Catherine A Freeman

Gregory B. LeDonne

Jodi A. Nafzger

Cathy R. Silak

Published October 2021

Several years ago, our Idaho State Bar (“ISB”) membership faced some internal division over whether to adopt a rule that would require lawyers to refrain from discriminatory and harassing behavior in certain instances. Through these discussions, some members questioned whether the rule sought to fix a problem that did not exist: Do Idaho lawyers experience harassment and discrimination?

At that time, there was a lack of objective and quantifiable data about whether—and to what extent—our fellow ISB members were experiencing these types of negative behaviors. To answer this question, the Anti‑Discrimination Anti‑Harassment Committee (the “Committee”), a committee of the ISB Professionalism & Ethics Section (the “P&E Section), decided to embark upon the first Idaho professional climate survey: the Climate of The Legal Profession in Idaho 2020 Survey (the “Survey”).

Simply put, the Survey results illustrate an uncomfortable truth: discrimination, harassment, and bullying are pervasive in Idaho’s legal community. 2 in 5 active ISB members surveyed have experienced discrimination, 1 in 4 have been harassed, and 2 in 5 have been bullied in their legal career in Idaho.[1] Female attorneys experience these behaviors to a disproportionate degree; 50% of our female ISB colleagues have been harassed, 50% have been bullied, and 75% have experienced discrimination.[2]

We cannot dismiss these behaviors as anecdotal and perception‑based. Do Idaho lawyers experience harassment and discrimination? Yes, and at rates that should alarm and concern each of us.

Thankfully, the Survey results also create an opportunity for positive change. Now that ISB members are aware of the issue, we are empowered to take action. Below, this article will provide background on the Survey and detail the results. From there, it will explore ways for all of us to help combat discrimination, harassment, and bullying in Idaho’s legal community.

Background on the survey

The goals of the Survey were threefold: (1) to understand whether a problem of discrimination, harassment, and/or bullying exists within Idaho’s legal community; (2) to provide an anonymous platform to report such problems; and (3) to explore possible solutions. With the support of the ISB Commissioners, the P&E Section engaged the services of the Idaho Policy Institute (the “IPI”) to develop the Survey. The IPI is staffed by Boise State University faculty, staff, and students. The staff provides research and evidence-based practices to meet critical community needs, including for government entities.[3] The IPI generously provided its professional expertise free of charge.

The P&E Section provided input on the Survey components and questions and the ISB Commissioners also reviewed and approved the questions and approved distribution of the Survey to the ISB’s membership via email. The Survey was open for a 2-week period in July 2020. IPI faculty and graduate students then summarized the data findings into an Executive Summary and detailed narrative. The Survey results were provided to the ISB Commissioners in November 2020. The ISB Commissioners approved publication of the results in April 2021, following some amendments requested by 3 of the 5 Commissioners and executed by the IPI.

All active members of the ISB had an opportunity to participate in the Survey. Of the 6,323 members, there were 909 partial responses and 682 completed responses, yielding about a 14% response rate.[4] The Survey authors indicated that a survey population the size of the ISB’s membership needed a minimum of 601 responses to reach a confidence level of 99% with a 5% margin of error.[5] The number of responses exceeded that threshold so the Survey had a 99% level of confidence, meaning that 99 out of 100 samples from the ISB’s membership would produce a similar result.[6]

The confidence level produced in the Survey response indicates the data is not random; rather, the data accurately reflects the attitudes of the ISB membership as a whole.[7] The United States Census Bureau, for instance, routinely uses confidence levels of 90% in its population estimates.[8] To summarize, the results of the Survey can be trusted, and are representative of the climate of the legal profession in Idaho as a whole.

In addition, the demographics of the respondents appears to correlate closely with the demographics of the ISB membership overall.[9] The respondents were 55% male and 38% female, with a majority indicating that they were heterosexual (83%) and Caucasian (82%).[10] Only a small portion of the total number of respondents identified as non‑binary (less than 1%), bisexual (3%) or homosexual (2%), or from any of the following categories: Hispanic or Latino, Asian Pacific Islander, American Indian/Alaskan Native, and African American (2% or less of each).[11] The respondents were most commonly in the 37‑49 years age range (35%), but the ages of respondents were distributed relatively evenly among the age group categories in the Survey.[12]

Based on the above demographics, the Survey results focus on the relationship between gender and discrimination, harassment, and bullying.[13] While the data set prevents us from performing any intersectional review, it is important to acknowledge that a number of personal characteristics, such as age, ethnicity, sexual orientation, could have their own individual and potentially compounding effect on the issues raised by the Survey.

