Last year, a Twitter thread addressed women and asked this question: How would your life change if men had a curfew at 8 p.m.? In other words, what would it be like if women could go out at night without the fear of being harassed or assaulted? How would a woman’s life change if she felt safe?
These questions reveal the truth of living in our world as women: we are not safe. That lack of safety limits our freedom. Either consciously or subconsciously we make choices based on our risk every day. This risk is at least partly the result of a culture of male entitlement that assumes a justified power over us. This culture was recently on display in a case before the Disciplinary Board: ODC v. Lynch.
This discussion of the Lynch case is not intended to generalize that all men, or all male lawyers, are promoters or participants of a toxic culture that deprives women of their agency. It is also not intended to minimize or ignore the threats to the safety of others, based on race, ethnicity or sexual orientation. The Lynch case, however, provides a stark example of this issue and how the disciplinary system in Pennsylvania dealt with it. It also demonstrates why a Rule of Professional Conduct prohibiting discrimination in the practice of law is essential to establishing the values of equality and equity in our profession.
As background, in 2016, the American Bar Association (the ABA) adopted Model Rule of Professional Conduct 8.4(g), broadening the definition of attorney misconduct to include: “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.” Prior to the adoption of 8.4(g), the Model Rule contained a comment defining a violation of 8.4(d) to include harassment and discrimination.
After a lengthy note and comment period where multiple versions were considered, Pennsylvania adopted a version of the ABA rule that was to go into effect on Dec. 8, 2020. See, 50 Pa. B. 3011, Amendment of Rule 8.4 of the Pennsylvania Rules of Professional Conduct. However, in Greenberg v. Rafferty, 491 Supp. 3d 12 (E.D. Pa. 2020), a federal court declared that the rule violated the First Amendment and enjoined it from being enforced. The Pennsylvania Supreme Court and the Disciplinary Board appealed, but later dismissed its appeal opting to amend. The court amended the rule to its current version, providing that it is “professional misconduct” for a lawyer to: “in the practice of law, knowingly engage in conduct constituting harassment of discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status.” The court adopted the amended rule without a public comment period. See 51 Pa.B. 5190 Amendment of Rule 8.4 of the Pennsylvania Rules of Professional Conduct (Jul. 26, 2021); Pa. R.J.A. No. 103(a)(3) (allowing the court to bypass public comment periods in “exigent” circumstances). The rule includes comments that illustrate and gives guidance on the substantive rule.
The plaintiff in the Greenberg matter again raised a constitutional challenge, and the matter remains in litigation. In response to the revised rule, the plaintiffs have filed an amended complaint. See Greenberg v. Haggerty, 20-CV-03822 (E.D. Pa.) DKT. No. 49. At the time of the writing of this article, the parties motions for summary judgment had just been argued.
The misconduct in the Lynch matter consisted of a campaign of harassment against a woman because she declined to become romantically involved with then-attorney William Lynch. Lynch explained that he acted out of “anger” at this rejection. Lynch first met his victim in August 2019. On Sept. 5, 2019, Lynch sent Ms. S sexually explicit text messages. Ms. S objected to these messages and made clear that she was not interested in a romantic relationship with Lynch. For the next several days, Lynch sent Ms. S a barrage of “sexually explicit and derogatory text messages,” left her threatening voicemails in which he threatened to come to her work, told her he had many firearms in his possession, threatened to sue her, and threatened to use his law license and contacts to have her deported. On Sept. 7, 2019, Ms. S told Lynch never to contact her again. For the next week, Lynch sent Ms. S “more than 90 text messages that were sexually explicit, inappropriate, disparaging and threatening.” As a result, Ms. S was afraid to go to her office, sold her car so it would not be recognized, and bought a gun. She testified that she was permanently scarred by the experience.
On Sept. 11, 2019, when Ms. S reported this conduct to the local police; Lynch was arrested the next day. On Dec. 18, 2019, Lynch was charged with stalking in violation of 18 Pa. C.S.A. Section 2709.1(a)(2), a misdemeanor of the first degree; harassment in violation of 18 Pa. C.S.A. Section 2709(a)(4), a summary offense; and disorderly conduct in violation of 18 Pa. C.S.A. Section 5503(a)(4), a misdemeanor of the third degree.
On Feb. 4, 2020, Lynch pleaded guilty to the stalking charge in the Chester County Common Pleas Court to: (a) Count 1, stalking in violation of 18 Pa. C.S.A. Section 2709.1(a)(2), a misdemeanor of the first degree. He was sentenced to two days to 23 months in prison. He was also ordered to receive a mental health evaluation and follow all treatment recommendations. He served two days and remained under probation supervision for the balance of the time.
