Addressing Unprofessional Conduct: Efforts and Initiatives
The Maine Justice Action Group joins the call to action to address unprofessional conduct and sexual harassment in the legal profession. Nan Heald's article in the November 24, 2017 issue of the Maine Lawyers Review alerted the legal community to the existence of unprofessional behaviors by attorneys and the negative fallout that such behaviors cause, particularly for legal services lawyers. JAG offers the following database as a central repository of efforts that have been undertaken within the legal community to address unprofessional attitudes and behaviors. All members of the community are encouraged to submit (and update) their initiatives and undertakings to this compendium by emailing Cindy Brochu at cindy.brochu@courts.maine.gov.
Addressing Unprofessional Conduct: Efforts and Initiatives
| NAME OF ORGANIZATION | EFFORTS UNDERTAKEN OR PLANNED | REPORT DATE | CONTACT PERSON |
|---|---|---|---|
| Bernstein Shur | ANTI-HARASSMENT, DISCRIMINATION, AND BULLYING POLICY Bernstein Shur takes pride in fostering a work environment that enables its employees to succeed and thrive both professionally and personally. The firm is committed to providing a firm culture that is professional, respectful, and free from harassment, discrimination, hostility, bullying, or intimidation, whether or not such conduct rises to the level of being unlawful. It is the responsibility of all employees, but especially those in managerial or supervisory positions, to strive to keep Bernstein Shur free from all such unlawful or inappropriate conduct. Any employee who becomes aware of conduct they believe is prohibited by this policy to should report it immediately. Violations of this policy will be addressed promptly and will result in appropriate action, up to and including formal discipline or termination of employment. STATEMENT OF POLICY Bernstein Shur prohibits anyone from harassing, discriminating, intimidating or bullying any employee based on race, color, religion, sex, sexual orientation, including gender identity and expression, national origin, age, genetic information and history, disability, and any other characteristic as protected under the law (each a “Protected Characteristic”). Bernstein Shur prohibits sexual harassment (as defined herein), whether or not such conduct rises to the level of being unlawful. Bernstein Shur further prohibits other forms of harassment, discrimination, intimidation, hostility or bullying (as defined herein), regardless of the motivation for the inappropriate behavior and regardless of whether it is unlawful or involves a Protected Characteristic. None of the foregoing inappropriate behaviors will be tolerated. The firm will take prompt action to investigate and properly address all such inappropriate behavior. DEFINITION OF SEXUAL HARASSMENT “Sexual harassment” is defined as sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: A. Submission to such conduct is made (either explicitly or implicitly) a term or condition of an individual's employment; B. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or C. Such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. The severity of the conduct and the degree of pervasiveness are considered when evaluating whether the conduct meets this definition. The following is a non-exhaustive list of conduct which, depending on the circumstances, may constitute prohibited sexual harassment: REMEDIAL ACTION If the firm’s investigation reveals that a violation of this policy occurred, it will act promptly to take appropriate action, which may include disciplinary action against an employee up to and including termination of employment or ending the firm’s business relationships with the person(s) responsible. The firm reserves the right to take action even if the firm determines that the prohibited conduct did not rise to the level of being unlawful. • Sexual advances, whether involving physical touching or not; • Requests for sexual favors in exchange for actual or promised benefits, such as positive or favorable reviews, increase in pay, compensation and/or benefits, promotions, or continued employment; • Assault or coerced sexual acts; • Jokes of a sexual nature, written or oral references to sexual conduct, discussion of one's sex life, comments about an individual's sexual prowess, deficiencies or activity; • Display of objects, pictures, or cartoons of a sexual nature; • Leering, whistling, or physical touching of another's body; • Demeaning, insulting, intimidating, lewd, or sexually suggestive verbal, written, recorded, or electronically transmitted messages or images; • Other physical, verbal, or visual conduct of a sexual nature; • Any retaliation, or threat of retaliation against a person who has made a complaint of sexual harassment; • Any retaliation, intimidation or threat of retaliation or intimidation against a person who has refused or rebuffed sexual advances, refused to participate in sexual conduct as described above, or