May 2010 | Earn one hour of MCLE Credit in Elimination of Bias
Leveling the Playing Field
Knowing federal and state law, as well as applicable ethical rules about elimination of bias, can help you avoid discipline
Issues of bias and discrimination continue to plague lawyers and law firms around the globe. Due to the complexity of laws in this area, even well-meaning lawyers may stumble over one of the provisions of the myriad of laws and regulations prohibiting expressions of bias, discrimination or harassment in the workplace. This article will cover some of the most relevant laws, both federal and state, and the applicable rules of professional conduct.
Because modern legal practice is often multijurisdictional, this article will examine both the California Rules of Professional Conduct as well as the ABA Model Rules of Professional Conduct. Regarding the reach of the California Rules, Rule 1-110 specifically states that these rules “shall govern the activities of members in and outside this state, except as members lawfully practicing outside this state may be specifically required by a jurisdiction in which they are practicing to follow rules of professional conduct different from these rules.” And as a practical matter, although they are not binding in California, practitioners often find the ABA Model Rules helpful for ethical guidance. Regarding ethics opinions, 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” where there is no direct ethical authority in California. (State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal.App.4th 644,656.)
Why else do we care about bias and discrimination in the workplace? In addition to making sure we don’t become a defendant in a civil lawsuit and avoiding discipline, we also care about our reputation. We want to attract and retain talented lawyers as well as clients. For all of these reasons, a working knowledge of the laws and ethical rules in this area will permit the diligent lawyer to maintain a thriving legal practice that is ethical, professional and a satisfying workplace for employees.
Federal and state laws prohibiting discrimination
There are a number of laws that address the issue of bias and discrimination in the workplace. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, national origin and sex. Other federal laws include the Age Discrimination Act (1967), the Rehabilitation Act (1973), the Americans with Disabilities Act Amendments Act (2008), and the Equal Pay Act of 1963 – which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. The Department of Fair Employment & Housing prohibits discrimination based on age (over 40), ancestry, color, religious creed, denial of family and medical care leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), national origin, race, religion, sex (including pregnancy) and sexual orientation.
In addition to federal and state law, there are a number of ethical rules that relate to the issue of bias and discrimination in the practice of law. A working knowledge of these rules is essential in order to ensure that you are not only maintaining a workplace free from actionable discrimination, but you are also maintaining a legal practice that is successful as well as ethical.
Professional ethics and Rules of Professional Responsibility
One of the reasons lawyers need to know about the laws governing bias and discrimination is because we are ethically mandated to follow them. The conduct of California lawyers is governed by California Business and Professions Code Section 6068 which enumerates the duties of an attorney. BP 6068(a) states that one of these duties is “[t]o support the Constitution and laws of the United States and of this state.”
Unbeknownst to many lawyers, California actually has a rule of professional conduct specifically on the topic of bias and discrimination. California Rule of Professional Conduct 2-400(B)(2), Prohibited Discriminatory Conduct in a Law Practice, 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 (1) hiring, promoting, discharging or otherwise determining the conditions of employment; or (2) accepting or terminating representation of any client.”
Under CRPC 2-400(C), the State Bar cannot initiate any proceedings until the offense is proven in civil court and affirmed on appeal, or proven in civil court and the time for appeal has expired, or the appeal has been dismissed.
The issue of bias and discrimination in the practice of law is addressed in the ABA Model Rules as well. Rule 8.4, Misconduct, which deals with maintaining the integrity of the legal profession, states in pertinent part that it is professional misconduct for a lawyer to “(d) engage in conduct that is prejudicial to the administration of justice.” Rule 8.4 Comment  clarifies that “[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 paragraph (d) when such actions are prejudicial to the administration of justice.”
Many lawyers have asked about the language in California Rule 2-400(B) (2) prohibiting any unlawful discrimination in accepting representation of any client. What, for example, does the law firm do when a potential client comes in bearing a prominent Ku Klux Klan tattoo on his forearm and a T-shirt with a large swastika on it, seeking representation on a politically charged matter? Would turning such a client away constitute unlawful discrimination? This question often divides the room when posed at bias seminars, as there are arguments on both sides of the issue. Some employers argue that they are under no obligation to accept every case that walks in the door, and in fact, would worry about their reputation were they to take on such unpopular clients. Other employers state that they have an obligation to provide effective representation to everyone, and would just hand the man a long-sleeved plain T-shirt to wear when he came into the firm for a meeting so as not to create a hostile work environment for the rest of the employees. Ultimately, however, the question is posed: into which protected class does this man fit that turning him away would constitute discrimination in the first place, never mind unlawful discrimination? It may be that declining to represent this man is a decision that is not made based on his membership in any of the protected classes.
This hypothetical demonstrates the reality that a lawyer’s representation of a particular client does not constitute an endorsement of the client’s views. ABA Model Rule 1.2(b) states that: “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” ABA Model Rule 1.2, Comment , Independence from Client's Views or Activities, further explains 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. By the same token, representing a client does not constitute approval of the client’s views or activities.”
