Eradicating Sexual Misconduct in the Courthouse to Foster a Legal Community that Promotes Respect, Safety, and Equality
By: Lindsay B. Coleman and Judge Debra B. Walker with editing assistance from Kelly T. Bennett
“Darkness cannot drive out darkness: only light can do that.” Dr. Martin Luther King, Jr.’s words remind us that effective change begins with awareness. Many legal professionals are alarmingly unaware that sexual harassment1 continues to cause serious harm in courtrooms and law offices. In fact, sexual harassment still affects attorneys at all levels, including judges and named partners. Last year, many of us became aware of two prominent Illinois legal professionals, an attorney and judge, who were charged with sexual misconduct allegations. Now more than ever, particularly as we begin to reconvene our in-person meetings and non-virtual workplace interactions, the legal community needs to bring sexual misconduct into the light and take action to eradicate it. The light, combined with action, allows us to foster a community that promotes respect, safety, and equality.
Last summer, Women Lawyers on Guard, a national nonprofit organization focusing on equality and justice,2, released a study that analyzed the results from its survey of attorneys. Among other questions designed to understand the experiences of those who have been harassed, the survey respondents were also asked to provide time frames, in five to 10-year increments, in which such harassment occurred going back 30 years. The report found that sexual harassment by partners and supervising partners does not appear to have lessened in the last 30 years but simply shifted. It alarmingly showed that although the percentage of “sexual assaults, threats, and bribes for sex decreased, the percentage of sexually offensive jokes, ogling or leering, rating of attractiveness and sexualized name-calling” increased. Further, the study revealed that significant barriers to reporting sexual misconduct and harassment continue to exist and, equally concerning, that reporting systems are not effective. Most legal professionals do not report sexual misconduct due to fear of job loss or negative career repercussions or due to doubts about whether they will be believed. Half of the respondents to the Women Lawyers on Guard study said that even when they reported harassment, the offender did not suffer any consequences, and horrifically, in 4% of the cases, the harassment worsened after reporting.3 Issues related to reporting strongly contribute to the prevalence of sexual harassment and sexual discrimination. As such, by focusing our attention on tackling the difficulties associated with reporting such incidents, we may begin taking our first steps out of the darkness.
An inspiring group of women attorneys who primarily practice in domestic relations, affectionately called Lady Lawyers Who Lunch (“LLL”), are diligently raising awareness of sexual misconduct in our profession and proposing solutions. In December 2020, LLL invited Judge Debra B. Walker, a Cook County Domestic Relations Judge and past Chair of the Illinois Supreme Court Commission on Professionalism, to share with the group her writing and knowledge on this subject over Zoom. Judge Walker explained that sexual misconduct is not about sex but about power. When a survivor reports sexual misconduct, it is a way to reclaim the power and to bring sexual misconduct into the light. Exposing offenders and bringing their misconduct to light can discourage further misconduct by the offenders and may motivate other professionals to not be shamed by the actions of others. Judge Walker pointed out that this is how change happens over time.
- Judge Walker suggested several options for attorneys to consider to help eradicate sexual misconduct:
- If the misconduct occurs in court, inform the judge, and ask the judge to admonish the offender.
- If you witness misconduct in the courthouse, report it. If you see something, say something.
- Write to the judge (caveat ensure there is not any ex parte communication about the case).
- Report misconduct to a supervisor, human resources, or someone of equal or higher rank to the offending attorney, if there are no such human resource-like departments.
- Write articles for bar journals and other legal and/or professional organizations.
- Volunteer to be a mentor to younger attorneys.
- Report the offender to the ARDC or JIB, even if it may not result in discipline by these entities. They maintain records of prior complaints.
For those who are not ready to report, Judge Walker expressed that the need for allies is critical. Judges in particular are in a unique position to serve as allies, especially in a courtroom where they may immediately address such uncivil conduct. In fact, as Judge Walker highlighted, judges have a duty to make their courtrooms safe for everyone4 and judges must set consistent expectations for all attorneys in all courtrooms.5 For any uncivil behavior, including sexual misconduct, all judges must take immediate action to nip it in the bud at inception. When judges are able to set the tone for civil conduct, they lead by example. Judge Walker suggested that judges review the tools at their disposal to immediately halt sexual misconduct in the courtrooms, including the following:
- Strongly admonish the offender in open court.
- Put attorneys in a “timeout” by sending them into the hallway (or Zoom waiting room) until they can demonstrate respect for the presiding judge, the litigants, and the lawyers.
- Bring the offenders immediately into chambers (or a breakout room for Zoom) to speak with attorneys about their misconduct and how to eliminate such behavior (caveat: ensure there is not any ex parte communication about the case).
- If such misconduct occurs while a witness is being questioned, then an attorney should make an objection on the court’s record.
- If such misconduct occurs during a deposition, call the presiding judge, put him/her on speakerphone, and inform the judge of the misconduct. Alternatively, attorneys may request for a deposition to be taken in the judge’s conference room, providing the judge with the ability to rule instanter and address immediately any attorney’s behavior.
