By Sindhu Sundar
October 31, 2016

It was around midnight when the third-year associate found herself alone with one of her principal supervisors at a hotel bar in Midtown Manhattan. It had been a night of relaxed chatter among the two attorneys and a senior associate, who were discussing a client they were meeting the next morning. After the senior associate left for the night, the partner, a man in his mid-50s, urged the young woman to stick around "for about five minutes."

What followed was the steady unraveling of his professional demeanor, according to the woman, who narrated the account to Law360 on condition of anonymity. He proceeded to drink more, and then, intoxicated, he leaned in and pushed his legs against her. He confessed that his marriage of close to two decades was falling apart, and, knowing the associate was also married, he declared he was in love with her. Alarmed by the overture, the associate gingerly disentangled from his advances and walked around the corner of the bar to an elevator lobby to obscure herself from his view. Back in her hotel room, she paced in apprehension.

"I was having a total internal panic," she said. "When these personal things enter into a world that previously had been professional ... it places a sudden question of: Why are you in this litigation group? Is it because of who you are as a lawyer or [is it because] you're a woman?"

The incident, which took place in the fall of 2010, was one of several she described encountering during her years at her former employer, a D.C.-based firm that was later absorbed into an international law firm. The atmosphere often included crass banter at company dinners or suggestive comments about female attorneys' wardrobes. Once, when the firm received a new case involving a client in the Bahamas, she received an email from a male attorney telling her to "pack your bikini."

"You know what Trump calls 'locker room talk'?" she said. "I'd call that 'law firm talk.'"

More than a dozen female attorneys and employment counsel who spoke to Law360 corroborate that observation to varying degrees. White collar workplaces — and law firms in particular — have made progress in shedding some of the more barefaced sexism that prevailed in the '80s, but a male-driven culture of objectification and sexual power plays still intrudes the modern legal industry, they say.

The problem remains largely intractable within a law firm hierarchy in which top-earners tend to be shielded from harassment claims and partners wield outsize influence over the careers of their subordinates. According to industry studies, the vast majority of female attorneys report encountering sexist jokes at work, and more than a quarter say they've experienced unwanted sexual attention.

But there are signs that the industry will no longer tolerate the status quo. In August, the American Bar Association for the first time adopted an ethics rule that prohibits lawyers from knowingly harassing people in the course of practicing law — a measure that faced backlash from attorneys who insisted that this was irrelevant to the profession and would prevent lawyers from freely representing clients.

"I think the rule is critical because it named harassment as not only a legal issue but an ethical issue, so it stands to be taken more seriously than it has been in the past," said Fatima Graves, a director at the National Women's Law Center.

In an industry that has been slow to police itself, the backlash from some attorneys is not surprising: "I think it's more a reflection of the hard work of changing culture and moving institutions to address this kind of problem," Graves said.

A Workplace 'Pariah'

A few days after former Baker & McKenzie LLP legal secretary Rena Weeks won a $7.1 million verdict against the firm and one of its partners in a landmark sexual harassment trial in 1994, she sat at her attorney's office taking stock of her victory. She remembers asking him, the now-deceased employment attorney Philip E. Kay, for advice on her next career options. "I said, 'What do I do now?'" she recalls. Then, she says, came Kay's memorable retort: "Who's gonna wanna hire you?"

Weeks had left the firm in 1991 after just two months on the job, where she allegedly suffered repeated harassment by Martin Greenstein, then a partner in the firm's intellectual property practice in Palo Alto, California.

Once, they were leaving an office lunch together and walking toward his car, when he put his arm around her to place some candy into her shirt pocket. Then, holding her shoulders back, he said, "Let's see which breast is bigger," according to a 1998 state appeals court opinion that recounted Weeks' allegations.

Weeks also alleged in her suit that Greenstein harassed her in the office. Once, Greenstein happened to be walking in her direction while carrying a box, but spotting her, he set the box aside and lunged at her while cupping his hands, she claimed.

On appeal, Greenstein conceded there was evidence to support some of her allegations, including touching her buttocks and gesticulating to cup her breasts, but he denied that there was sufficient evidence of sexual harassment, the court wrote. Baker & McKenzie itself did not challenge the jury's finding that he sexually harassed her.

