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“Still Broken”: Alaska Rule of Professional Conduct 8.4(f) and (g)’s Insufficient Response to Workplace Harassment by Lawyers

by Sam Turner

Click here for a PDF file of this article

Abstract

A report by Women Lawyers On Guard, entitled “Still Broken,” reported the results of a 2019 survey about sexual harassment and misconduct in the legal profession. It concluded that issues relating to sexual harassment and misconduct in the legal profession had not improved in the past thirty years. This Article looks at the Alaska Rules of Professional Conduct’s rule regarding harassment and discrimination by lawyers and argues that the rule does not sufficiently address workplace harassment by lawyers.

Alaska Rule of Professional Conduct 8.4(f), enacted in 2021, prohibits harassment or invidious discrimination by a lawyer “in the lawyer’s dealings with the lawyers, paralegals, and others working for that lawyer or for that lawyer’s firm” only if “the lawyer’s conduct results in a final agency or judicial determination of employment misconduct or discrimination.” But the nature of employment discrimination law and harassment in the legal profession means that very few instances of workplace harassment will result in formal findings by an agency or court.

The Article therefore recommends Alaska Rule of Professional Conduct 8.4(f) be amended to prohibit harassment or invidious discrimination “in the lawyer’s dealings with the lawyers, paralegals, and others working for that lawyer or for that lawyer’s firm”—subject to normal bar disciplinary proceedings and without any requirement of findings from an outside agency or a court. The Article also recommends adding a comment to the rule stating that firms, or at least large firms, should have and regularly disseminate an anti-harassment policy.

“Still Broken”: Alaska Rule of Professional Conduct 8.4(f) and (g)’s Insufficient Response to Workplace Harassment by Lawyers

by Sam Turner

Click here for a PDF file of this article

Abstract

A report by Women Lawyers On Guard, entitled “Still Broken,” reported the results of a 2019 survey about sexual harassment and misconduct in the legal profession. It concluded that issues relating to sexual harassment and misconduct in the legal profession had not improved in the past thirty years. This Article looks at the Alaska Rules of Professional Conduct’s rule regarding harassment and discrimination by lawyers and argues that the rule does not sufficiently address workplace harassment by lawyers.

Alaska Rule of Professional Conduct 8.4(f), enacted in 2021, prohibits harassment or invidious discrimination by a lawyer “in the lawyer’s dealings with the lawyers, paralegals, and others working for that lawyer or for that lawyer’s firm” only if “the lawyer’s conduct results in a final agency or judicial determination of employment misconduct or discrimination.” But the nature of employment discrimination law and harassment in the legal profession means that very few instances of workplace harassment will result in formal findings by an agency or court.

The Article therefore recommends Alaska Rule of Professional Conduct 8.4(f) be amended to prohibit harassment or invidious discrimination “in the lawyer’s dealings with the lawyers, paralegals, and others working for that lawyer or for that lawyer’s firm”—subject to normal bar disciplinary proceedings and without any requirement of findings from an outside agency or a court. The Article also recommends adding a comment to the rule stating that firms, or at least large firms, should have and regularly disseminate an anti-harassment policy.