ABA Seeks to Combat Discrimination, But Clients May Hold the Keys to Progress

12 September 2016 Labor & Employment Law Perspectives Blog
Author(s): Christopher Ward

We normally devote our small corner of the internet to updating you on the latest developments with the goal of helping employers do the right thing, most often from a legal compliance standpoint, but occasionally from a broader social perspective. In short, we are here to help you.

From time to time, we look to our clients when determining how to do the right thing as well. For the business of the practice of law is nevertheless a business, and our profession faces the same social challenges all businesses do. Yet we have an additional wrinkle – ethical obligations to advocate for our clients. A tension brews in this space, and if it ever bubbles up, we as attorneys may need you to point us in the right direction.

Some weeks ago, a female attorney friend recounted to me her experience at a recent court hearing, involving several other parties, all represented by male lawyers. She described to me her confident delivery of her points, her command of her arguments, and her belief in her client’s position. However, after my friend finished, a senior male attorney’s first comment to the judge in response was along the lines of “the woman’s points might have been a little too emotional,” which caused the judge to smirk knowingly and did not elicit any dissimilar reaction from the others in the room.

I am dismayed both by this story and the fact that this kind of sexist treatment still occurs in my profession. I imagined myself as one of the male attorneys at the hearing, standing up and criticizing the “emotional little woman” strategy used to respond to legal arguments and challenging the use of such a tactic. But then I wondered – what if my client’s interests in the hearing’s outcome were so critical that my duty to act congruently with the hoped-for outcome made it unwise to stick my neck out and potentially upset a judge (apparently receptive to such a tactic) about to render a decision affecting my client’s fate? What would I do if forced to make a choice between standing up for my client’s legal interests and speaking up in support of broader social interests?

The disappointing truth is that the legal profession is no more immune to sexism and other types of disgraceful legacies than any other industry, and perhaps we are more tainted by them than other professions. In fact, the American Bar Association (ABA) recently adopted a new model rule of professional conduct that treats discriminatory actions by attorneys as ethical misconduct. Despite being resoundingly adopted by the ABA, the new model rule has sparked controversy, with detractors reportedly claiming the rule infringes upon lawyers’ personal freedoms to practice law as they see fit. One legal journal described the rule as little more than “PC politics” with no purpose other than trying to force lawyers to embrace social justice.

For the record, my opinion is that opposition to a rule (assuming it is appropriately drafted) requiring attorneys to practice law in a non-harassing and non-discriminatory manner and aiming to remove legacies of racism and sexism from the practice is befuddling at best. We counsel our clients every day on the importance of equal employment opportunity and best practices to comply with both the letter and spirit of anti-discrimination and harassment laws. We have no excuse if we do not insist on holding ourselves to the same standards.

But that still does not solve my uncertainty of how to handle the potential intersection between combating discriminatory or sexist conduct in legal settings and duties of advocacy owed to clients. How should we navigate the moments when these responsibilities might be at tension with each other? For now, the only answer I can comfortably reach is that while acting as a client advocate, I can speak out against social injustice, even if it potentially imperils a client’s interest, only if the client empowers me to do so. If a client has faith in the right legal outcome and unequivocally communicates to me that its social mores align with mine, I have authorization to exercise my discretion. But absent that authorization, there exists ambiguity between a need to challenge discriminatory and sexist expressions within my professional setting and my professional obligations to my clients in that same setting.

And that is where you, the reader, and someday the potential client, help your counsel out, and where we, as your counselors and advisors, need your guidance. We work with you on compliance strategies in support of social progress and to defend what you believe are baseless allegations of discrimination and harassment. Consider working with us as we try to beat back still-existing sexist and discriminatory attitudes within our profession. Consider talking to your trusted legal advisor on how you might feel when your legal interests and your social beliefs could create tension. Doing so might be the best way to help us decide how to walk the path between doing the right thing and doing the right thing for the client.

And of course, I appreciate that even at a theoretical level, these kinds of decisions might not be easy to make. But I submit that it is an important conversation to try to start.

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