In an interview, Weeks recalled the encounters at work. "When you're walking down the hallway, he would appear right next to you and push you against the wall, or lunge at you," she said.

Greenstein has denied Weeks' claims. He could not be reached for comment. 

Weeks' verdict, which was later halved to $3.5 million to reduce the ratio of punitive to compensatory damages, brought her a sense of vindication. But Kay's rhetorical question regarding her career prospects summarized a lingering predicament for victims of harassment at law firms: The reputational fallout of making an accusation of sexual harassment against a co-worker or a superior would likely impair one's career.

Weeks, now 62, said she has not worked in the legal industry since then and is currently unemployed.

"He was blunt, but he was right," she said of Kay. "When I was filing the suit, I had no concept of the full spectrum of what I was doing. But I was like, a pariah in the workplace."

The case marked something of a turning point at the time for those fighting back against law firm sexual harassment, and an attorney for Weeks noted that it has since been used in training videos for law firms as an example of how not to respond to such complaints.

"I will say that since the Weeks case, employers have taken sexual harassment much more seriously, in part because of the huge monetary award given by jury," said Lawrence Organ of the California Civil Rights Law Group, who represented Weeks.

Nevertheless, decades later, law firm employees who have experienced sexual harassment still have reason to fear for their career prospects when deciding whether to come forward. The issue of retaliation is complicated at law firms because of the power that workplace superiors — often highly valued business-generators — have over the pay and responsibilities of younger attorneys and staff.

That power dynamic is not limited to law firms. Fresh allegations leveled last week against U.S. Supreme Court Justice Clarence Thomas brought new attention to the issue at a time when the presidential candidacy of Donald Trump is prompting many women to share stories of harassment. Moira Smith, an attorney from Alaska, told The National Law Journal that Justice Thomas harassed her in 1999 when she was a 23-year-old Truman Foundation scholar.

Smith said in a statement to Law360 on Friday that she decided to make the allegations public in order to break taboos about the subject of sexual harassment and assault perpetrated by people in power.

"When powerful men commit sexual assault, they count on their victims keeping it a secret," Smith said in the statement. "When Justice Thomas touched me inappropriately and without my consent, I was 23 years old — and felt there was nothing I could do. Seventeen years later, it is clear that sexual harassment, misconduct and assault continue to be pervasive, having an impact on all women."

Kathy Arberg, a spokeswoman for the Supreme Court, declined to comment beyond a statement that Justice Thomas had issued to The National Law Journal denying the allegations, in which he said "it is preposterous and it never happened."

Employment attorneys say the new allegations against Justice Thomas will not necessarily encourage female attorneys to start reporting harassment in the workplace, particularly because of its potential to cause professional damage. 

"It's different for attorneys," said Angelina Moyo, an employment attorney at Bowman & Associates in Sacramento, California. "It tends to be difficult to be in a position to lodge these kinds of accusations, mainly because much of the legal profession is male. Women attorneys work very hard to be treated the same as our male counterparts — you never want to appear weak or unable to handle the pressures of life."

Wendi Lazar, a partner at Outten & Golden LLP, which represents employees, said she can "count on one hand how many times a firm has actually reprimanded or sanctioned someone or suspended a male partner [for harassment]."

"Internally at law firms, there is often nothing done to the male partner, and the woman partner or the associate is asked [or feels compelled] to leave," she said. 

The lockstep track toward partnership can also pose an additional challenge to more experienced associates for whom partnership could be within reach — as long as they don't make an ill-timed complaint against an influential partner.

"If you're someone eligible for partnership, and in year seven, eight or nine, and during that time there's a harassment claim that you bring, where does someone like that go after that?" Lazar said. "Do you put on your resume that you're a 10th-year associate?"

The ABA Steps Up

In August, American Bar Association delegates met in San Francisco to vote in support of a controversial proposal from the group's Standing Committee on Ethics and Professional Responsibility to prohibit harassment — the culmination of a long-running effort to formalize protections against such behavior in the profession.

