A Level Playing Field
California Lawyer

A Level Playing Field

Special Credit: Reduction of Bias

May 2014

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Though we live in an age of so-called political correctness, issues of bias and discrimination continue to plague lawyers and law firms around the world. Due to the increasing complexity of statutory and decisional law in this area, even seasoned lawyers may stumble over one or another provision of the myriad laws and regulations prohibiting expressions of bias and discrimination in the workplace.

But know this: Antidiscrimination laws are not the only relevant references when it comes to eliminating bias in the legal profession. Indeed, both the California Rules of Professional Conduct and the ABA Model Rules of Professional Conduct speak to the issue.

Although the ABA Model Rules are not legally binding in California, they do provide helpful guidance and are often cited when the state's judges wrestle with ethical issues. Thus, while an ABA formal opinion "does not establish an obligatory standard of conduct imposed on California lawyers," the ABA Model Rules may be considered as a "collateral source" when there is no direct ethical authority in California. (See State Comp. Ins. Fund v. WPS Inc., 70 Cal. App. 4th 644, 656 (1999).)

California lawyers should have a special interest in eradicating discrimination in the legal profession. One motivation is obvious: preventing costly litigation. But other interests are at work too: certainly the public perception of the legal profession. Another issue to keep in mind is the need to attract and retain talented lawyers, as well as paying clients. For all of these reasons, a working knowledge of the relevant laws and antidiscrimination rules will enable a diligent lawyer to maintain a thriving legal practice that is ethical, professional, and a satisfying workplace for employees.

Antidiscrimination Statutes
A number of laws address bias and discrimination in the workplace. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, or national origin. (See 42 U.S.C. §§ 2000e-2000e-17.) Other relevant federal laws include the Age Discrimination Act (29 U.S.C. §§ 621-634), the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796l), the Americans with Disabilities Act (42 U.S.C. §§ 12101-12213), as well as the Equal Pay Act (29 U.S.C. § 206(d)), which dictates that men and women who perform substantially equal work should receive the same pay.

In terms of state law, the key statute is the Fair Employment and Housing Act, commonly known as FEHA. (See Cal. Gov't Code §§ 12900-96.) It prohibits discrimination on the basis of "race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation" in hiring and workplace-related decisions. (See Cal. Gov't Code § 12940(a).)

Effective this year, the code was amended to add "military and veteran status" to the list of categories protected from discrimination. (The definition of "military and veteran status" includes members or veterans of the United States Armed Forces, U.S. Armed Forces Reserve, the U.S. National Guard, and the California National Guard.)

Rules of Professional Conduct
In addition to federal and state law, a number of ethical rules relate to the issue of bias and discrimination in the practice of law. A working knowledge of these rules is essential for lawyers striving to maintain a workplace free from actionable discrimination while also conducting an ethical practice of law.

The conduct of California lawyers is governed by the state's Business and Professions Code, which enumerates an attorney's duties. Among those duties is the obligation of lawyers to "support the Constitution and laws of the United States and of this state." (Cal. Bus. & Prof. Code § 6068(a).)

Unbeknownst to many attorneys, California actually has a rule of professional conduct that specifically addresses the topic of bias and discrimination. It states that in the management or operation of a law practice, a member "shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability" in hiring, promoting, discharging, or otherwise determining the conditions of employment, as well as in "accepting or terminating representation of any client." (Cal. Rules Prof'l Conduct (RPC) 2-400(B).)

Under this rule, the State Bar cannot initiate any proceedings against a member until a discrimination claim is proved in civil court and affirmed on appeal, or the time for appeal has expired (or the appeal has been dismissed). (Cal. RPC 2-400(C).) The notes under rule 2-400 state that a disciplinary investigation can then be initiated under section 6106 (moral turpitude, dishonesty, or corruption), section 6068 (duties as an attorney), or the California Supreme Court's "inherent authority to impose discipline or other disciplinary standard."

The issue of bias and discrimination in the practice of law is also addressed in the ABA Model Rules. Under Model Rule 8.4, which deals with maintaining the integrity of the legal profession, it is professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice." (ABA Model Rule 8.4(d).) A lawyer who, in the course of representing a client, "knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status" violates Model Rule 8.4 "when such actions are prejudicial to the administration of justice." (See ABA Model Rule 8.4, comment [3].)

Accepting Representation
Although California RPC 2-400(B)(2) prohibits unlawful discrimination in accepting representation of any client, analyzing a given case can be difficult. For example, what is a law firm to do when a potential client, seeking representation on a politically charged matter, comes into the office wearing a prominent Ku Klux Klan tattoo on his forearm and a T-shirt with a large swastika on it? Would turning such a client away constitute unlawful discrimination? Or could accepting the engagement create a hostile workplace at the law firm? These questions often divide the room when posed at bias seminars, with impassioned arguments made on both sides. Some lawyers maintain they are under no obligation to accept every case that walks in the door and, in fact, would worry about their reputation in the community - not to mention staff morale - were they to take on such a client.

On the other hand, lawyers have an obligation to provide effective representation to everyone. In the hypothetical just posed, the lawyer could easily offer the client a long-sleeved shirt to wear when he comes to the office for meetings.

