Ethics Issues re Sexual Conduct and Discrimination

Most lawyers (if not all but a tiny percentage) would say, "I'd never even consider, much less engage in, sexual activity with a client, so why should I take a seminar titled 'Sexual Ethical Issues'"? The ethically responsible answer would be, "Even though you're certain you'd never engage In sexual activity with a client -- and thus have no need to learn about the 'ethics' or lack thereof concerning it, others may construe your ordinary behavior, conduct or attitude as manifesting sexual discrimination, harassment, intimidation, etc. or even as overtures for sexual activity, so taking the seminar would be useful even though it also includes material pertaining to sexual activity." 

The anti-discriminatory, anti-harassment aspect of the seminar focuses on ABA Model Rule 8.4 (or equivalent state-supreme-court rules), defining as "misconduct" any conduct evincing "harassment or discrimination based on… sex …, sexual orientation, [or] gender identity." Those rules are relatively uniform from state to state, but of course, their interpretation is generally a state-law issue rather than a federal-law issue. The sexual activity aspect of the seminar focuses on ABA Model Rule 1.8(j) (or equivalent state-supreme-court rules) governing sexual conduct by a lawyer with (or towards) a client. The content of this latter category of Rules varies quite a lot from one state to the next and a number of states have declined to adopt a rule specifically regulating sexual "activity."

The format of this program is a blend of the lecture method with the Socratic method, extensively involving a high degree of interactive participation and critical analyses of a wide range of issues relevant to the seminar subject in a manner not limited to mere chronological description of particular topics and sub-topics. In other words, the content of each seminar (and the order and extent of emphasis upon particular topics and sub-topics) will be substantially influenced by the nature and extent of interactive participation regarding specific aspects thereof. Depending on the number of participants in a particular seminar, the format usually results in most, if not all, participants verbally engaging in conversational-styled interactive discussion and/or analysis of particular topics in the seminar and also permits interruptions, questions, challenges, etc. throughout the seminar. Think of collegially enjoyable and enlightening round-table discussions. It's a form of learning by thinking in the course of interactively participating rather than learning solely by listening (the latter of which is the lecture method).

This course is designed for attorneys at any level who want to explore ethical issues regarding sexual conduct and discrimination.

Learning Objectives: 

• Refresh what should be every lawyer's common knowledge of unique aspects of the legal profession in contrast to all other professions, occupations, etc.: It's the effect of our Constitution's (and each state constitution's) vesting of "the judicial power" of the sovereign in its "Supreme Court" and its thereby incorporation of the evolutionary nature of the judiciary's common law inherent judicial power (i.e., sui generis power) to define, prescribe, and enforce educational, moral, ethical and civil standards for the practice of law and the status of lawyers as officers of the courts
• Recognize that in exercising such common law inherent judicial power (sui generis power) in an adversarial system created under common law, the supreme court of the sovereign (i.e., the U.S. Supreme Court and each state supreme court) creates structural and functional tools for the administration of justice -- i.e., rules of evidence, burdens of proof, procedural rules, and regulatory control over the conduct of attorneys
• Review that the judiciary generally encourages lawyers to participate actively in the regulatory control over the legal profession and the conduct of lawyers individually. Therefore, attorneys must keep abreast of such disciplinary and regulatory activities and, as much as possible participate (pro bono, of course) in actively and supporting such activities
• Examine types of conduct by an attorney that would constitute (or that might be construed as) harassment or unlawful discrimination regarding sex, gender, or orientation. Generally, there are not wide variations in the content (or interpretation) of the state-by-state versions of ABA Model Rule 8.4, defining as "misconduct" any conduct evincing "harassment or discrimination based on… sex …, sexual orientation, [or] gender identity."
• Explore types of conduct that would constitute (or that may be construed as) "misconduct" involving sexual activity with or towards a client under ABA Model Rule 1.8(j) or under varying state-by-state versions of such Rule (or in states that have declined to adopt any Rule specifically regulating the subject matter)
• Assess how assuming that any Rule or law governing "sex" and/or "sexual orientation" or "gender" ought to be construed by whatever is the current state of medical knowledge on matters such as "XY" and "XX" chromosomes, does the intrinsically pliable nature of terms such as "orientation" and "gender" thereby somehow render such chromosomal terminology pliable (rather than empirical, scientific descriptions of the biological status of males and females) even though the statistical variations (in XY and XX chromosomes) comprise incredibly tiny percentages of deviations from the norm? So, how should we view deviations from that norm? For example, under the Americans With Disabilities Act, such deviations prohibit different treatment unless it were to be reasonably warranted in the context of such treatment. For example, disqualification of a person with a severe peanut allergy from employment requiring close proximity to peanuts would not constitute an illegal form of "discrimination." Could the XX or XY status of a lawyer warrant different treatment without such treatment being deemed violative of the Rule 8.4 prohibition against sexual discrimination?

Course Time Schedule:

Eastern Time: 4:00 PM - 6:00 PM
Central Time: 3:00 PM - 5:00 PM
Mountain Time: 2:00 PM - 4:00 PM
Pacific Time: 1:00 PM - 3:00 PM
Alaska Time: 12:00 PM - 2:00 PM
Hawaii-Aleutian Time: 11:00 AM - 1:00 PM

This course is also being presented on the following dates:

Tuesday, February 11, 2025
Tuesday, February 18, 2025
Tuesday, February 25, 2025
Tuesday, March 4, 2025
Tuesday, March 11, 2025