Read the anti-discrimination and harassment amendments to the ABA Model Rules of Professional Conduct

The proposal amended the ABA's Model Rules of Professional Conduct, which codify a list of professional and ethical standards first adopted in 1983, to include "black letter law" prohibiting conduct that "the lawyer knows or should know is harassment or discrimination." It defines harassment as "unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature," and it also specifies that the conduct it polices can involve anything that can take place in the course of practicing law, including "interacting with witnesses, co-workers, court personnel, lawyers and others" and "operating or managing a law firm or law practice."

The final version of the proposal, which was first put forth in December, states that if lawyers act in a manner they "reasonably know" to be harassing or discriminatory, it would amount to professional misconduct.

The ABA's efforts to address harassment in its model rules date back to 1994, when its ethics committee sought to include bias and prejudice as examples of professional misconduct, but the proposal succumbed to objections that it could restrict legitimate law practice.

The amendment proposed in December likewise drew a hard-fought battle. Rena Lindevaldsen, an associate dean at the Liberty University School of Law, expressed a prevailing sentiment among objectors when she wrote to the ABA in March that "the proposed rule changes raise serious First Amendment concerns, including chilling legitimate and constitutionally protected speech and beliefs, and invade the professional autonomy historically afforded to attorneys."

A letter to the ABA by 52 attorneys, more than 40 of whom are men, argued that the amendments would discipline attorneys for infractions that fall outside the proper scope of the model rules. Harassment and discrimination are "conduct that neither adversely affects the attorney's fitness to practice law nor seriously interferes with the proper and efficient operation of the judicial system," they wrote.

The letter, signed by 52 attorneys, objecting to the ABA's proposed amendment to the Model Rules of Professional Conduct.

Even in the days leading up to the vote in August, members of the ABA committees met with delegates to underscore the need for amendments that would directly repudiate discrimination and harassment in the profession.

"It was very close to the last moment [of the vote] that we had discussions about legitimate concerns on both sides of the issue," said former ABA President Laurel Bellows, who worked to persuade the delegates to adopt the amendments. "We did our best to collaborate and come to a conclusion that maybe we could all agree with."

The final language of the provision included the caveat that the anti-discrimination activities should be knowing and that the provision on the whole should not interfere with "legitimate advice or advocacy consistent with these rules." In the end, the delegates almost unanimously voted in favor.

But the ABA's prohibitions are largely symbolic, as they don't translate to instant penalties for attorneys found in violation. The rule merely offers a framework for various state bodies that govern the conduct of attorneys to consider when adopting similar measures, according to ABA spokesman Matthew Cimento. Roughly 25 states already have a black letter rule prohibiting harassment, discrimination or both, Cimento said, adding that any penalties imposed for violations "are totally up to" such state boards.

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"Disciplinary sanctions vary because the facts presented in every case are unique and every state supreme court is asked to interpret its own rules," he said in an email. "Depending on the behavior, the language of the state's rule, and the lawyer's past disciplinary record, a lawyer could face a sanction that includes anything from a censure to a disbarment."

'I Am HR'

In her very first week at a small firm in Manhattan, an associate attended a law firm dinner party at Morton's Steakhouse that she said involved some alarming exchanges in the name of banter. One male attorney made lewd jokes about "whores," while another threw a pair of surgical gloves at another female attorney "with the question of what was up this attorney's vagina," according to a demand letter her attorney later sent the law firm when she departed more than a year after the incident.  

A more serious violation took place after a particularly challenging deposition with a dying client, said the woman, who spoke to Law360 on the condition of anonymity because her eventual confidential settlement with her former law firm bars her from identifying it. A partner at the firm told her that her handling of the deposition made her appear to be too zealous an advocate for her client. "You don't want to make it look like you're having sex with your client," she remembers him telling her.

And when she vocally objected to the tone of commentary in the workplace, male attorneys at the firm would disparage her as "hyper-[politically correct]" and lament that they would have to watch their tongues in her presence, she said.

When she sought to raise such problems with the firm's human resources department, she was told by a male name partner at the firm, "I am HR," according to her demand letter. At one point, confounded about the seeming lack of resources to handle the situation, she sought the advice of a friend whose mother worked in the human resources department of another company, she said.

"I remember thinking, 'I can't believe that I'm a lawyer and I don't know what to do,'" she said.

