Washington Lawyer

Bar Counsel's Page: Sexual Orientation Discrimination in the Legal Workplace

From Washington Lawyer, January/February 2000

By John Thomas Rooney

barcounsel2In 1991 the District of Columbia Court of Appeals adopted D.C. Rules of Professional Conduct Rule 9.1, which provides: "A lawyer shall not discriminate against any individual in conditions of employment because of the individual’s race, color, religion, national origin, sex, age, marital status, sexual orientation, family responsibility, or physical handicap" (emphasis added). The provision is modeled after the D.C. Human Rights Act, D.C. Code § 1-2512 (1981).

In July 1995 the D.C. Bar Board of Governors created a task force to study the possible existence of discrimination in the legal workplace based on sexual orientation. The Report of the District of Columbia Task Force on Sexual Orientation and the Legal Workplace was approved and issued in May 1999. The task force made its findings based upon a survey of D.C. Bar members and presented recommendations for the D.C. Bar and legal employers. More than half of the gay and lesbian respondents reported their belief that openly gay and lesbian lawyers in their own workplaces are treated equal to heterosexual lawyers in terms of such matters as annual income, advancement within their organizations, and maintenance of positive working relationships with office colleagues.

However, the report cautions that the statistical data also show that gay and lesbian lawyers often work in environments that are hostile to them because of their sexual orientation. Of particular interest are the narrative comments that indicate that there remains a substantial problem of prejudice toward, and unequal treatment of, gay and lesbian lawyers in the legal workplace. Derogatory comments about gays and lesbians are not uncommon, and are considered acceptable in some legal workplaces. Some lawyers, clients, and staff refuse to work with lawyers whom they know or believe to be lesbian or gay.

The report found that some employers intentionally discriminate against gay and lesbian job candidates solely on the basis of their sexual orientation and that few employers make an effort to include gays and lesbians in the pool of applicants. Sexual orientation may also hinder a gay or lesbian lawyer’s professional advancement, as evidenced by the finding that both groups are underrepresented as partners in law firms, which, as the report notes, also has negative consequences in terms of compensation.

The report recognizes that gay and lesbian lawyers receive a less valuable compensation package compared to their heterosexual counterparts where they are not accorded the same family insurance and other benefits available to heterosexual lawyers. In addition, the report notes that many employers do not have in place written policies prohibiting discrimination on the basis of sexual orientation and that those employers with written policies do not always make those policies well known to their employees.

Remedies are available through the disciplinary system, but do not extend to monetary awards or other remedies that could alter the employment status to take into account the impact of prior acts of discrimination. The comments to Rule 9.1 suggest that the processing of complaints by Bar Counsel may be deferred or abated where there is substantial similarity between the complaint filed with Bar Counsel and material allegations involved in other proceedings, such as before the D.C. Office of Human Rights or the Equal Employment Opportunity Commission.

Opinion No. 222 of the D.C. Bar’s Legal Ethics Committee opines that the prohibitions of Rule 9.1 do not extend to D.C. attorneys in jurisdictions such as Virginia and Maryland that do not otherwise prohibit discrimination based on sexual orientation. The dissent of one member of the committee would have concluded that a D.C. attorney who is not licensed to practice law elsewhere, but whose office in support of his practice is located outside the District, violates the prohibitions of Rule 9.1 if he discriminates in employment on behalf of that office. Bar Counsel has not yet had an opportunity to address this issue. To date, no public discipline has been imposed for a violation of Rule 9.1.

The recommendations set forth in the report describe specific measures by which legal employers and the D.C. Bar can help eliminate discrimination based on sexual orientation. The prudent attorney should become familiar with the rule and the report, and implement the recommendations where appropriate to avoid being the subject of a disciplinary complaint.

Disciplinary Actions Taken by the Board on Professional Responsibility
In re Kenneth H. Bernstein. November 2, 1999. The board recommends that the court suspend Bernstein for nine months, with the requirement that he make restitution to a client and take a course on professional responsibility, among other things, prior to reinstatement. The board concluded that Bernstein, in connection with a workers’ compensation matter, charged an illegal fee, commingled client funds with his own funds, failed to deposit entrusted funds into a specially designated trust account, and engaged in conduct involving dishonesty.

In re Matilene S. Berryman. November 16, 1999. The board recommends that the court disbar Berryman for, in connection with a probate matter, misappropriating funds belonging to an estate, commingling estate funds with her own funds, engaging in conduct that seriously interfered with the administration of justice and conduct involving dishonesty, and preparing an instrument giving herself a substantial testamentary gift from a client without first advising the client to consult other counsel.

In re Carrie L. Fair. November 18, 1999. The board recommends that the court disbar Fair for misappropriating estate funds, engaging in conduct prejudicial to the administration of justice and conduct that seriously interfered with the administration of justice, taking an illegal fee, neglecting a legal matter, intentionally failing to seek the legal objectives of a client, and failing to represent a client diligently in connection with an estate matter.