objected to offensive sexual conduct or comments. • Preferential treatment or promise of preferential treatment to an employee for submitting to sexual conduct, including soliciting or attempting to solicit any employee to engage in sexual activity for compensation or reward; and • Subjecting, or threats of subjecting, an employee to unwelcome sexual attention or conduct or intentionally making performance of that employee's job more difficult because of that employee's gender or sexual orientation. DEFINITION OF OTHER FORMS OF HARASSMENT PROHIBITED BY THE FIRM Harassment is verbal or physical conduct that demeans or shows hostility or aversion toward an individual for any reason, but particularly including, without limitation, such conduct directed toward an individual’s race, color, religion, sex, age, national origin, ancestry, creed, citizenship, alienage, marital status, sexual orientation, physical or mental disability, veteran status, gender identity, whistleblower status, or any other Protected Characteristic and that: • Has the purpose or effect of creating an intimidating, hostile, or offensive work environment; • Has the purpose or effect of unreasonably interfering with an individual's work performance; or • Otherwise adversely affects the individual's employment opportunities. Harassing conduct includes, without limitation, slurs, epithets, or negatives stereo¬typing; threatening, intimidating, or hostile acts; denigrating jokes, or the display or circulation in the workplace of written or graphical material that denigrates or shows hostility or aversion toward an individual or group. DEFINITION OF BULLYING BEHAVIOR PROHIBITED BY THE FIRM Bullying is unacceptable and unreasonable behavior that demeans, intimidates or humiliates people either as individuals or as a group. Bullying behavior is often persistent and part of a pattern, but it can also occur as a single incident. Bullying behavior may include exchanges that take place electronically, including through email, text message and social media platforms. Bullying is usually carried out by an individual but can also be an aspect of group behavior (see “mobbing” below). The severity of the conduct and the degree of pervasiveness are considered when evaluating whether the conduct meets this definition. The following is a non-exhaustive list of conduct which, depending on the circumstances, may constitute bullying behavior: • Abusive or objectively offensive language; • Insults or unwelcome teasing; • Spreading rumor and innuendo; • Practical jokes or hazing. Mobbing is a particular type of bullying behavior carried out by a group rather than by an individual. Mobbing is the bullying or social isolation of a person through collective unjustified accusations, humiliation, general harassment or emotional abuse. Although it is group behavior, specific incidents may be carried out by an individual as part of mobbing behavior. CONDUCT THAT IS NOT UNLAWFUL MAY VIOLATE THIS POLICY The firm prohibits all conduct that violates this policy, as determined by the firm, in its sole discretion, even if the conduct in question does not rise to the level of unlawful harassment, discrimination, retaliation, or bullying. The firm will take prompt and appropriate action to address any violation of this policy. Any individual who violates this policy, whether or not their conduct violates the law, will be subject to appropriate action, up to and including formal discipline and/or termination of employment. INDIVIDUALS AND CONDUCT COVERED This policy applies to every Bernstein Shur employee as well as persons indirectly connected to the firm such as vendors, contractors, and clients. The conduct prohibited by this policy is unacceptable in the workplace and in any work-related setting outside the workplace, such as business trips, business meetings, business-related social events, or firm-sponsored events. In the event any of the firm’s vendors, contractors, or clients engages in conduct that would constitute a violation of this policy, the firm encourages employees to report such conduct (in the manner explained below). The firm will investigate and respond to such report(s) in the same manner as if the conduct had been committed by an employee. REPORTING VIOLATIONS OF THE POLICY If an Employee believes that they/another person(s) has been subjected to any form of the conduct prohibited by this policy, they should promptly report it to: (i) the Human Resources Director; (ii) the Human Resources Partner; (iii) their supervisor; and/or (iv) any other member of firm management. No Employee who, in good faith, reports a violation of this policy will be subject to any form of reprisal by the firm, regardless of the outcome of the firm’s investigation. When the firm receives a report of a violation of this policy, it will investigate the allegations, as appropriate, in a prompt and objective manner, including in accordance with the firm’s obligations under applicable law. All reports of violation of this policy