Experts say it's not uncommon for smaller firms to lack human resources oversight, a dynamic that is particularly problematic in an industry in which business-generating "rainmakers" can be prized by firms to the point of being above reproach.

"I think one of the issues is that law firms, because of their relatively flat structure, [harassment victims] don't have the same avenues [they'd] have in a corporate setting," said Larson King LLP partner Angela Brandt, the vice president of NAWL. "Most law firms don't have HR or multiple layers of management."

In September last year, Fran Sepler of Sepler and Associates, a Minneapolis-based employment consulting firm focused on preventing workplace harassment, highlighted in testimony to the Equal Employment Opportunity Commission the continuing difficulties of ensuring the accountability of high-status employees, particularly those at law firms.

She said law firm administrators still lacked power over law firm professionals, which she described as an impediment to punishing workplace harassment at law firms. In her experience, she said, attorneys at law firms tended not to devote as much time to sexual harassment training as nonattorney staff did.

"This is not, I assure you, because attorneys somehow already know this material," she wrote in her testimony to the agency. "When a claim is made against a staff member, there is little wringing of hands, and a willingness to take punitive action, but if there is a claim made against a partner, it becomes a very big deal."

A California state appeals court made a similar observation in the Weeks case. Prior to the time of his alleged harassment of Weeks, Greenstein had racked up several complaints that would have demonstrated a clear pattern of misconduct, had they been documented consistently, the appeals court said when it upheld the verdict in 1998.

As far back as 1987, an office administrator at the firm's Chicago office, where Greenstein worked before being transferred to Palo Alto, had confronted him about a legal secretary's complaint against him for sexual harassment, the court said. Greenstein allegedly experienced few consequences even when the administrator also reported his conduct to the chairman of the Chicago office committee at the time. The committee chairman, Robert Cunningham, now a senior counsel at the firm, eventually met with Greenstein about the complaints but did not act beyond telling Greenstein to be more cautious, according to the court.

Greenstein racked up additional complaints of harassment and inappropriate physical contact in Chicago and then in California after relocating there in 1990, but each time he denied those complaints when confronted and warned by the firm's partners. There was no consistent documented record in his personnel file of the complaints against him, the opinion said.

"The ineffectiveness of the warnings given Greenstein may have resulted from Baker & McKenzie's failure to make any useful documentation of Greenstein's misconduct, or may have resulted from a corporate desire to avoid alienating a productive partner despite the injury he could be expected to cause to employees," the California appeals court wrote.

"Whatever the cause of Baker & McKenzie's inaction, it certainly tended to communicate both to Greenstein and to those who worked around him that Baker & McKenzie did not take his misconduct seriously," the court said.

Commenting on the Weeks case, Baker & McKenzie spokesman Kevin Blasko said in an email to Law360 that the firm does not "tolerate harassment of any kind in the workplace" and that it has "perhaps the most comprehensive code of business conduct of any law firm."

Tip of the Iceberg

Although attorneys of any gender can experience harassment, women have flagged it as an issue far more frequently than their male counterparts. A 2001 report prepared for the ABA's Commission on Women in the Profession by Stanford Law School professor Deborah Rhodes stated that women accounted for 90 percent of reported complaints of harassment at law firms.

Of the more than 2,800 law firm and in-house attorneys who participated in an as-yet-unpublished survey conducted by the Center for WorkLife Law at the University of California, the ABA commission and the Minority Corporate Counsel Association from April to June of this year, women consistently pointed to issues linked to harassment. Responding to one question — "Do you feel like you lost [career] opportunities when you rebuffed sexual advances?" — 13 percent of women responded yes, compared with 4 percent of men. In addition, 82 percent of women and 74 percent of men said that lawyers made sexist jokes around them in the workplace, and 27 percent of women and 8 percent of men said they experienced unwanted sexual attention in the workplace.

Beyond such general figures, statistics about sexual harassment in the legal industry tend to be difficult to come by, as neither the ABA nor the National Association of Women Lawyers collects detailed data or studies the issue. Harassment allegations against law firms tend to settle out of court before or after a lawsuit is filed, or they end up before the EEOC, whose strict confidentiality rules can cloak such charges from the public.