Survey results

According to the Survey results, discrimination, harassment, and bullying impact most of Idaho’s lawyers in some fashion. However, as mentioned above, the ISB’s female members experience each at statistically higher rates than their male counterparts.[14] A majority of our female membership—nearly 3 out of every 4 women—have experienced discrimination, most commonly based on sex/gender, and approximately 1 out of every 2 female members have experienced harassment and bullying.[15] In comparison, approximately 1 out of 6 men have experienced discrimination, 1 out of 8 have been harassed, and 1 of 3 have been bullied.[16]

Sex/gender discrimination is far and away the most common form of discrimination experienced by Idaho’s female attorneys (93%).[17] In contrast, men most commonly experience discrimination based on religion (45%) and secondarily based on sex/gender (37%).[18]

Few attorneys experiencing discrimination reported the discrimination to an authority: only 16% of women and 18% of men.[19] Fear of repercussions for themselves was the most common reason given for not reporting.[20] Respondents were also asked if they had witnessed discrimination against others. 60% of women reported that they had, compared with 34% of men.[21]

The Survey results highlight a stark comparison between the female and male respondents’ experiences of being harassed. More than half of the female respondents have been harassed, but only 13% of the male respondents have.[22] The most commonly reported forms of harassment were as follows: unwelcome remarks, jokes, or using offensive slang terms; unwelcome acts of aggression, intimidation, hostility, or unequal treatment; unwelcome sexual remarks or jokes, sexual advances, propositions, or requests for sexual favors; and acts of aggression, intimidation, hostility, or unequal treatment based upon an individual’s protected class.[23]

Only 22% of males and 22% of females responded that they had reported the harassment, giving reasons such as fear of repercussions, the status of the person who engaged in the harassment, and not wishing to revisit the incident.[24] Women and men both reported witnessing the harassment of others, with approximately 46% of women reporting this and 25% of men.[25]

Almost half of the respondents have been bullied in the practice of law in Idaho, including approximately 54% of female and 35% of male respondents.[26] In addition, a number of individuals—48% of women and 34% of men—have witnessed other people being bullied.[27] The most commonly reported forms of bullying were ridicule or demeaning language, misuse of power or position, implicit or explicit threats, and overbearing supervision or undermining.[28]

The attorneys surveyed indicated that the workplace and the courtroom are the most common places where they experience discrimination, harassment, and bullying.[29] Both men and women reported that they experienced harassment and discrimination at the hands of their managers and supervisors, but they most commonly experienced bullying from their colleagues.[30] However, it is uncommon for either men or women to report incidents of bullying—only 23% of men and 23% of women reported.[31]

The results of the Survey should be concerning to all ISB members and leaders. Notably, more than half of the ISB members in this state have been negatively and directly impacted by discrimination, harassment, and/or bullying. Many individuals will likely find the results of the Survey unsurprising since such a significant number of us have either been the target of or witnessed these negative behaviors. The results provide empirical validation to these individuals’ experiences and show that discrimination, harassment, and bullying are commonplace occurrences in Idaho’s legal profession.

Plans to combat discrimination, harassment, and bullying in Idaho’s legal profession and call to action

As previously mentioned, these results also create an opportunity for positive change. In fact, the individuals surveyed exhibited positive responses to a slew of offered solutions. The solutions that were most desirable to the respondents were as follows: (1) buy‑in from senior leadership to make a change regarding the culture of the profession; (2) ISB providing model policies for discrimination, harassment, and bullying; (3) improved avenues of reporting and better enforcement of policies that address discrimination, harassment, and bullying; (4) ISB recommending or providing a standardized training regarding discrimination, harassment, and bullying; (5) change in voluntary civility standards; and (6) change in the Idaho Rules of Professional Conduct.[32]

Based on the results of the Survey and the request for change from the ISB membership, the Committee has begun to increase education for the ISB membership. The Committee has already provided several CLEs on these issues and is currently planning future CLEs. Additionally, the Committee will strive to host at least one CLE per year in the P&E Section’s lunchtime meetings regarding discrimination, harassment, and bullying. Hopefully, through education, we can help prevent any members of our legal community from facing these issues.

In addition, because the Survey showed that some members desire a rule change to address discrimination, harassment, and bullying in the Idaho Rules of Professional Conduct, the Committee is actively drafting an amendment that it intends on proposing to ISB membership this year.

The issues outlined in the Survey results are not unique to the legal profession or to Idaho. However, as the Idaho Rules of Professional Conduct highlight, attorneys are both officers of the legal system and public citizens having special responsibility for the quality of justice.[33] Because of this, we should be leaders in fostering a legal community that is safer, more respectful, and more inclusive than found elsewhere.