will be handled in as discreet and confidential a manner as is possible under the circumstances. If the reporting individual believes their report was not handled expeditiously or appropriately, they should contact the Chief Executive Officer or Chief Operating Officer promptly. RETALIATION PROHIBITED Retaliation against an individual who in good faith has reported a violation of this policy, or who has cooperated in an investigation of an alleged violation of this policy, will not be tolerated. For purposes of this policy, “retaliation” includes, without limitation, changes to the terms and conditions of an individual’s employment, demotion, termination, unfavorable assignments, or any conduct that would dissuade a reasonable individual from making a report of a violation of this policy. Any individual who retaliates against someone for making a report of violation of this policy will be subject to appropriate action, which may include, without limitation, termination of employment, formal discipline, or, in the case of a non-employee, cessation of the firm’s relationship with that individual. When the investigation has been completed, the firm will endeavor to inform the reporting party of the results of the investigation, to the extent the firm considers it appropriate under the circumstances. For example, because any disciplinary action that may have been taken is generally a confidential personnel matter, the firm may not disclose to the reporting party the nature or extent of the remedial action taken. The firm acknowledges that false or malicious accusations, especially of sexual harassment, have serious effects on innocent persons. If, after investigating a complaint under this policy, the firm determines that an individual has knowingly and/or maliciously provided false information, it may take appropriate action against that individual, up to and including formal discipline, termination of employment, or cessation of the firm’s relationship with that individual. The firm is confident that complaints of harassment, intimidation, hostility, bullying or discrimination can be successfully resolved internally. However, employees also have the right to file a complaint with the Maine Human Rights Commission (51 State House Station, Augusta, Maine 04333-0051, 207-624-6290) or the Equal Employment Opportunity Commission (475 Government Center, Boston, MA 02203, 1-800-669-4000). Employees are protected by law from retaliation for filing a complaint of unlawful discrimination or harassment with any government agency. | 4/4/2019 | Patrick J. Scully, Esq. |
| United States Attorney's Office, District of Maine | Name of Organization: United States Attorney's Office (USAO), District of Maine Report Date: 11/16/2018 Contact Person: Renée M. Bunker, Assistant U.S. Attorney, and Sexual Harassment Prevention Coordinator Efforts Undertaken or Planned: The Department of Justice (DOJ) has a zero-tolerance policy regarding sexual harassment. DOJ's policy is to treat harassing conduct as misconduct even if it does not rise to the level of harassment actionable under Title VII of the Civil Rights Act of 1964. Several DOJ policies are reflected in memoranda addressing: off-duty conduct; prevention of harassment in the workplace; prohibition on the solicitation of prostitution; and federal workplace responses to domestic violence, sexual assault, and stalking. The listed policies and directives are available at https://justice.gov/policies-and-directives-effect-relating-and-duty-conduct-including-sexual-misconduct. All of the USAO attorneys and staff, including contractors, are required to complete a minimum of one hour of a combination of sexual harassment and non-discrimination or equal-employment-opportunity training each year. Learning objectives for DOJ's Sexual Harassment Prevention and Misconduct Awareness training for 2018 include: (1) reviewing the Department's policies and directives relating to sexual harassment and misconduct; (2) defining sexual harassment and sexual misconduct; (3) defining DOJ's disciplinary policy toward sexual misconduct; (4) defining the responsibilities of DOJ components, managers, and all employees in reporting sexual harassment and/or misconduct; and (5) understanding all of the requirements of an April 30, 2018 policy memorandum from the Assistant Attorney General for Administration on the prevention of sexual harassment and sexual misconduct in the Department. The Department also requires biannual training regarding the No FEAR Act (Notification and Federal Employee Antidiscrimination and Retaliation Act) of 2002, Pub.L. 107-174, 116 Stat. 566. DOJ employees are also required to complete an online training regarding Domestic Violence, Sexual Assault, and Stalking in the Workplace. Although not required by DOJ policy, the USAO for the District of Maine in recent years has conducted some or all of the one hour of sexual harassment/non-discrimination training via mandatory office-wide live presentations. The USAO also has a Sexual