- Judges should have Civility Rules on display in their courtrooms.
- Attorneys may speak with the presiding judge of the division or with a chief judge if a judge engages in such misconduct or allows such misconduct to occur in their courtroom.
- Attorneys may also prepare a motion regarding misconduct in a case at bar and notice it for the court to address.
Recognizing that survivors may still be hesitant to report, Judge Walker unequivocally stated that third parties, including judges and other attorneys, must come forward to report sexual misconduct. On June 6, 2019, the Illinois Judicial Inquiry Board filed a Complaint with the Illinois Courts Commission against former Cook County Circuit Judge Mauricio Araujo, which alleged he engaged in unwanted sexual advances, inappropriate and harassing advances, and inappropriate and sexually suggestive comments and conduct toward women.6 The complaint further alleged that “through the described pattern of inappropriate conduct toward women respondent encountered in a professional setting and through each incident, respondent violated Rules 61, Canon 1, Rule 62, Canon 2(A), and Rule 63, Canons 3(A)(3) and (A)(9).”7 Multiple women came forward to report him, demonstrating, in part, the importance of reporting offenders. Araujo resigned in late September 2020 after the Commission found Araujo’s conduct, as proved by clear and convincing evidence, was “prejudicial to the administration of justice and brought the judicial office into disrepute toward women.”8 Although Araujo had resigned, Illinois Supreme Court Justice Theis, Chair of the Courts Commission, issued an exceptionally strong Opinion, which, in part, should serve as a warning to judges that this is a new era and sexual harassment will not be tolerated.
It is 2021 and while everyone should “know better,” sexual misconduct continues to be a pervasive issue that requires more effective measures to eradicate. Attorneys and judges must genuinely commit to stand united, strategize, cultivate allies, mentor the younger generations, and continue to collaborate, so together, our legal community will truly achieve fundamental and long-lasting change. We need to pave the way for effective and “unbroken” reporting systems to address and curtail sexual misconduct in our legal profession, regardless of whether it occurs in courtrooms, law firms, or bar associations. We need to adopt a zero-tolerance standard. Collectively, we must bring the dark behavior of sexual misconduct into the light and make sexual misconduct a shameful behavior that has real consequences, so that attorneys and judges together may create a profession that promotes respect, safety, and equality. The future of our profession depends on it.
Lindsay B. Coleman is the founding owner and principal attorney of Coleman Law, P.C. Lindsay practices law in the areas of domestic relations and criminal law in Cook County and Lake County. Lindsay is a certified mediator, Guardian Ad Litem/Child Representative, and a Collaborative Law Fellow. In addition to practicing law, she is a founding member of The Force of Lawyers Against Sexual Harassment (“FLASH”), a task force of Illinois legal professionals united to study, to make recommendations to the Illinois legal community, and to combat the prevalence of sexism, sex-based discrimination, sexual harassment, and sexual assault in the Illinois legal community through direct advocacy, policy implementation, education, and peer support.
Judge Debra B. Walker sits as Team Lead for Team E in the Domestic Relations Division for the Circuit Court of Cook County. She is the immediate Past Chair of the Illinois Supreme Court Commission on Professionalism and a Past President of the WBAI. Judge Walker is a frequent lecturer, panelist, and author on numerous professionalism topics including incivility, bullying, and harassment, as well as diversity, equity, and inclusion.
Kelly Thames Bennett is the Ex-Officio of the Illinois State Bar Association’s Standing Committee on Women and the Law and a partner at Law Offices of J. Jeltes, Ltd, where she represents clients in family life transitions, ranging from divorce, parentage, minor and adult guardianship, prenuptial agreements, adoption, and decedent’s administration. She is a founding member of FLASH.
Footnotes
NOTE: Sexual harassment, sexual discrimination, sexual assault/violence, and sexism in all forms are referred to herein as “sexual misconduct”.
See an executive summary of the study, Still Broken: Sexual Harassment and Misconduct in the Legal Profession. The study is based on an August 2019 survey, disseminated through bar associations, online groups, and individuals’ networks. More than 2,100 people responded to the survey; 92% of them identified as female.
The survey found that sexual harassment has long-term negative effects. Sixty-one percent of the respondents reported anxiety about their careers or workplaces; 40% feared retaliation; 37% experienced a loss in productivity; and 28% reported a negative impact on their careers. Only 18% reported no impact.
“A judge having knowledge of a violation of these canons on the part of a judge or a violation of Rule 8.4 of the Rules of Professional Conduct on the part of a lawyer shall take or initiate appropriate disciplinary measures.” See CANON 3” Rule 63 – Canon 3 of the Code of Judicial Conduct, Ill. Sup. Ct. R. 63. This Canon requires a judge to take or initiate appropriate disciplinary measures where he or she has knowledge of a violation of Rule 8.4.
“It is unprofessional for a lawyer to: “…engage in 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.” See Model Rules of Prof’l Conduct R. 8.4(g).
See In re Araujo, Case No. 19 CC 1 (Nov. 6, 2020).
See Id.
See Id.