Incidents of these negative behaviors have often been—and continue to be—dismissed as anecdotal and perception‑based. However, the data support the contentions of many: we as a profession need to do better. We encourage each of you to stand up against discrimination, harassment, and bullying; to elect leaders who recognize that these issues are widespread and who are committed to addressing them; and to continue learning about these negative behaviors, their impact on the legal profession and our fellow ISB members, and ways to combat them.

Thank you to the 909 individuals who participated in the Survey. We commend your bravery in sharing your experiences, and we hope this is the first step toward a lasting and positive change in our legal community.

Cathy Silak is a member of Hawley Troxell’s Litigation practice group and focuses on Idaho and
Federal appellate practice and dispute resolution. She began her career with Hawley
Troxell in 1984 and became partner in 1988. From 1989 to 1990 she was Associate
General Counsel of Morrison Knudsen. In 1990 Cathy was appointed by Governor
Cecil D. Andrus as the first woman judge on the Idaho Court of Appeals. She was
appointed in 1993 to the Idaho Supreme Court and became the Court’s Vice-Chief
Justice in 1997. She served on the Supreme Court until 2000, and in 2001 she
resumed her partnership with Hawley Troxell. After serving as the Founding Dean of
Concordia University School of Law, Idaho from 2008-2016, Cathy became Concordia
University’s Vice President of Community Engagement. Cathy has practiced law in California and Washington D.C., and was appointed an Assistant United States Attorney for the Southern District of New York. She also served as a Special Assistant United States Attorney for the District of Idaho.

Jodi Nafzger is the Director of Experiential Learning and Title IX Coordinator at the College of Idaho. Previously she was a founding faculty member at Concordia University School of Law where she taught Criminal Law, Criminal Procedure, Evidence, and Professional Responsibility. She also served as a temporary faculty member at the University of Idaho College of Law. Jodi is a former Assistant City Attorney for the Boise City Attorney’s Office and legal advisor to the police department. Jodi received a Bachelor of Arts from the University of Missouri-Columbia School of Journalism and a Juris Doctor from the University of Missouri-Columbia School of Law. Jodi is a member of the Idaho State Bar’s Professionalism & Ethics Section and the Anti-Discrimination and Anti-Harassment Committee. She also serves on the Board of Directors for Idaho Women Lawyers and the Idaho Council on Domestic Violence and Victim Assistance.  

Catie Freeman is a trial lawyer with Gjording Fouser. Catie is the current Secretary of the P&E Section, the current chairperson of the Section’s Anti‑Discrimination Anti‑Harassment Committee. Catie is also a member of Idaho Women Lawyers and currently serves as the Past President of the University of Idaho Alumni Association.

Gregory B. LeDonne is an attorney and historian. He formerly worked as a prosecutor and government attorney in Boise.

Endnotes

[1] Climate of the Legal Profession in Idaho at 15.

[2] Id. at 3‑4.

[3] Idaho Policy Institute, Boise State University, https://www.boisestate.edu/sps-ipi/.

[4] Climate of the Legal Profession in Idaho, 2020, at 4, https://isb.idaho.gov/wp-content/uploads/Climate-of-the-Legal-Profession-in-Idaho-2020.pdf.

[5] Climate of the Legal Profession in Idaho at 5.

[6] Id.

[7] See id.

[8] See United States Census Bureau, “A Basic Explanation of Confidence Intervals,” https://www.census.gov/programs-surveys/saipe/guidance/confidence-intervals.html.

[9] See id., see also Idaho State Bar Membership Survey at 1‑3.

[10] Climate of the Legal Profession in Idaho at 6‑7.

[11] Id. at 7.

[12] Id.

[13] Id. at 6.

[14] Id. at 4.

[15] Id. at 7 & 9‑10.

[16] Climate of the Legal Profession in Idaho at 7 & 9‑10.

[17] Id. at 7.

[18] Id.

[19] Id. at 8.

[20] Id. at 76‑77.

[21] Id. at 8.

[22]Climate of the Legal Profession in Idaho at 9.

[23] Id.

[24] Id. at 10.

[25] Id.

[26] Id.

[27] Id.

[28] Climate of the Legal Profession in Idaho at 10.

[29] Id. at 8‑9 & 11.

[30] Id. at 4.

[31] Id. at 11.

[32] Id. at 82.

[33] Idaho Rules of Prof’l Conduct preamble (Id. Bar Ass’n 2017).