Harassment Prevention Coordinator within the office who regularly circulates DOJ materials regarding sexual harassment and misconduct as well as developments within the Maine Bar and local entities on such issues, facilitates training, serves as a point of contact for individuals who may have concerns or complaints regarding harassment or related misconduct, and serves as a liaison to DOJ components. In October 2018, the USAO's mandatory office-wide training included a presentation on implicit bias by Professor Sarah E. Redfield, Editor of Enhancing Justice: Reducing Bias. The USAO is committed to continuing efforts to increase awareness regarding implicit and explicit bias, harassment, or misconduct, and to preventing and timely addressing instances of such conduct. | 11/16/2018 | Renee M. Bunker, Esq.; Appellate Chief |
| Maine State Bar Association | In February and April of this year, the MSBA sent out a confidential survey to its membership titled, “Professionalism, Conduct and the #MeToo Movement: A 6-Question Confidential Survey.” One of the core objectives of the MSBA was to promote the highest standards of professional conduct for all members of the legal profession. To that end, the survey’s goal was to determine whether attorneys in Maine have experienced harassment and/or discrimination in the course of their practice and to encourage an open discussion on this important issue. In an effort to share the survey results and to keep the discussion going, President Susan Driscoll and Executive Director Angela Weston made presentations about the survey around the state throughout the summer and fall. The presentation includes a more in depth review of the results, including refinement and cross tabulation of the data as well as a general review of the types of comments made by respondents. If a group is interested in scheduling a presentation of the survey results, please contact Angela Weston at aweston@mainebar.org. | 11/9/2018 | Angela P. Weston, Esq.; Executive Director |
| Bernstein Shur | 1. Our firm values, provided to all of our employees, stress that we believe in diversity, respect and collegiality. We recruit women lawyers at essentially the same rate as male lawyers and providing a safe work environment for all of our employees, lawyers as well as staff, and men as well as women, is really important to us. 2. To that end, we provide annual sexual harassment and gender bias training to our employees, including our attorneys and staff. 3. We deepened and expanded our training this past year. It was led by two of our senior women employment lawyers, Patricia Peard and Kai McGintee, who led three separate sessions, one for staff, one for associates and one for partners. 4. This year’s training included a very challenging and somewhat disturbing video that represented how harassment can occur in a law firm environment. It provoked a great deal of discussion and reaction. 5. In the training, Pat and Kai also discussed the value of a book entitled “That’s What She Said,” by Joanne Lipman, as a good tool to better understand the challenges women face in the workplace, especially with respect to gender bias. 6. At their suggestion, the firm purchased a dozen or more copies of the book and asked all of our senior leadership (our Board of Directors, our Compensation Committee and our Practice Group Leaders) to read the book. After we read it, we held group book discussions among our firm leaders to discuss our takeaways from the book and how they applied to our firm. We are now encouraging all of our attorneys to read the book – and many have done so. 7. A group of us participating in those discussions have met and developed a list of goals to address gender issues in our office and we are working with our firm’s Diversity Committee to advance those goals. 8. We have had a very few incidents over the past decade of clearly inappropriate behavior involving sexual harassment or bullying. The lawyers and employees involved in the inappropriate behavior were terminated. I think it is fair to say that we have a zero tolerance policy for clearly inappropriate behavior. 9. We are working to find ways to address more subtle behaviors that have an adverse impact on our women employees, such as interruptions in meetings, failing to recognize accomplishments, bias in work assignments and failing to intervene when third parties behave or speak inappropriately. We are also actively looking at ways to assist our women lawyers in meeting the challenges to advancement in the firm. We recognize that progress toward gender balance in firm leadership will help us tremendously in minimizing inappropriate conduct and responding to it effectively. 10. We have a very active mentoring program that provides a safe context for concerns and complaints to be raised and addressed. 11. Finally, our firm submitted comments to the Law Court on the proposed amendment to Rule 8.4 of the Maine Rules of Professional Conduct to recommend stronger language related to sexual harassment and discrimination. | 10/20/2018 | Patrick J. Scully, Esq. |
