f/k/a archives . . . real opinions & real haiku

[ditto, 01-12-04]

late night hot cocoa —
cyber toasting alone
together

A Task Force on the Future of the Contingent Fee has been formed by the ABA’s Tort Trial and Insurance Practice Section (TIPS), with a mandate to report back by the end of 2004, with what one member calls “a scholarly, well-reasoned piece of work that can be used by legislators, decision makers and the public.”  As of this morning, I can find no mention of the task force on the TIPS home page nor the broader ABA website.  However, it is described in this law firm press release (and discussed in this newspaper article (Miami Herald, “Lawyers’ fees come under fire”, 01-04-04). (Thanks to MyShingle and How  Appealing for pointers to the article.)

The Task Force will be chaired by Becker &Poliakoff’s Steven B. Lesser, an expert on construction-related legal issues.   It’s clear that the “Early Offer” proposals by Common Good, with petitions filed in 13 states last Spring seeking to amend the rules of ethics relating to contingency fees, were a major impetus to formation of the Task Force.

update: According to the Steven Lesser’s Bio page at B&P:  “Mr. Lesser . . . led the task force’s review of the contingent fee system to evaluate the impact of future changes to this fee structure on attorneys and their clients. The Task Force published “Contingent Fees in Mass Tort Litigation” in the Tort Trial & Insurance Practice Law Journal, Fall 2006 and its earlier report entitled “Report on Contingent Fees in Class Action Litigation” was published in The Review Of Litigation, The University of Texas School of Law, Volume 25, No. 3, Summer 2006.”

This weblog has, of course, opined frequently on the ethics of contingency fees — especially on using a standard fee that does not take into account the risk undertaken by the lawyer in each particular case. (See our Fees resources page.)   I am not at all against the use of the contingency fee, but I do oppose its all-too-frequent use in a manner that unfairly over-compensates the lawyer at the expense of the client.   As attorney Rutledge R. Liles said while President, Florida State Bar:

“While it is easy to defend the philosophy of the contingent fee, it is impossible to defend its abuses. We must as professionals address these abuses and the process must start in our own individual practices. The contingent fee should be reasonable under the circumstances of the given case. The contracted fee should be a guide not a mandate.”    Professionalism and the Contingent Fee: When is Enough Enough?, for The Florda Bar Journal (Jan. 1989, at 5) (discussed here).

1)  Don’t let yourselves become the captive of any interest group, as clearly happened in the Ethics 2000 process.  As I have argued here, the changes made by the ABA and Ethics 2000 in Rule 1.5 of the Model Rules “make it clear that the ABA has capitulated to defenders of the ‘standard’ contingency fee. The approved Rule changes reverse recent attempts within the ABA, and by client advocates across the nation, to apply traditional ethical and fiduciary duties to the use of contingency fees.”
2)  Don’t confuse Reforming the Use and Ethics of Contingency Fees with Tort Reform.   As discussed here, p/i lawyers try to link the two in order to avoid the ethical problems inherent in the current contingency fee system.
3)  In looking at the overall situation to “find out if contingent fees are really out of control,”  keep in mind that the legal ethics of contingency fees concern the relationship between the individual client and his or her lawyer in each particular case, and not global numbers about supposed average earnings of plaintiff’s lawyers, nor the high profiles cases that involve billions of dollars in fees.  ABA Formal Ethics Opinion 389 (1994) recognized the basic proposition that reasonableness relates directly to risk in each given case — this principle has been ignored in practice by the adoption of standard contingency fee levels in each community. (See, e.g., this, this and that.)  When looking at the big picture, please don’t forget the average personal injury victim, who should pay a reasonable fee for legal serivces and not have to give the lawyer a large partnership interest in every injury claim.
4)  An attorney cannot justify being overcompensasted in one case by claiming that doing so allows taking riskier clients in other cases.  Model Rule 1.5 does not include such subsidy notions in its consideration of reasonableness.  Nor does Canon 5 of the Lawyer’s Code of Professional Responsibility, which specifically states (emphasis added) that “Neither the lawyer’s personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute the lawyer’s loyalty to the client.”  This ethical and fiduciary loyalty applies to fees as well as to all other aspects of the lawyer-client relationship.  Furthermore, in a world where p/i lawyers carefully sort out and reject the riskier cases (and those where the damages are unlikely to be great), the existence of such charitable impulses is highly questionable.
5)  Be wary of statistics purporting to show how fair contingency fees are on average.   As argued here, the most widely quoted study on the issue (by Prof. Kritzer) is based on very faulty premises and numbers.
6)  Listen to advocates for legal consumers, such as HALT, who believe that clients deserve to be fully informed of their rights and options, and all relevant facts (such as the likelihood of winning) before entering into contingency fee arrangements.   Please recognize, on the other hand, that Public Citizen (a plaintiff in many major injury cases) has not acted as a consumer advocated, but has instead consistently taken the party line of p/i plaintiff’s lawyers, when it comes to contingency fees.  It has never attempted to fix the abuses in the system.  See this posting.
7)  Take a close look at the Florida experiment in contingency fee regulation, which has been in effect for several years and should yield important data and conclusions.

