Risk-averse by trade, most attorneys easily recognize the line between appropriate and inappropriate professional conduct. But when dealing with clients, law firms are sometimes willing to blur that line.

Numerous women told The Recorder affiliate Corporate Counsel that sexual harassment by clients is not uncommon in the legal industry, with stories ranging from uncomfortable comments to repeated unwanted propositions to assault.

Women often don't report these incidents, fearing retaliation or lack of support from their firms, many of which do not have policies against client harassment.

Women who did tell someone at their firm about business development-related harassment often had their concerns dismissed. That's what happened to one female lawyer, who preferred to remain anonymous, when she reported an experience of inappropriate conduct to a firm colleague.

She was a midlevel lawyer at a large law firm, interested, like most associates pursuing partnership, in building a book of business. He was a senior attorney at an out-of-town firm who had referred a client to her and, based on her performance, said he looked forward to referring more work. The two met for drinks at his hotel to discuss additional business opportunities.

But things escalated when he pressed her for sex and became aggressive. She managed to escape, and relayed what happened to the senior partner with whom she had worked for almost a decade. Expecting support from her mentor and colleague, instead she said he brushed her off, saying her story was not credible because she was “not that hot.”

Almost every woman interviewed said they experienced or knew women who experienced client harassment. Only one said she'd seen a firm drop a client, in a case of serious harassment.

“I don't know any one of my female friends who have been in a law firm or even in-house who haven't seen or experienced that,” said Jean Lee, president and chief executive officer of the Minority Corporate Counsel Association.

A Barrier to Business Development

In 2017, around 20 percent of equity partners were women, a number that has hardly changed in recent years. Some women said that's partly because of the unique challenges female lawyers face when cultivating new client relationships, such as harassment and misinterpreted invitations to business-related dinners or drinks.

“A lot of business is developed socially. So if I'm a counsel or new partner and I really am seeking to build my profile in whatever my practice area is and I'm taking potential clients out for dinners or lunches, a line can often be very blurry,” said Gwen Mellor, a partner and law firm management consultant at the Zeughauser Group. “And so I think all along the development of an attorney, you can face challenges with regard to clients. You want to be seen as smart and directive, but also kind and interesting to work with. It can be very tough. Very tough.”

In recent years, the pressure to build business has been particularly high. Many firms are just starting to see a post-recession increase in demand for legal services. But there's more competition for that work than ever. Increasingly cost-conscious clients are handling matters in-house, automating legal work or turning to alternative service providers.  

Lee said the harassment taken for granted as part of business development influenced her decision to leave firm work for an in-house position.

“That was one of the No. 1 drivers for why I didn't want to be at a firm,” she said. “I didn't want to do business development. Especially as an Asian-American woman … there is a certain stereotype that follows you and when you speak up you get more backlash, because they don't expect you to do that.”

A survey from the International Bar Association conducted by legal research firm Acritas found clients were behind nearly one in five instances of sexual harassment or assault, based on results as of November 2018.

But many lawyers don't report client harassment, fearing they'll be forced off the case, kept off of future career-advancing opportunities and labeled a troublemaker. Such fears are not unfounded. Melissa Hazell Davis, a senior associate at Griesing Law, said she's seen female lawyers experiencing client harassment who “came forward and were blacklisted.”

“I think this does go on as you would imagine, and I think certainly law firm partners can help to buffer the situation,” added Debbie Epstein Henry, the founder of DEH Consulting, Speaking and Writing. “I think many [partners] are very worried about saying anything because, while they are very aware of maybe their client's behavior being inappropriate, they also are so nervous about jeopardizing the relationship. Even though that should not be the case, that is the reality.”

A Lack of Policies, Procedures

Reluctant to antagonize clients, few law firms have policies in place to address inappropriate client behavior. Of the more than 50 firms contacted about third-party harassment policies, only four—Stroock & Stroock & Lavan, Cooley, Much Shelist, and Ogletree, Deakins, Nash, Smoak & Stewart—said they have policies in place. The others said they did not have them, declined to comment or did not respond.

Lee said she has also not heard of in-house legal departments with policies specifically against the harassment of outside counsel.

“Having clear policies with respect to what to do if you're harassed by a client is critical, and I think that's something many firms don't have,” said Marcie Borgal Shunk, the president and founder of the Tilt Institute Inc., a legal intelligence firm. “They're not specifically having that conversation and explaining to their partners or their associates how to handle that type of situation.”

Protocols drafted before a real-life situation arises can help firm leaders make the right choice, added KK Advising founder Katherine Kimpel.