In re Jordan L. Ring. November 19, 1999. In this reciprocal matter from Massachusetts, the board recommends that the court suspend Ring for three months, nunc pro tunc to November 7, 1998. Ring entered into a stipulation with the Massachusetts Bar Counsel that he had engaged in conduct prejudicial to the administration of justice, conduct that adversely reflected on his fitness to practice law, and conduct that served merely to harass or maliciously injure another in connection with Ring’s divorce proceeding.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re Frank T. D’Onofrio Jr. September 17, 1999. In this reciprocal matter from New York, where D’Onofrio was suspended for two years with leave to apply for reinstatement, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re T. Clarence Harper. October 26, 1999. In this reciprocal matter from Maryland, where Harper was disbarred, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed. Harper is admitted to practice before the United States District Court for the District of Maryland, but is not and has never been admitted to practice before the Court of Appeals of Maryland. The latter court found that he engaged in the unauthorized practice of law in Maryland. It has held that the sanction of disbarment, when applied to an attorney not admitted to practice in Maryland, constitutes permanent exclusion from exercising in any manner the privilege of practicing law in Maryland.

In re Bridgette Harris-Smith. October 7, 1999. In this reciprocal matter from Maryland, where Harris-Smith was suspended for 30 days, the court suspended her and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed. Harris-Smith is not and has never been admitted to practice before the Court of Appeals of Maryland. The Maryland court has held that a suspensory sanction, when applied to an attorney not admitted to practice in Maryland, constitutes temporary exclusion from exercising in any manner the privilege of practicing law in Maryland.

In re Richard A. James. October 18, 1999. In this reciprocal matter from Maryland, where James was disbarred, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re David A. Jones. October 7, 1999. In these reciprocal matters from Pennsylvania and Massachusetts, where Jones was disbarred, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re George E. Kersey. October 26, 1999. In this reciprocal matter from Massachusetts, where Kersey was suspended for three months, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Arthur H. Kroll. November 12, 1999. In this reciprocal matter from New York, where Kroll was disbarred, the court disbarred him nunc pro tunc to June 17, 1999. The New York court found that Kroll had falsified expense reports, misappropriated funds from his law firm, and testified falsely in order to cover up his wrongdoing.

In re Gregory B. Macaulay. October 7, 1999. In this reciprocal matter from the United States Court of Appeals for the District of Columbia Circuit, the court publicly censured Macaulay. The federal court reprimanded him for failing to comply with an order appointing him as counsel under the Criminal Justice Act and directing him to file a brief on behalf of the appellant that he was appointed to represent.

In re Richard E. Painter. November 15, 1999. In this reciprocal matter from Maryland, where Painter was disbarred, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Alan F. Post. October 7, 1999. In this reciprocal matter from Maryland, the court suspended Post for 90 days, nunc pro tunc to February 16, 1999. On June 9, 1998, the Maryland court suspended Post indefinitely with leave to apply for reinstatement after 30 days for engaging in conduct prejudicial to the administration of justice by failing to remit payroll taxes or to hold taxes in trust for the federal government and for using funds withheld from employees’ wages to pay business expenses of his firm. On October 7, 1998, the Maryland court issued a second order, extending the suspension by 60 days on consent for failing to place funds in which another attorney and he had competing interests in an account that complied with the Maryland escrow requirements. Respondent was reinstated in Maryland on November 10, 1998.

In re Liang-Houh Shieh. October 7, 1999. In this reciprocal matter from California, the court disbarred Shieh. The California court disbarred Shieh for engaging in conduct that seriously interfered with the administration of justice and acts of moral turpitude, failing to report substantial court sanctions to the state bar or to maintain respect for courts, pursuing unjust litigation, and commencing or continuing legal actions from a corrupt motive of passion or intent in connection with numerous civil cases in which Shieh was a litigant.

In re William E. Sumner. September 9, 1999. In these reciprocal matters from Georgia, where Sumner was disbarred, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Gregory L. A. Thomas. November 12, 1999. The court disbarred Thomas for misappropriation; commingling; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; failing to keep a client reasonably informed, to comply with requests for information, to notify promptly a third party of the receipt of funds in which the third party had an interest, or to deliver promptly funds to a third party entitled to receive them in connection with a personal injury/workers’ compensation matter; and for failing to keep complete financial records of entrusted funds in connection with an insurance matter.

In re Douglas D. Wilson. November 12, 1999. In this reciprocal matter from Maryland, the court disbarred Wilson nunc pro tunc to November 25, 1997. The Maryland court disbarred Wilson by consent based upon his conviction in the United States District Court for the Western District of Virginia of impairing or impeding the Internal Revenue Service in the administration of the law and aiding and abetting tax evasion.

In re Robert S. Wolmer. October 7, 1999. In this reciprocal matter from New York, the court publicly censured Wolmer. The New York court censured Wolmer for falsifying a résumé to prospective employers.

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Reports and recommendations issued by the Board on Professional Responsibility, as well as informal admonitions issued by the Office of Bar Counsel, are posted on the D.C. Bar Web site at www.dcbar.org. Court opinions are printed in the Atlantic Reporter and, for decisions issued since mid-1998, are also available online. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/ dccourts/appeals/opinions_mojs.jsp. Please note that in some cases Bar members may have the same name. To confirm the identity of individuals who have been subject to discipline, contact the D.C. Bar Member Service Center at 202-626-3475 or membership@dcbar.org.