Under the Florida Bar Continency Fee Rules, clients entering into contingency fee arrangements have greater protection than in any other State, including a Statement of Client’s Rights for Contingency Fees (explaining, among other things, that there is no set percentage fee and that the client has the right to negotiate the fee level), a 3-day “cooling off” period to reconsider after signing an agreement, and step-down maximum fee levels as the amount awarded increases. (see Rule 4-1.5)

It would be very helpful to know whether these rights and rules have (a) replaced a standard fee percentage with fees tailored to the risk in each case; (b) empowered clients to negotiate fairer fees; (c) created open price competition among p/i lawyers; and [added 01-08-04] (d) resulted in an inadequate supply of competent lawyers willing to act as plaintiff’s counsel in p/i cases  If so, there may be no need for complicated and restrictive rules like those suggested by Common Good.

Similarly, check out the new Arizona rules, to see if they are improving  the use of contingency fees.

8)  Don’t be confused by those who shout that there really is no “standard contingency fee.”   An objective study on the topic might help clear the air.  See this.
9)  When those opposing contingency fee reform say things like ‘They don’t give a damn about the people they kill and maim. It has everything to do with stopping the filing of lawsuits. It has nothing to do with the victims’ receiving more money” (reprinted here, from the Miami Herald, Jan. 4, 2004), and tell you that contingency fee reform will prevent injured clients from finding “good” lawyers, ask them why “good” lawyers aren’t willing to take a contingency fee percentage that is in line with the risk presented by a particular case.  Ask them how the maximum fee allowed in each jurisdiction got to be the fee offered to each client as a fait accompli and why there is no mention of fee percentages in all those Yellow Page ads.

The following postings from this site are most relevant to the work of the Task Force:

• Posting 9/05/03 It’s Not Unusual (to take one-third)
  Posting 7/30/03 Kritzer Contingency Fee Article: More Bunk Than Debunk

  Posting 7/29/03 Professor Continues to Fight New Model Rule 1.5 and Contingency Fees

  Posting 7/16/03 Challenge to Public Citizen: Help Fix the Contingency Fee System

  Posting 7/16/03 A Bar President Writes About Contingency Fees

  Posting 6/30/03 New Arizona Rules Reject Ethics 2000 Fee Conspiracy

  Posting 6/18/03 Fiduciaries Everywhere: Except in the Mirror?

  Posting 6/12/03 UnCommonly Good Advice on Contingency Fees

  Posting 6/03/03 Using a Standard Contingency Fee is Often Unethical

  Posting 5/30/03 P/I Lawyers v. Common Good

I’m sure I’ll come up with a few more suggestions as 2004 progresses, but this should hold you for now.  Questions and comments are welcomed, as always.

Afterthoughts (01-08-04):  The Task Force will almost certainly hear a chorus that says “a contract is a contract” and contingency fees should never be reduced once the client agrees to a particular percentage rate or rate structure. That topic is discussed briefly here.  Courts have always asserted the right to decide at the conclusion of a matter whether a contingency fee is excessive.   Model Rule 1.5 says (emphasis added)  “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee.”   This clearly suggests that a fee that seemed reasonable when the agreement is first made could be deemed excessive and unreasonable when billed or collected (if, for example, the matter is settled with far less attorney work or for a far great amount of damages than initially expected — as in the recent Massachsetts Tobacco Settlement fee dispute).  Of course, the more fully informed the client is when entering into the contingency fee arrangement [using the checklist and principles in ABA Formal Ethics Opinion 389 (1994), which are discussed here], the less likely that the results would be deemed to be unreasonable.

