New York Lawyer
April 11, 2002

Q:
An associate in our tax department is having an affair with a partner in our litigation department. Both are married; both have kids. This relationship is not breaking any of our guidelines about firm romances/sexual harassment but it is causing tongues to wag, people to become uncomfortable and distracted. People know their spouses and it�s embarrassing, to say the least.

They are pretty indiscreet: someone saw them kissing in the parking lot late one night, and at a firm picnic she wore his shirt around. Should anyone do anything about this? Is it nobody�s business?

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A:
There are two concerns here: the informal, organizational one and the legal.

Informally within the firm, both lawyers are bound to lose respect. These attorneys put everyone on the spot because it makes people feel disloyal towards the spouses and just plain uncomfortable. Both lawyers� leadership and influence in the firm are bound to be tainted, although given society�s continuing double standards, the woman probably runs more risk to damaging her reputation than the man. (I�ve talked to many people who say that some philandering males still seem to be able to benefit from a certain swashbuckling image.) At the very least, the partner and associate should be told to knock off the public displays of affection and wardrobe swapping. But it�s probably counterproductive to forbid two adults from doing what they want, regardless of their marital status.

The legal view is a little murky but still worrisome. Paul Buchanan, chair of the labor and employment group at Portland, Oregon-based Stoel Rives, says this scenario is more of a risk in a partnership than it would be in a corporation, and therefore the man�s partners should weigh in and warn him against this kind of behavior.

�I think a firm should take a pretty heavy hand with this partner,� says Buchanan, �even if no policy is being broken. The firm�s management should advise the partner that he�s putting the firm at risk by engaging in this kind of conduct, and that he�s undercutting his ability to be what partners often forget they are: a manager.� After all, he points out, �if this relationship goes sour, he�s always going to be open to the accusation that whatever happens to this woman, it will because the relationship went sour. There�s always going to be the ability to try to link it to this associate.�

Along with giving the partner a Dutch uncle talk, Buchanan advises, the firm should clearly communicate to the associate the substance of the firm�s sexual harassment policy, and tell her that if anything resembling sexual harassment or coercion occurs, she should let the firm know. Taking these proactive steps can help shield the firm from at least some liability should litigation occur. �Hiding from it because it�s shameful and difficult to talk about is the worst thing an employer can do,� he says.

The bottom line for Buchanan: �It�s unprofessional -- and risky -- for a partner in a law firm to engage in that kind of behavior.�

Sincerely,
Holly English
Principal Consultant, Values at Work