Because RPC 8.4(g) was not yet in effect, the Office of Disciplinary Counsel brought charges against Lynch based on the criminal conviction, which by itself is sanctionable misconduct. Because of the severity of the misconduct, the Office of Disciplinary Counsel sought and obtained an temporary suspension 0rder, effective Aug. 12, 2020. On Aug. 17, 2020, the Office of Disciplinary Counsel filed a petition for discipline alleging violations of Rule 8.4(a), which defines misconduct as the violation of a Rule of Professional Conduct, 8.4(b), misconduct through criminal conviction and 8.4(c) misconduct through dishonesty. At the time, Rule 8.4(g) had not yet gone into effect. Prior to the hearing, Lynch admitted the violations and the only issue was what sanction should be imposed. In explanation, Lynch offered that he had acted in “extreme anger.” Mental health professionals testified that he “ha(d) a clearer recognition that his anger had been out of control and that his conduct had been excessive.” Lynch expressed remorse about his conduct but did not acknowledge the permanent trauma his victim had suffered.
The Hearing Committee found that Lynch “‘showed a complete disrespect for the legal system’ and used ‘his position as an attorney to prey upon Ms. S.’” Despite these strong words, the Hearing Committee recommended a suspension of only one year and one day, retroactive to Lynch’s date of temporary suspension. Upon review, the Disciplinary Board rejected this result, instead recommending a three-year, nonretroactive suspension, which the court approved on Jan. 6.
Three years’ suspension with no retroactivity is a harsh sanction. The maximum amount of suspension in Pennsylvania is five years. Lynch’s actual suspension began in August 2020; it will not expire until February 2025. Any attorney suspended for more than one year must seek reinstatement and bears the burden of proving their rehabilitation by clear and convincing evidence.
In its report, the board clearly and correctly stated that a person who acts intentionally to terrorize another human being is not fit to be a lawyer. But the board missed this one point: Lynch’s explanation of his misconduct as caused by his poor “anger management” is not an explanation that mitigates the need for discipline; it is an aggravating factor that shows discriminatory intent. Lynch assumed that anger was justified by Ms. S’s rejection of his advances. This assumption of entitlement is the basis of the discriminatory harassment that hinders and endangers women in their personal and professional lives, including women lawyers. See, “Walking Out the Door-The Facts, Figures and Future of Experienced Women Lawyers in Private Practice,” Liebenberg and Scharf, published jointly by the American Bar Association and American Lawyer Media Intelligence, November 2019; see also ABA Commission on Women in the Profession, The Unfinished Agenda: Women and the Legal Profession 18-19 (2001) (citing survey results indicating that one-half of two-thirds of women lawyers experienced or observed sexual harassment) and New York State Jud. Comm. on Women in the Courts, Gender Survey 2020, at 7-8, 22-24.(Relaying survey results of 5,000 attorneys where close to half of female attorneys reported that they were subject to unwelcome contact, one quarter suffered unwelcome physical contact, and 44% sometimes experienced verbal or nonverbal harassment.)
We will never know whether a violation of Rule 8.4(g) would have increased Lynch’s already harsh sanction. However, the benefit of applying Rule 8.4(g) to this case is that it would have made clear that the court was not just condemning criminal conduct, but was also condemning the type of sexual harassment that the profession will not tolerate. This framework would have made clear that Lynch’s anger and his poor “management” of it are aggravating factors that support a harsher sanction, not mitigating factors that justify leniency.
Currently, Rule 1.8(j) prohibits sexual relationships with clients. But no rule protects against sexual harassment of colleagues, staff, court or bar association personnel, or members of the public. Rules that prohibit conduct are an expression of society’s values. The board and the court’s condemnation of conduct by attorneys that threatens, diminishes and demeans an individual’s agency and ability to succeed must be specifically expressed. Rule 8.4(g) expresses this condemnation and supports the values of equity and equality, while providing adequate notice of what behavior is sanctionable.
Ellen C. Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.
Amy J. Coco, a shareholder at DiBella Weinheimer, focuses her practice on representing lawyers, judges and law students; including in civil litigation matters, ethics and professional responsibility representation and counseling. She serves as the Pennsylvania Bar Association’s woman at large governor, vice-chair of the PBA’s diversity equity and inclusion team and vice-chair of the PBA’s legal Ethics and Professional Responsibility Committee. She is also the director of Pitt Law School’s Incubator program helping lawyers set up solo practices.
Reprinted with permission from the March 3, 2022 issue of The Legal Intelligencer. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.