She said even firms that “want to get it right tend to mess up” if they don't have protocols in place beforehand because there is “a ton of pressure, certainly around high-value clients, to not handle things as thoroughly, professionally and frankly, as decisively as an outside-of-the-moment scenario that most people would deem inappropriate.”  

Kimpel added that it's helpful to standardize check-ins with attorneys after business development meetings, asking how it went and if anything inappropriate happened. A quick check “reinforces this is something that the organization cares about.”

Firms can also prevent harassment by enforcing a buddy system for client development meetings so associates aren't left alone, Campbell suggested.

Henry said policies immediately removing attorneys with harassment claims from a client's case is not always the best option, as it may hurt their career and may not be their preferred recourse. Instead, keep the process transparent, she said—ask the attorney how he or she feels most comfortable proceeding.

Some may choose to continue on the case, but limit in-person interactions or direct communications with the client. Others may want to stay on but avoid alone time with the client. And some may take the option to leave the case, but confirm their interest in similar caliber cases with different clients.

If allegations are proven and serious, firms should consider dropping the client, advised Roberta Liebenberg, a senior partner at Fine, Kaplan and Black.

“The bottom line is that you may have to drop a client, just like you may have had to drop a client if the client said, 'I don't want a woman lawyer representing me or a minority lawyer.' I mean, those are sticky issues for law firms, but I think the law firms that lead by that moral code are going to be the ones that are going to attract women and diverse attorneys,” she said.

Lawyers and consultants agreed it's important that, regardless of the immediate steps taken after an allegation is made, attorneys do not face retaliation for reporting harassment or assault. That includes refusing to staff a woman who reports harassment on future matters with male clients.  

Legal, Recruitment Risks

Retaliating against or ignoring attorneys who speak up against client harassment may have become harder in the #MeToo era, as top legal talent increasingly demands firms create safe and equal work environments for all genders.

Last month, students at Harvard Law School launched a boycott against Kirkland & Ellis over the firm's mandatory arbitration policy, which prevents employees from suing the firm over matters including harassment or assault. Kirkland dropped its forced arbitration clauses for associates and summer associates less than two weeks later, followed by Sidley Austin, which was not a focus of the boycott. Sidley declined to comment on whether it has a policy against client harassment, and Kirkland did not respond.

In December, women's groups from eight elite law schools, including Harvard, Yale and Stanford, said they would no longer accept funding from firms with mandatory arbitration agreements and would not promote them to students.

Hazell Davis and Kimpel said emerging legal talent may not want to work at firms where clients who sexually harass and assault lawyers are given a pass, with negative consequences for attorneys who speak up.

“Even if there isn't the ethical imperative felt by senior leaders in a firm to address these issues in a more proactive and thorough manner, there's the external impetus now, which is that the upcoming classes of associates are much more likely to speak up when they experience inappropriate behavior and to demand that the firms do something,” Kimpel said.

Firms who brush off attorneys' serious allegations against clients are also at legal risk from the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, said Kerrie Campbell, founder and CEO of KCampbell-Law.  

The EEOC states an employer “will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.”

The Need for Training

Many GCs contacted for this story noted that client harassment scenarios in training can be helpful. Training on where and how to report harassment or assault from clients “multiple times in a variety of ways is critical,” Mellor said.

But Campbell and others said they have seen few, if any, firm trainings addressing client harassment. That includes trainings for management-level attorneys, who may be the first line of reporting for associates experiencing sexual harassment.

Training lawyers at all levels can prevent sexual harassment from escalating by teaching partners early signs. Kimpel said in cases where a lawyer is being harassed by a client it is “pretty hard to miss something is wrong” as the individual gets more distressed.

Training can also help management guide and support associates approaching them with allegations against a client.

“If you're training from the bottom up, from associates, you also want to be training and retraining and raising awareness among the partners,” Mellor said. “Because if and when there is a situation that arises, you really want to try and ensure that the partner who may be approached with these difficult situations, that they really are mindful of their reaction.”

Hazell Davis has worked with attorneys whose claims of client harassment were greeted with laughs and jokes from older partners, a response she said “is not a way that instills confidence in the associate that you are on their side.”

And that can have a lasting effect. In such cases, Hazell Davis said she usually advises attorneys to begin searching for a job at another firm, one where their safety is valued over bringing in clients.

“On a large scale, you feel like the firm has failed you because they're not properly responding to your concerns. You feel blacklisted,” she said. “You're no longer on the good assignments so you don't like your job. And your work starts deteriorating because you don't feel like the firm has your back.”