The agency itself only files lawsuits "as a last resort," according to EEOC spokeswoman Justine Lisser, who said it files suit only when its own investigation has found "reasonable cause" to believe the accuser's allegations — and even then not always. Many law firms also have mandatory arbitration agreements, particularly with contract partners, making it difficult, if not impossible, to bring lawsuits against them, employment attorneys say.

Since many settlements are confidential, it's also difficult to identify patterns in how these cases are settled and how much compensation they tend to settle for, but some employment attorneys indicate the payouts may be not be huge. For example, the associate from the small Manhattan firm who claimed she experienced hostility and exclusion there said she eventually settled her suit in 2015 for $75,000.

Law firms also attempt to maintain secrecy about complaints against their attorneys, particularly high-earners, out of reputational concerns.

"Many law firms have mandatory arbitration agreements, particularly with contract partners, so you can't bring a public lawsuit," Lazar said. "You end up in a forced arbitration where it's basically a closed forum. So there's no possibility of public shaming."

Read the EEOC report on workplace harassment
 

The EEOC's workplace harassment task force issued a report in June that found harassment is largely unreported and that it tends to occur in male-dominated professions. Other studies show that law firms fit that mold.

According to the National Association of Women Lawyers' 2015 survey of the state of women in the legal profession, only 18 percent of equity partners at law firms are women, a figure that has risen only 2 percentage points since 2006, when it issued its first survey on the subject. Of the nonequity partners who graduated from law school after 2004, 38 percent were women.

Law360's April survey of women at law firms, the 2016 Glass Ceiling Report, found that 34 percent of all attorneys and 22 percent of partners at U.S. law firms surveyed are women. The survey included more than 300 U.S. firms and included attorney headcount data as of Dec. 31, 2015.

"It is really a male-dominated profession and has been for a long time," Lazar said. "Like in the financial services industry, men kind of covered for other men."

BigLaw's Response

When Law360 contacted the 50 largest corporate law firms to comment on how they address sexual harassment in the workplace, the response was largely tight-lipped. Two firms, Morgan Lewis & Bockius LLP and Holland & Knight LLP, offered brief statements, while the only firm willing to discuss its approach in broader detail was Orrick Herrington & Sutcliffe LLP, which has a sizable employment practice of its own.  

Andrew Livingston, the deputy leader of Orrick's global employment practice, said the firm has created a variety of means to address sexual harassment, including a human resources department that collects records of any complaints. All attorneys in the firm are trained to identify and address sexual harassment, so that victims seeking to report such incidents can approach a number of key contacts within the firm, including office managers as well as attorneys who lead its practice groups, business units and mentorship groups.

Any complaints made through such channels will ultimately be funneled to its centralized HR department, which keeps records of such complaints, he said. It is that department that makes the ultimate decisions about whether to conduct internal investigations and, if so, what the scope of those inquiries would be.

The firm also conducts training sessions at least once every two years, either led by those within its group of 70 employment attorneys or through online sexual harassment seminars, he said.

"We're like any other mature employer — when we validate a complaint, we take prompt action to address it," he said. "That means we discipline individuals who have been found to engage in such conduct. But thankfully, we don't see such conduct — or at least, not very often."

Livingston declined to offer data on how many investigations Orrick's HR had conducted on sexual harassment reports, how often the firm took disciplinary action over a complaint of sexual harassment, or how many such harassment reports are filed each year. But he said that the firm takes such complaints seriously and is "very sensitive to concerns about how people are treated in the workplace."

Morgan Lewis spokesman Elliott Frieder said the firm would not comment on internal policies, but he pointed out that it has instituted similar mechanisms to address complaints of harassment.

"Our firm has a long-standing commitment to ensuring a work environment that respects the dignity and worth of each individual and is free from all forms of unlawful harassment," Frieder said in a statement. "We do not comment publicly on the firm's employment policies but confirm that our policy includes multiple avenues for reporting any concerns an individual may have."

Holland & Knight has a designated committee to address workplace concerns including harassment, partner Kelly-Ann Cartwright said in an emailed statement. Cartwright, who leads that committee, said that victims of such misbehavior can also turn to most leaders and administrators within the firm.

"Any employee or partner who believes that he or she is being subjected to conduct in violation of the firm's sexual harassment policy can report the behavior to the firm's fair employment practices committee," she said. "They can also report directly to their office business managers, HR and professional development officers, or executive partners (partner in charge of each individual office). The committee works with all the parties involved to find a resolution."

