United States: ABA Seeks To Combat Discrimination, But Clients May Hold The Keys To Progress

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions