ABA: “No More Discrimination or Harassment” (Why’d It Take You So Long?)

The New York Times reported today that the American Bar Association (“ABA”), the legal organization historically always late for the party, finally passed an ethics rule that “says it is professional misconduct to discriminate against or harass opposing counsel, or anyone else for that matter, in the course of practicing law.

time for action clock sign

“The ethics rule now forbids comments or actions that single out someone on the basis of race, religion, sex, disability and other factors. Nearly two dozen state bars and the District of Columbia bar have similar rules. But there has been no national prohibition of such behavior, which, many female lawyers complain, results in too many “honeys,” “darlings” and other sexist remarks and gestures toward them while they are trying to practice their profession.”

The ABA is justly proud of its new rule.

The NYT notes that Myles V. Lynk, who leads the ABA’s Standing Committee on Ethics and Professional Responsibility, said during the ABA debate that it needed “to catch up” with the states, which had already adopted such a prohibition. “The states have not waited for the A.B.A. to act. They have been laboratories of change. It is time for the A.B.A. to catch up.”

Takeaway:  Glad to see ya – you’re late.  Where’ve you been?

Appointment, Clock, Countdown, Deadline


Dicta:  A little history is important to put this into perspective.

When the ABA was founded, in 1878, it “automatically” refused to admit women, Blacks, Catholics, Jews, and others.  The ABA excluded woman until 1918, and Blacks until 1943.   One commentator wrote:

“You could become an invitee to membership if you were white, Protestant and native born, preferably with a British surname, and attended the elite law schools such as Harvard, Yale and Columbia; only then did you have a chance of prospering. Catholics, Jews, women and blacks were automatically excluded from membership. This exclusion was necessary to the elite bar’s sense of identity. Any fraternity is defined not only by whom it accepts but also by whom it excludes. The Association also pinned the stigma of immorality on the lower class of lawyers as shysters who talked, dressed and acted differently.”   (See:  https://worldhistoryproject.org/1878/8/21/foundation-of-the-american-bar-association).

The National Bar Association was founded in 1925 “to give voice to black attorneys who were excluded from every nationally organized bar association at that time.”

The ABA opposed child labor laws, many New Deal laws and reforms, and during the McCarthy era in the ’50s, the ABA “voted to expel all ABA members who were members of the Communist Party.”

The ABA has always had a whole lotta catching up to do.  So no one should be surprised that 50 years after women began to enter the profession in greater numbers that the ABA is, again, admittedly playing “catch up.”

“It is time for the A.B.A. to catch up” could be it’s motto – or, to the more cynical, maybe “Dragged kicking and screaming into the future.”

But better late than never!

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]