  According to an article in today’s New York Law Journal, the higher fees that went into effect for assigned counsel in New York on January 5th are working as intended — attracting more so-called 18-B lawyers to take cases in Family Court.  (“Higher Pay Help Boost Roster of 18-B Lawyers”, by Daniel Wise, 01-06-04)  Last May, in one of ethicalEsq‘s very first posts, we praised the increase in New York’s rates to $75 in court and $60 out of court per hour, and opined:

No one’s going to get rich taking these cases, and the lack of court-appointed lawyers won’t be totally solved.  But, managing partners might now be more willing to allow idealistic younger lawyers to serve as law guardians for children or appellate lawyers for criminal defendants. And, experienced attorneys, who are after all ethically obligated to help ensure legal services for all persons, might be inspired to take an appointed case or two. (See Rule 6 of the Model Rules of Professional Responsibility and Ethical Consideration 2-29 of the Model Code.)  If more lawyers sign up to be on the panels of court-appointed attorneys, poor clients should get better representation and our courts should run more smoothly and quickly. That’s a pretty good use of taxpayers dollars.  Even I have to admit it.

• I hope the responsible public officials in Massachusetts will take a close look at the NYS results as they consider the appeal for higher fees from assigned counsel in that State.

Power Line offers a summary of the oral argument yesterday in the case brought before the Minnesota Supreme Court by attorney Elliot Rothberg, challenging the State’s anti-bias CLE requirement (discussed by us here yesterday).  The notes were compiled by lawyer Peter Swanson, who filed a friend-of-the-court brief supporting Rothberg, which can be found here.

It’s a thoughtful summary, touching on the core issues presented in the case.  If I had to guess based on Swanson’s notes and my own analysis, the Court will uphold the CLE requirement.

-e&h-

thanks to the (youthfully) venerable  Robert Ambrogi for welcoming the return and new persona of this weblog.   Bob did us the unique honor of penning a haiku for the occasion:

Blog land seems quiet —
Muteness of ethicalEsq.
No more! David’s back.

Having demonstrated yet another talent, maybe we can convince the very busy Ambrogisan to become an Honored Guest for our HAIKUesque feature.

   Bag & Baggage was just chosen 2003 Site of the Year by NetLawTools.com, and nobody deserves the award more than Denise Howell [along with her (in)sidekick, Tyler].  Denise has shown us that a weblog aimed at lawyers can both inform and entertain, while having a unique voice, demonstrating technology, and making readers and colleagues feel like friends.

My hearty congratulations also go out to all the honorably mentioned.  Here’s the announcement:

2003

Site of the Year: Denise Howell’s Bag andBaggage is a leader among legal blogs, with a light (though sometimes cryptic) writing style that attracts legions of readers. The large number of high quality legal blogs made selecting this year’s winner unusually difficult, with sites named in previous months and beSpacific,  ethicalESQ, Ernie the Attorney, Dennis Kennedy, Tom Mighell, Tech Law Advisor, Larry Bodine, Mad Kane, Lawrence Lessig and others all producing excellent resources.

Naturally, I’m very pleased to be on the list and in such good company.  It would be traditional to say I’m humbled, but I’m supposed to be an honest lawyer.

  Like the Greenberg appellate court in a similar California case, I recognize the Minnesota dissenters’ “desire to avoid exposure to what they perceive to be a well-intentioned, but sometimes patronizing, condescending, and inept educational agenda”   What I cannot buy, however, is their argument that they must be protected from “indoctrination.”

P.S.  FedLawyerGuy Jerry Lawson wrote a Comment I’d like to share, along with my response:

Jerry:  Fortunately, my state bars do not require such course. I would be an unhappy camper if they did.

In some federal agencies all employees are required to take such classes. Every such class I’ve seen has been terrible–so bad as to be a waste of time, and insulting to boot. I’m doubtful that the quality of instruction would be better in the CLE context.

David: Hi, Jerry.  I sat through federal sensitivity classes, too, and they went from terrible to well-done. The difference here is that there is no such thing as “such classes” — there are literally hundreds of ways to fulfill the requirement, from seminars to drama to rallies, etc. We had no chance as federal employees to create our own sensitivity curriculum or to reject the official point of view.  Here, the “opponents” have created approved sessions that get sell-out crowds and rave reviews.

Using limited, filtered facts, virtually any requirement, law, decision can be made to look silly. But, a broader, fairer perspective often shows that pilloried proponents weren’t necessarily so foolish.

  Like the Greenberg appellate court in a similar California case, I recognize the Minnesota dissenters’ “desire to avoid exposure to what they perceive to be a well-intentioned, but sometimes patronizing, condescending, and inept educational agenda”   What I cannot buy, however, is their argument that they must be protected from “indoctrination.”