Holland & Knight spokeswoman Olivia Hoch said that the firm created the committee "probably 15-20 years ago" and that "it works similarly to many other companies that have HR managers or department directors, where employees can lodge claims of unfair treatment or discrimination."

A Firm on Trial

In the absence of broad data, the few lawsuits in recent decades involving sexual harassment offer a window into a law firm culture that can enable such conduct.  

The most recent high-profile trial to hit the headlines occurred last year, when ex-Faruqi & Faruqi LLP associate Alexandra Marchuk sued her former employer in a roller coaster of a case. The outcome was a relatively small $140,000 verdict for Marchuk in February 2015 — she had sought more than $2 million in damages at trial — and the case eventually ended in a settlement in August.

Ex-Faruqi & Faruqi associate Alexandra Marchuk, left, outside a Manhattan courthouse during a February 2015 trial over her sexual assault claims. (Cara Salvatore/Law360)

The allegations, which played out in federal court in New York, appeared to embody the worst stereotypes about a testosterone-fueled culture that protects senior male partners, especially those a firm values as rainmakers. Marchuk had accused star Faruqi partner Juan Monteverde of behaving improperly with her over the course of months and ultimately assaulting her after a holiday party in 2011.

At trial, Monteverde denied this account, claiming it was Marchuk who had initiated that event by repeatedly grabbing his hand and kissing him. He also claimed that, having consumed up to 10 drinks at the office holiday party, he was too drunk to have consensual sex, let alone assault her.

Her amended complaint filed in August 2013 alleged that Monteverde made a "barrage of improper, explicit and unwanted sexual advances" toward her from the beginning. On her third day of work, he kissed her and grabbed her breast outside a bar in Manhattan, she claimed, saying the incident caused her to panic. And though she later confided in another partner about the alleged episode, she implored her not to tell the Faruqi principals.

But the partner nonetheless informed Nadeem Faruqi, one of the firm's co-founders, who reprimanded Monteverde for the indiscretion, according to court documents, although he faced no other disciplinary action. The firm and its principals have maintained that the encounter, like others that followed between Marchuk and Monteverde, was consensual.

Marchuk, on the other hand, has described those encounters as part of a pattern of unrelenting harassment that culminated in the incident on the night of the holiday party, where Monteverde allegedly threatened to have her fired if she did not have sex with him.

The verdict ultimately held Monteverde liable under only New York City human rights laws, which generally place a lower burden on hostile work environment claims compared with federal and New York state laws governing such conduct.

"In New York City, if someone so much as sneezes in that direction, you can be found liable," Lubna Faruqi, the firm's co-founder, told Law360.

Lubna Faruqi said that during and since Marchuk's stint at the firm in late 2011, it has continued to have a managerial committee comprising senior attorneys and staff to receive complaints of harassment, but Marchuk did not lodge any such formal complaints against Monteverde.

"It's spelled out in our employment handbook, and attorneys can report [misconduct] verbally or in writing to the commission," she said. "We take it very seriously — the commission would speak to all the individuals involved and would follow through with actions. I don't know why she did not avail herself of that option."

Marchuk has indicated in court records that job security was a major concern. She earned a salary of $75,000 as an associate at the firm, and had accumulated more than $280,000 in law school debt at the time. Marchuk, who could not be reached for comment, has moved to a different state and now works "in a different field," according to a January 2015 opinion by the New York federal judge who oversaw the trial.

"Marchuk decided to commence the action, reluctantly but with conviction, only after the defendants refused to negotiate a pre-litigation settlement," her attorney, Harry Lipman of New York-based Rottenberg Lipman Rich PC, said in an email to Law360. "Acts of bravery like hers are hard to explain, and female employees owe Ms. Marchuk and other like her a debt of gratitude, because if these matters were never brought to light and litigated publicly, then sexual harassment would be an even worse problem in the workplace than it already is."

Sindhu Sundar is a feature reporter for Law360 who last wrote about the Supreme Court justices who own stock. Follow Sindhu on Twitter. Editing by Jocelyn Allison and Jeremy Barker.