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2015 NJSBA Annual Meeting Family Law Track

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2015 NJSBA Annual Meeting Family Law Track 2015 NJSBA Annual Meeting Family Law Track Family Law Matters Involving LGBT Litigants ---Promoting Fairness in the Law Co-Sponsored by the Family Law Section Moderator/Speaker: Stephanie Frangos Hagan, Esq. Donohue Hagan Klein & Weisberg, LLC, Morristown Speakers: Justice Virginia Long (retired) Fox Rothschild, LLP, Princeton Hon. Karen M. Cassidy, A.J.S.C., Union County Hon. Donald A. Kessler, J.S.C., Essex County Robyn Gigl, Esq. Stein, McGuire, Pantages & Gigl, LLP Emily A. Kaller, Esq. Greenbaum Rowe Smith & Davis, LLP, Woodbridge Asaf Orr, Esq. National Center for Lesbian Rights Nina C. Remson, Esq. Nina C. Remson, Attorney at Law, LLC, Hackensack Linda Mainenti-Walsh, Esq. Einhorn Harris Ascher Barbarito & Frost, PC, Denville © 2015 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. The material contained in these pages is for educational purposes only and not intended as a substitute for the professional services an attorney would normally provide to a client, including up to the minute legal research. OVERVIEW Often times, discrimination is subtle and sometimes even unintended. It appears to stem from a lack of awareness and experience in dealing with LGBT litigants. This may be partially due to LGBT litigants remaining closeted because of the stigma attached, even today, being LGBT brings a fear of discrimination….so it's a vicious cycle. Even when intended, discrimination is likely to be subtle which is why it's important to be "tuned in" because nothing can be done about it if it's not recognized "Outing" Can be a form of Harassment. If the judge hearing the case does not have a heightened awareness of what it means to be outed, that judge may not find that this conduct rises to the level of harassment. It’s important when representing LGBT clients to establish the harm that outing can cause and the impact on the client. Being ‘out’ is a personal decision that must be made at the right time for that individual. The timing of the individual's coming out can have a great impact on many facets of his or her life, including children, parents and other family members, work, neighbors, housing and more. When a person is not prepared to come out, being threatened with outing or being actually outed may have severe negative consequences for that person and can be extremely stressful. There is no doubt that such a threat or an actual outing is harassment and it's calculated to harm the person who is outed or to coerce that person in some way. Even simply posting the list on the board outside the courtroom may result in the court inadvertently outing litigants. RPC 8.4(g) provides that it is professional misconduct for a lawyer to engage, in a professional capacity, in conduct involving discrimination (except employment discrimination unless resulting in a final agency or judicial determination) because of race, color, religion, age, sex, sexual orientation, national origin, language, marital status, socioeconomic status, or handicap where the conduct is intended or likely to cause harm. 1. It must be in a professional capacity 2. It must be for one of the stated reasons 3. conduct must be intended or likely to cause harm It includes: 1. conduct that occurs in the courthouse, related to the litigation or treatment of court staff 2. conduct outside of court that is related to the practice of law, whether or not related to the litigation (treatment of other lawyers and their staff) 3. bar association activities 4. activities in the law office It does not include: 1. purely private activities of the attorney (although some other ethics rules may apply to that conduct) 2. employment discrimination unless there's already been an adverse agency or judicial ruling against the offending attorney Discrimination is broadly construed – includes: 1. sexual harassment 2. derogatory or demeaning language 3. any conduct towards the named group that is both harmful and discriminatory LGBT Trial Court Scenario – Issues Presented Sexual Orientation vs. Gender Identity – These are separate concepts that are confused by many people. Sexual orientation deals with who a person is physically attracted to; gender identity is a person’s innate, deeply-felt identification as a man, a woman, or some other status, which may or may not correspond with to their external body or sex assigned at birth. Snide/Rude Remarks – Just as you would not think of making rude or insulting remarks about an adversary’s race, ethnicity or gender, no such remarks show be made concerning an adversary’s sexual orientation or gender identity. Comments on a person’s appearance post-transition, may not be offensive, but can