P.S.  FedLawyerGuy Jerry Lawson wrote a Comment I’d like to share, along with my response:

Jerry:  Fortunately, my state bars do not require such course. I would be an unhappy camper if they did.

In some federal agencies all employees are required to take such classes. Every such class I’ve seen has been terrible–so bad as to be a waste of time, and insulting to boot. I’m doubtful that the quality of instruction would be better in the CLE context.

David: Hi, Jerry.  I sat through federal sensitivity classes, too, and they went from terrible to well-done. The difference here is that there is no such thing as “such classes” — there are literally hundreds of ways to fulfill the requirement, from seminars to drama to rallies, etc. We had no chance as federal employees to create our own sensitivity curriculum or to reject the official point of view.  Here, the “opponents” have created approved sessions that get sell-out crowds and rave reviews.

Using limited, filtered facts, virtually any requirement, law, decision can be made to look silly. But, a broader, fairer perspective often shows that pilloried proponents weren’t necessarily so foolish.

  Spitbull suggested in a New Year’s Day post that lawyers don’t need Continuing Legal Education (CLE).  She says:

   We can’t pretend to be a “learned profession” while letting our members stop all supervised training after three years of schooling.  I’ve seen far too much incompetence (as a law clerk, attorney advisor, general and family practitioner, supervising attorney, hot-line advisor, and mediator) to believe there is no serious problem.  And, I’ve seen too much of the disciplinary system to believe that vigorous oversight will ferret out incompetence lawyer by lawyer, except in the most egregious cases and with savvy clients.  Mandatory legal education is not a perfect solution, but it sure beats allowing the profession to ignore the failure of many of its members to acquire and maintain competence in the areas in which they choose to practice.

• I have argued elsewhere and often that lawyers must be both competent and diligent, if the client’s needs are to be adequately served.  Spitbull is right that we need to instill some diligence.  Some well-publicized disciplinary actions would help, but CLE ethics sessions that strongly impress upon lawyers what it means to practice with diligence would also be very helpful, and would put attorneys on notice. 
  
•  In February, 1997, American Bar Association President N. Lee Cooper issued his Challenge to State and Local Bar Organizations on “Improving Legal Representation in Cases Involving Children, Youth and Families.”  Cooper’s working group found that:  “In child abuse and neglect cases, the legal representation of parents, children, and child protection agencies is often seriously deficient.”  To alleviate those problems, Cooper called upon state and local bar leaders to sign a pledge that “We will work to establish clear standards for attorneys in the representation of children, parents, and child protection agencies in child abuse and neglect cases (and related termination of parental rights and adoption cases), including clarifying basic ethical obligations of diligent representation by attorneys in these cases, such as obligations to meet with clients well in advance of each substantive hearing, to investigate disputed facts, and to be present in court.”  You don’t have to be as cynical as your Editor to marvel that any member in good standing of any state’s bar needs such clarifications — but, believe me, they do.  

CLE might not be a panacea, but it just might be a kick in the pants.  If the quality of CLE is low where you practice, then consider it an opportunity to put together a better product — it would be a good way to serve your profession and the public, and perhaps create a name and a network that will help your career.

Whatever you do, stop whining about CLE.  The coffee’s getting better, and the pastry, too. 

Update (01-06-04):  Spitbull responds here to this post.   She correctly points out that CLE is not a certain method for assuring competence, but it’s hard to imagine ever achieving a system that could make every lawyer in America (over a million of them)competent.   It would take a revolution to achieve re-certification or specialty testing, and there will never be enough money or will to create effective competency policing.   Check our Discipline Resources to see just how badly the system needs improvement, and a few modest suggestions for reform. 

The legal profession has a lot of serious flaws, but gender bias does not seem to me to be one of them.  Sure, there are individual lawyers who are gender chauvinists, but compared to the rest of society, we have every right to be proud of the gender equality and neutrality that exists today in the legal profession.  (You have not been directed to the wrong site; this is the ethicalEsq weblog.)

As is often the case, the starting point for this train of thought was an interesting post by Scheherazade Fowler yesterday at Stay of Execution, and the responses to her musing and questions — including Comments at Sherry’s site, and postings elsewhere, such as My Shingle and Unbillable Hours.   Apparently, a Chapter 13 bankruptcy trustee recently mentioned to Sherry that there might be a gender problem in bankruptcy law because he saw so few women entering or staying in the field.  As usual, Sherry seems more perceptive than many elders in the profession, and focuses on the most important issues:

• “My response was to kind of shrug and say “So what?” Why does this matter? Do we care because we care about women lawyers and want to make sure they feel that all career options are open to them? Or do we care because without women lawyers the clients aren’t as well served?”
  