Regarding appointed cases, ABA Model Rule 6.2 Accepting Appointments states that “[a] lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: . . . (c) 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.” Note that Comment  to ABA Model Rule 6.2 states that “[a] lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. The lawyer’s freedom to select clients is, however, qualified. All lawyers have a responsibility to assist in providing pro bono publico service. See Rule 6.1. 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.”
Balancing ideological conflict with competenceRepresenting an unpopular client or a case the lawyer finds morally repugnant may be a proper discharge of the lawyer’s professional responsibility, but what if the lawyer is so disgusted with the facts of the case that it affects his or her ability to provide competent representation?
California Rule of Professional Conduct 3-110, Failing to Act Competently, states that “(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” “Competence” is described in subsection (B) as “to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional and physical ability reasonably necessary for the performance of such service.” Subsection (C) states that if the lawyer does not possess the learning and skill necessary when the representation was undertaken, he or she may still render competent representation by associating with or consulting another lawyer who does possess the requisite competence, or by acquiring the necessary learning and skill themselves before performing the legal services.
It is important to note that this rule covers not just legal knowledge, but mental and emotional ability reasonably necessary to competently render legal services. Contrast this definition with similar provisions in the ABA Model Rules: ABA Model Rule 1.1, Competence, mandates competent representation, which is defined as requiring “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” ABA Model Rule 1.3, Diligence, states that “a lawyer shall act with reasonable diligence and promptness in representing a client.”
Unpopular ideas v. illegal goals
Obviously, we must distinguish the client whose views are unpopular from the client whose motives are illegal. Clearly, a client is not entitled to legal representation in pursuit of improper motives or objectives. In fact, an attorney may have either an option or a duty to withdraw from representation if a client’s motives or objectives are illegal or improper.California Rule of Professional Conduct 3-200, Prohibited Objectives of Employment, states that “[a] member shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is: (A) to bring an action, conduct a defense, assert a position in litigation or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or (B) to 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.”
Rule 3-700 Termination of Employment, states in the pertinent part of subsection (B), Mandatory Withdrawal, that “a member representing a client before a tribunal shall withdraw from employment with the permission of the tribunal, if required by its rules, and a member representing a client in other matters shall withdraw from employment, if:(1) The member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation or taking an appeal without probable cause and for the purpose of harassing or maliciously injuring any person; or (2) The member knows or should know that continued employment will result in violation of these rules or of the State Bar Act.”
Subsection (C) Permissive Withdrawal, states in pertinent part that an attorney may have grounds to withdraw when the client: “(a) insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification or reversal of existing law, or (b) seeks to pursue an illegal course of conduct, or (c) insists that the member pursue a course of conduct that is illegal or that is prohibited under these rules or the State Bar Act, or (d) by other conduct renders it unreasonably difficult for the member to carry out the employment effectively, or (e) insists, in a matter not pending before a tribunal, that the member engage in conduct that is contrary to the judgment and advice of the member but not prohibited under these rules or the State Bar Act.”
Similarly, California Business and Professions Code Section 6068 states in paragraph (c) 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.” Thus, a client’s desire for you to advance a meritless case can be distinguished from the client who presents a valid claim that you find personally distasteful.
Strategies for the elimination of bias in the workplace
In addition to providing ongoing training within your firm, there are many other creative measures you can take to foster an environment of inclusivity within your firm. This may include making a concerted effort to invite employees to office events, case roundtables and even management meetings when appropriate. When working on office projects or delegating responsibility, be aware of whether you (or others) are discounting the ability of certain employees to participate because you are “protecting” them due to a medical condition, pregnancy or other circumstance. If they cannot participate fully, consider offering them a limited way to contribute if they so desire. 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. Attempt to steer the conversation away from the topic or directly caution them that such conversation is not appropriate.
When someone reports an instance of bias or discrimination, make sure you take the complaint seriously and listen respectfully. An additional complaint may arise if the employee does not believe that he or she was treated with respect. Make sure to take notes in order to acquire as many specifics as possible, and let the employee know that you will ensure a prompt investigation of the issues. Report the complaint immediately, because depending on the nature of the problem you may need to take immediate action, such as separating the alleged harasser from the person claiming to be harassed now that you are on notice.
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, in order to be able to defuse them, and work together toward solutions that will make your office a happier and more productive place to work.
The elimination of bias in the legal profession is a laudable goal we will all continue to work towards. A working knowledge of both federal and state law as well as the applicable ethical rules in this area will help you to avoid becoming a defendant in a lawsuit, or subject to discipline. Familiarity with these laws and ethical rules will permit you to practice law fairly, effectively and ethically.
*This article does not constitute legal advice. Please shepardize all case law before using.
• Wendy L. Patrick is a San Diego County deputy district attorney in the Sex Crimes and Stalking Division. She is the immediate past chair and current co-chair of the San Diego County Bar Association Legal Ethics Committee.
This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour of elimination of bias.
The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.