The Lawyer’s Obligation – by Roger Juan Maldonado
President’s Column, July 2018
May 15, 2018, was the day a lawyer berated workers in a midtown Manhattan deli and threatened to call ICE on them for speaking Spanish, making him an Internet phenomenon. As it happened, it was also the day I became president of the New York City Bar Association. A lot of people have wanted to know what the first Puerto Rican president of the City Bar thought about the incident in the deli.
Of course, like most people I found it jarring that someone would lash out like this, especially in a city as diverse and multilingual as New York, arguably the world capital of tolerance. As a bilingual and bicultural individual, I understand the instinct to speak Spanish to another Spanish-speaking person. It is comfortable for me, even though I am technically stronger in English. Someone may slip into another language for cultural reasons or because the person with whom they are communicating is stronger in it. As a lawyer, I know that as a general matter, the law does not permit “English-only” workplace rules.
I’m also not naïve. People who do these things are out there, and we have seen a certain deterioration of the public discourse over the past few years. What I found particularly interesting was the backlash to the rant. The coverage and commentary of the incident focused extensively on the fact that the individual was a lawyer. Would the same attention have been brought to his profession if he had been, say, an accountant or a management consultant? I feel confident that we were implicitly hearing a broadly-held sentiment that a lawyer should know better, that a lawyer should be held to a higher standard, that a lawyer ought to know what sort of behavior is motivated by discriminatory intent and thus, this particular lawyer’s words and actions went beyond the pale. Indeed, as the public searched for potential recourse, many argued that the lawyer’s license to practice law should be suspended or revoked. Based on the public reaction to this lawyer’s conduct, it appears that members of the public buy into the notion that justice and fairness are simply baked into the legal profession and that lawyers, no matter our practice area or our position, should conduct ourselves accordingly, even when we are acting as private citizens.
Indeed, this public intuition comports with several of the ethical rules that govern lawyers’ conduct. Some of these rules apply only in the course of a lawyer representing a client, but some are more general in application. For example, New York Disciplinary Rules 4.1 and 4.4 say that a lawyer, in the course of representing a client, “shall not knowingly make a false statement of fact or law to a third person” and “shall not use means that have no substantial purpose other than to embarrass or harm a third person.” More broadly, Rule 8.4 says that lawyers cannot “engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer; engage in conduct involving dishonesty, fraud, deceit or misrepresentation; or engage in conduct that is prejudicial to the administration of justice.” The rules underscore a belief that lawyers – and I think, by extension, the bar associations that represent them – are held to a standard meant to safeguard both the client and the public trust. That belief may be what caused the reaction to the lawyer whose intolerable conduct was caught on camera.
In my remarks at the Annual Meeting, one of the guideposts I set out for myself in my role as President of the City Bar was that a just society cannot tolerate the systemic mistreatment of a class of people by reason of the sex, race, or legal status of the members of that class. Because I believe in this strongly, and in light of who I am, it’s easy for me to imagine myself in the shoes of those on the receiving end of that rant in the deli. But I must acknowledge that this is in contrast to what I noted during my Annual Meeting remarks when it comes to the topic of sexual harassment in the workplace. I admitted that I was embarrassed by my lack of awareness of the severity of the problem, and I said that as lawyers, “we have a responsibility to engage in a frank discussion among ourselves, and with others, about what constitutes sexual harassment and what must be done to stop it.” I’m pleased that we began that process recently with a program called “Sexual Harassment and the Law, a Call to Action for Lawyers in the Era of the #MeToo and #TimesUp Movements.”
I am grateful that the City Bar’s “House” can be a gathering place where lawyers (and non-lawyers) can talk about difficult topics and come up with strategies to create a more fair and just society. Sometimes, being lawyers makes these conversations even harder because we are trained to view a problem from all sides. So, where one lawyer may suggest that there be a “registry” of repeat sexual harassers for public viewing, another lawyer may raise due process or false accusation concerns. Where one lawyer may suggest disciplinary action against a lawyer who threatens to call ICE on a restaurant worker speaking Spanish, another lawyer may raise First Amendment concerns. However, there are certain concepts I think most of us agree on, including the notions that uncomfortable conversations are necessary to bring certain realities out of the shadows and that nobody should be retaliated against for asserting rights. Just as an employee should not fear retaliation if she claims that a supervisor harassed her, an immigrant should not fear arrest and deportation if she reports domestic violence or attends a court proceeding. Calling ICE or threatening job loss should not be tools of intimidation and control wielded against those who need to access what should be a fair and just system.
It is the lawyer’s obligation to internalize principles like “a just society cannot tolerate the systemic mistreatment of a class of people,” and the more broadly the principle is stated, the better. It’s not about “Spanish-speaking,” or “women” or “Asian” because the key is not what you or I might relate to. It’s about the right of all people to bring their true selves to the table, assert their rights as human beings, and be treated with respect. As I said on May 15, the rule of law should “benefit all members of our communities, and not just those persons and entities who possess the independent means to access our courts and petition our government.” Most fundamentally, the point is that bullying and preying on the vulnerable are antithetical to the values any lawyer should have, because they are at odds with fairness and equality, which are the foundations of a just society most worthy of our protection.
Roger Juan Maldonado is President of the New York City Bar Association.