Yet another question looms: Into which protected class does this hypothetical client fit, such that turning him away would constitute improper discrimination - let alone unlawful discrimination? It may well be that declining to represent a presumed racist is not a decision that is based on his membership in any protected class.

This hypothetical case also underscores another pertinent point: Namely, that representing a particular client does not constitute an endorsement of that client's views. Thus, ABA Model Rules state that a lawyer's representation of a client, including representation by court appointment, "does not constitute an endorsement of the client's political, economic, social or moral views or activities." (See ABA Model Rule 1.2.) The comments to this rule offer further counsel, noting that "[l]egal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval." (ABA Model Rule 1.2, comment [5].)

Court-Appointed Representation
The ABA Model Rules state that a lawyer "shall not seek to avoid appointment by a tribunal to represent a person except for good cause," such as that "the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client." (ABA Model Rule 6.2.) The comments note that a lawyer "ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant." However, the comments also note that the lawyer's freedom to select clients is qualified: All lawyers have a responsibility to help provide pro bono service. An individual lawyer fulfills this responsibility "by accepting a fair share of unpopular matters or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services." (See ABA Model Rule 6.1 at comment [1].)

As to the repugnancy of a client or cause to a lawyer approached for representation, the California rule offers some guidance. A member of the State Bar "shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence." (See Cal. RPC 3-110(A).) In this context, "competence" means to apply the diligence, learning, skill, and mental, emotional, and physical ability "reasonably necessary for the performance of such service." (Cal. RPC 3-110(B).)

It is important to note that this rule covers not just legal knowledge, but also the mental and emotional ability reasonably necessary to competently render legal services.

Unpopular v. Illegal
Obviously, one must distinguish between the client whose views are unpopular and the client whose motives are illegal. A client is not entitled to legal representation in pursuit of improper motives or objectives. In fact, in such circumstances an attorney may have either an option or a duty to withdraw from representation of the client. Thus, the rules require that a lawyer shall not seek, accept, or continue employment if he or she knows or should know that the objective of such employment is to pursue a claim without probable cause and for the purpose of harassing or maliciously injuring any person. In addition, a lawyer shall not present a claim or defense in litigation that is not warranted under existing law, "unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law." (See Cal. RPC 3-200(A) and (B).)

Similarly, the governing code section provides that it is the duty of an attorney to "counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense." (Cal. Bus. & Prof. Code § 6068(e).) A client's wish that the attorney advance a meritless case, then, can be distinguished from a client's valid claim that the attorney simply finds to be personally distasteful.

In extreme cases, the lawyer is permitted to withdraw from the representation: When a client is pursuing legal action in bad faith, or when the client's course of action will cause the member to violate the Rules of Professional conduct or the State Bar Act, the rules provide for both mandatory and permissive withdrawal. (See Cal. RPC 3-700.)

California attorneys also must be aware that even if they practice in another state, they are still bound by the California Rules of Professional Conduct. (See Cal. RPC 1-100(D) ("These rules shall govern the activities of members in and outside this state, except as members lawfully practicing outside [California are] specifically required by [another] jurisdiction ... to follow [different] rules").)

Strategies for Fairness
It is one thing to recite the rules, and quite another to develop practical solutions that help ensure a fair workplace and a law practice that is free of prejudice.

One effective approach is to offer ongoing diversity training within the firm. In addition, many other creative measures can foster an inclusive climate at the office. These include making a concerted effort to invite all employees (lawyers and nonlawyers alike) to office events, case roundtables, and even management meetings when appropriate. When office projects or other responsibilities are being delegated, managers should be aware of whether office staff may be discounting the ability of certain employees to "protect" them due to a disability, pregnancy, or other circumstance. If a staff member truly is unable to participate fully, he or she could be offered a limited form of participation, to contribute up to his or her personal capacity. Above all, lawyers should be wary of participating in water cooler chatter if it starts to single out people based on their race, gender, sexual orientation, or membership in another protected category. Should that unfortunate situation present itself, steer the discussion in another direction and at the appropriate moment caution colleagues that such conversation is not appropriate.

When someone reports an instance of bias or discrimination, make sure the complaint is taken seriously. Listen respectfully, investigate as the situation dictates, and take prompt action if a problem is documented. (Unless such procedures are followed, the affected employee may have an additional complaint: that the office did not respond properly to a legitimate complaint.) Be sure to take notes, acquiring as many specifics as possible. And let the complaining employee know that you will promptly investigate the matter. The complaint should be addressed right away because, depending on the nature of the problem, it may require immediate action, such as separating the alleged harasser from the person claiming to be harassed.

When complaints are taken seriously and handled professionally, it can make a big difference in how they are resolved. As an employer or a supervisor, it is much better to learn about issues before they make their way into a courtroom. Moreover, defusing potentially explosive situations and working cohesively with colleagues toward reasonable solutions will make your office a happier and more productive place to work.

The elimination of bias in the legal profession is a laudable - and realistic - goal. A working knowledge of federal and state law, as well as the applicable ethical rules, will help keep lawyers from becoming defendants in litigation or subject to discipline. And familiarity with these rules and statutes also prepares lawyers to practice fairly, effectively, and ethically.

Wendy L. Patrick is a deputy district attorney in San Diego County. She also serves as advisor to the California State Bar Committee on Professional Responsibility and Conduct.

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