| Verrill Dana | We are happy to summarize and share Verrill Dana’s efforts to address unprofessional behavior, which includes bullying and sexual harassment. As a firm, we also were shocked at the reports within the legal profession described in Nan Heald’s article in Maine Lawyer ’s Review. With gratitude, we were able to host a MSBA #MeToo Survey Results presentation on July 20th. Not only our people, but also other lawyers from the community, attended this seminar. I think the presentation made it clear that these findings were not vague “other industry issues” but something here in Maine and the broader legal community. At the core of Verrill Dana’s values is mutual respect. With data from the presentation and national reports from the #MeToo movement, we want to be sure that Verrill Dana stands apart with a culture of #NotUs. To us, #NotUs represents a culture where the bar for interactions is not set at the legally required minimum, but goes beyond that to one of mutual respect, inclusion, safety and trust in all interactions. To ensure we reach that goal, we recently developed a multi-phased initiative that encompasses a Harassment Audit (a combination of cultural surveys, identification of harassment risk factors, and recommended changes). We secured a third party consultant to tailor our harassment training to these tenets as well as to be independent, objective and maintain confidentiality. We are in the midst of the first phase. To determine what is valued and defined as respectful behavior for us, our consultant sent a brief confidential survey to everyone. Because no one from the firm could view the results, we set firm-wide incentives for participation. I was pleased when we hit a 90% participation rate. I was more pleased that the consultant’s team felt the responses were candid, thoughtful and forthcoming. Our hope is that the results will provide a definition of respect we agree on, as well as themes of issues we can address together. The training sessions are currently being tailored based on these results. Training Sessions: Our consultant/trainer will educate staff, attorneys, and supervisors on what harassment and sexual harassment is and its impact on all of us, educate and empower both employees and leaders on our reporting processes with bystander intervention training in order to create accountability and awareness around our mutual definition of respect and inclusion. These are mandatory training sessions for all. We are working with the Maine Board of Bar Overseers to get CLE credit for our Maine registered attorneys. The consultant will also train the HR team specifically on continuing this training and implementing this program. Office Hours: Our consultant/trainer will hold office hours that will be confidential. Knowing how the #MeToo movement has triggered past issues for some people and the difficulty with speaking up around this subject, we wanted to provide a safe place should people be reluctant to talk with a member of the firm. Our people will have met and spent time in the training session, so the consultant will be familiar. She will coach people on the firm’s reporting processes and its importance, as well as referring people for counseling through our Employee Assistance Program, if necessary. Obviously, if something is uncovered at any time during the process that occurred at Verrill Dana, we will address it appropriately. We determined it was better to ask and know than not know. The next phases are a true cultural survey, which we can use to benchmark our progress in years to come. The same consultant will administer this survey, assess and make recommendations. The next phase will be facilitated meetings to communicate the results of the survey and its implications. This fluid initiative will evolve as we garner more information and continue to tailor it to our needs. We have other ongoing initiatives that relate to this one. Our Diversity Committee has been training attorneys on unconscious bias and inclusion of all. The ABA’s Goal III: Diversity and Inclusion, and its checklist has helped guide this committee with its agenda. Goal III, as I am sure you know, is “to eliminate bias and enhance diversity and inclusion of traditionally excluded groups within the legal profession.” We look forward to viewing the compilation of what others are doing so we may learn more techniques in order to address this issue. We thank you for requesting the information and broadly disseminating it. | 10/18/2018 | Michele S. Pattenaude, Director of Human Resources |
