1, 1985. 

The Peters discipline investigation and proceeding were preceded, in 1983-84, by complaints to the Minnesota Human Rights Department and a civil suit against Peters and William Mitchell by female students and employees of Mitchell.   Civil proceedings were settled and a discipline investigation began.

Roughly concurrent with these developments were processes by which the Minnesota Supreme Court adopted the Rules of Professional Conduct, effective September 1, 1985.  The Rules replaced the Code of Professional Responsibility.  Almost all provisions of the Code and the Rules dealt with lawyers who were representing clients. 

The Code governed Peters’ conduct.   Neither the old Code nor the new Rules contained any provision addressing sexual harassment.  The Code included a very broad provision prohibiting, "any other conduct that adversely reflects on [a lawyer's] fitness to practice law."  DR 1-102(A)(6).  The Code also prohibited “illegal conduct involving moral turpitude.”  DR 1-102(A)(3).  The Rules did not carry these prohibitions forward.  Instead, the Rules took a much narrower approach, making it misconduct to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”  Rule 8.4(b).  There was no allegation or suggestion that Peters had committed a criminal act.

The Director’s Office dismissed complaints against Peters.  My memory is that this occurred shortly before I became Director and that I participated in the decision. The rationale for dismissal was that the only applicable rules had, as a matter of public policy, been repealed (albeit after Peters’ conduct) because they were overbroad.   It was thought that the now-rejected rules should be given a wholly new application and that it would be better to adopt a new rule, proscribing harassment. The complainants appealed.  The Lawyers Board reversed, directing that a petition for disciplinary action be brought against Peters. 

The petition was heard in a public trial before a Supreme Court referee.  The referee did not make findings regarding moral turpitude, but he found a pattern of harassment that violated DR 1-102(A)(6).  The Court agreed and imposed a public reprimand. The Court found Peters’ conduct to be illegal and to be “suggesting moral turpitude.”   The Court condemned the conduct as reprehensible in various ways, but apparently stopped just short of a finding of moral turpitude and violation of DR 1-102(A)(3).

The Peters history shows a professional responsibility system that grappled for several years with the best way to proceed in dealing with complaints of sexual harassment that arose in a professional setting but not in court and no in an attorney-client relationship.  The results – a public reprimand and adoption of a rule proscribing harassment in a professional setting – were, I believe, fair, just and foresighted.