intentionally or unintentionally cross a line where they become inappropriate. Names & Pronouns - First in terms of how you address Scott/Zelda the likelihood is that you address Scott as Scott because that is the way he is still “presenting.” It is fine to inquire of Scott how he prefers to be addressed at this point. Does he want to be referred to as Scott or Zelda and that will dictate which pronouns you should use. The same would be true of a transgender client and/or litigant. In terms of what to say, since this is a formal conference, it is probably best to simply wish him well and leave it at that. Things not to say – “you are going to make one ugly woman” – a lawyer, did in fact say that to me “jokingly.” Bathroom Issue - Although bathroom usage is not specifically addressed in N.J.S.A. 10:5-12a., the employment sub-section of the statute, it is addressed in the public accommodation provision of the statute, N.J.S.A. 10:5-12f., which specifically mandates that when the use of public accommodation is restricted to one gender, individuals must be admitted based on their gender identity or expression. Additionally, the New Jersey Division on Civil Rights, which is statutorily charged with enforcing New Jersey’s Law Against Discrimination (N.J.S.A. § 10:5-6) has taken the position that an employee is entitled to utilize the bathroom or locker room consistent with their gender identity or expression. See, N.J. DIV. ON CIVIL RIGHTS, GETTING THE EDGE IN COMPLIANCE: EQUALITY AND DIVERSITY FOR GLBT EMPLOYEES 36 (2008). Inadvertent incorrect pronoun usage - It happens; apologize and move on. Pronouns are always the hardest things to get right, especially if you have known someone for a lengthy period of time. For the most part they are used without a great deal of thought, whereas using a person’s name does require some forethought. Questionable and/or intentional incorrect pronoun usage -There is a distinction between inadvertent conduct and intentional conduct. From the Judge perspective, a judge has control of courtroom and all within it. The Code of Judicial Conduct, Cannon 3A.(3) provides as follows: A Judge should be patient, dignified, and courteous to litigants jurors, witnesses, lawyers, and others with whom the Judge deals in an official capacity, and should not permit lawyers, court officials, and others subject to the Judge’s direction and control to display impatience or discourtesy or to detract from the dignity of the Court. RPC 8.4 - Misconduct It is professional misconduct for a lawyer to: Subsection (d) – engage in conduct that is prejudicial to the administration of justice * * * Subsection (g) – engage, in a professional capacity, in conduct involving discrimination (except employment discrimination unless resulting in a final agency or judicial determination) because of race, color, religion, age, sex, sexual orientation, national origin, language, marital status, socioeconomic status, or handicapped, where the conduct is intended or likely to cause harm. RPC 8.4 Rule Comment – Purpose of 8.4 The official comment by the Supreme Court (May 3, 1994) indicates that the purpose of Subsection g of RPC 8.4 is intended to make discriminatory conduct unethical when engaged in by lawyers in their professional capacity. This includes activities in the lawyer’s office/firm, Bar association/Bar activities and Bar organizations, courtroom, adversary’s offices; any activities related to the practice of law inside or outside the courthouse whether or not related to litigation; treatment of other attorneys and their staff. The term “discrimination” according to the Comment “is intended to be construed broadly to include sexual harassment, derogatory or demeaning language and generally, any conduct toward the named groups that is both harmful and discriminatory.” Jury Issue – Was a cautionary instruction necessary/appropriate? Should the instruction have disclosed Zelda’s transgender status? Should Zelda have asked for a mistrial and how should the judge decide her motion? VIGNETTE Scott Carraway and his adversary, Thomas Buchanan, appear for a case management conference. Tom Buchanan has known Scott for 15 years, including having tried cases with him. Scott has also regularly appeared before Judge Meanswell. Carraway: Tom, listen I’m going to need to ask Judge Meanswell for some additional time before we end discovery. Buchanan: What’s up? Carraway: I’m having some surgery. I will be out for about five weeks. Buchanan: Hey, sorry to hear that. Nothing serious I hope? Carraway: Well may as well tell you since you’re going to find out anyway. Tom, I’m transgender and when I return I’ll be Zelda. Buchanan: Very funny. You’re joking right? Carraway: No. I’m serious. Buchanan: Geez Scott, you always seemed like a regular guy.
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