| Murray Plumb & Murray | · MPM instituted an Anti-Harassment Policy and Reporting Procedure in 2014, which was developed and approved with assistance from KMA Consulting; · MPM has conducted two in-house anti-harassment training sessions with KMA Consulting, most recently in September of 2018; · All new MPM employees must view the Powerpoint version of the live KMA training session, and complete a written quiz on the subjects raised in the training; · MPM requested and received unanimous firm buy-in to comment in support of the proposed change to the Maine Rules of Professional Conduct to add rule 8.4(g), but recommending the Board adopt the (stronger) Model Rule instead; · MPM lawyers attended the RBG documentary at the Portland Museum of Art in May 2018, in support of and to draw attention to the long-standing fight for equal rights for women, including for them to be free from harassment; · MPM instituted a diversity committee in November of 2017 to look at long and short term practices of the firm to ensure MPM continues to embrace employees of all backgrounds. With respect to addressing gender issues and unprofessional conduct, the committee frequently sends out law review, news and research articles on the matter to generate discussion and awareness; and · MPM supported and encouraged all lawyers to participate in and attend the #MeToo survey and results conducted by the Maine State Bar Association. | 10/18/2018 | Meri McArdle, HR Manager |
| John Waldo Ballou Inn of Court (Bangor) | A CLE program entitled "#MeToo and the Maine Bar" will be offered on April 12, 2019 at the Tarratine Club in Bangor. | 9/27/2018 | John Gause, Esq. |
| Maine Trial Lawyers Association | The MTLA conducted two major CLE offerings related to harassment, bullying, and unprofessional conduct: March 23 -- MTLA Annual Meeting 9:30 - 10:30 AM -- Ethics: Harassment, Discrimination, and Conduct Unbecoming... Nan Heald, Esq., Executive Director, Pine Tree Legal Aria Eee, Esq., Maine Board of Overseers of the Bar John David Kennedy, Esq., Eaton Peabody Sarah Irving Gilbert, Esq., Camden Law LLP July 20 -- MTLA 2018 Presque Isle CLE 10:40-11:40 Ethical Conduct Rules and Issues Related to Harassment & Bullying Sarah Irving Gilbert, Esq., Camden Law, LLP Lisa R. Chase, Esq., Pine Tree Legal Assistance J. Scott Davis, Esq., Board of Overseers of the Bar Danielle Conway, Esq., Dean, University of Maine School of Law | 9/27/2018 | Steve Prince, Esq. |
| Maine Office of the Attorney General | The Office of the Attorney General maintains a workplace harassment policy that extends to outside parties having dealings with the Office and to interactions during outside activities related to the workplace. A copy of the policy may be accessed at: https://www.maine.gov/ag/about/harrassment_policy.html In addition, the OAG maintains an Outside Complaint Policy to address complaints from the public about OAG staff. A copy of the policy may be accessed at: https://www.maine.gov/ag/about/outside-complaint-policy.html | 9/24/2018 | Kelly L. Morrell, AAG |
| Rudman & Winchell | Policies for both attorneys and staff include language outlining that harassment of any kind is not permitted or tolerated in our company. In addition, our policy also provides examples of unacceptable employee conduct, including, but not limited to using obscene or abusive language; fighting or threatening violence in the workplace; spreading false rumors or malicious statements designed to incite or promote discontent, including, but not limited to unacceptable conduct; and again sexual or other unlawful or unwelcome harassment. All incoming attorneys and staff acknowledge receipt, review and understanding of these and other policies. Video-taped instruction is also provided to each incoming individual. Annually all attorneys and staff receive notice regarding the Firm’s policy on sexual and other forms of prohibited harassment and unwanted sexual conduct. Each individual is required to acknowledge receipt, review and understanding of the notice. Also included with the annual notice is a link to video-taped instruction, which is available through the Firm’s intranet. | 9/18/2018 | Edmond Bearor, Esq. |
| Troubh Heisler | Since at least 1997, Troubh Heisler has conducted annual training sessions with all attorneys, staff and all other personnel specifically designed to educate on what constitutes sexual harassment (quid pro quo and hostile work environment), review hypothetical examples drawn from Maine Human Rights Commission cases, and specific instruction of each attendees right to be free from such harassment or retaliation for reporting or participating in an investigation. These policies have also been present in our employment manual. Matters covered include further instructions and handouts addressing the Troubh Heisler internal reporting and response policies as well as emphasizing each attendee’s right under Maine and Federal law to file complaints directly with the Human Rights Commission and protection from retaliation. Contact information for the Human Rights Commission is provided. Participation by everyone at Troubh Heisler is mandatory and enforced. In recent years this seminar has been expanded to also emphasize each attendee’s responsibility to avoid discriminatory behavior against other protected classes based on nationality, ethnicity, religion and other classes. | 9/17/2018 | Daniel Gilligan, Esq. |