• “I don’t know where I come down on all this. I’ve never felt particularly isolated because I’m a woman. I’ve sometimes been the only woman in the room but rarely have I felt bummed out by that, or mistreated. . . .  As I progress into more demanding and sophisticated roles I’ll be playing a little different part and I sure as heck don’t want anyone treating me differently because I’m a woman. I don’t expect anything overt in this area, but it may be that up to a certain point I just won’t be perceived as having the same kind of authority as I would if I were a man.”

Just last week, when looking over materials from a “diversity workshop” attended by the thirteen-year-old daughter of friends, I told Anny something like this:  “I’m really glad that you’re learning to respect people of all kinds and to treat them all without bias.  But, please remember that people who go through life seeing everything through the prism of a mistreated minority see many problems and slights that just don’t exist, or simply make themselves far more miserable than they need to be.”   In a world where the majority of law students are female and there are examples of successful women in every facet of the profession, fretting over gender gaps and “imbalances” seems like misplaced priorities and professional masochism to me.

Richard Ames left a particularly tart Comment at Sherry’s weblog:

The old guard men are getting old, retiring, dying in droves. I don’t see condescending behavior toward women among my male contemporaries anymore than they are likely to be condescending to me or any other man I know. Women in the profession who think they aren’t being “taken seriously” would do well for themselves if they stopped dramatizing “women’s roles” in the law, and simply got on with practicing it.

If some sectors of the legal profession seem to have too few women, the “problem” may be that not many women find the field suitable or enjoyable — because of its substance, hours, clients, etc.  They choose not to enter those fields or choose to leave them, because in 2004, they have that choice.  Of course, the choices may be made without enough good information, but that’s true for both genders.  And, yes, in many instances, a managing partner or pure chance helps make the choice for the new lawyer, but that also happens with regularity to males.

 

  My personal experiences may not be representative, but they have been diverse over the past three decades, and I have never seen gender keep a woman from entering a particular field of law, being judged on her own merits, or succeeding.  Like professional sports, the legal profession is outcome driven and highly competitive; it cannot afford to waste or misdirect talent because of gender biases. 

 

• Holding stereotypes about what interests women or male lawyers will often turn the assumer into an ass.   For example, over 20 years ago, there were quite a few female lawyers in management, and many women staff attorneys, doing antitrust law at the FTC — and, I was the one left out of the sports talk at the water cooler, since college basketball never interested me, but several women were rabid Tarheel or Hoya fans.  Also, when I asked to temporarily go on part-time status, in 1980, to prepare to teach antitrust as an adjunct professor, a male manager said, “Oh, you mean that program for women.”   Of course, I immediately reminded him that I would use that quote in my discrimination suit, should he fail to approve my request.  (It was approved.)

Where I’ve personally encountered efforts to genderize law-related selections and programs, the results have been inane or ludicrous.  For example: 

1. The female head of a search committee for a non-profit children’s rights group told a staffer that only a woman could head the organization due to its subject matter.   They passed over a male applicant with far superior experience and credentials to name a woman director.  A few years later, thankfully, when the position was again open and the search committee was gender neutral, the same male re-applied and was chosen on the merits.
   
2. A local family mediation service used two mediators for each session, despite a lack of trained volunteers, because the program’s board believed no woman would feel comfortable if there were only one mediator who was male.   This rule delayed the scheduling and resolution of the program’s entire caseload, and complicated mediations with the unwieldy co-mediator structure.  Because there were far fewer male volunteers, the organization finally ruled that it would be okay to have two women serve as mediators on the same case, but never two men (again, because of the general assumption that the woman client would feel at a disadvantage).     

There is nothing to gain by trying to achieve gender “balance” in various sectors of the legal profession.  In twenty years or so, when a majority of lawyers are women, such goals will seem silly — as I’m sure my female colleagues will ably inform the complaining males.  

Afterthought (01-04-04):   Carolyn Elefant asked on her site yesterday whether there was anything unethical in trying to build a business by catering to the gender or ethnic preferences of clients.  My reply there was as follows:  “I see nothing inherently wrong with using gender or other demographic characteristics to build a business.   A client’s comfort level or other preferences are important.   A problem would arise, I’d think, if the lawyer were misleadingly suggesting that his or her demographic characteristic(s) would assure better results, or if the marketing were done in a manner that demeans any group, or suggests that the lawyer is practicing unlawful or unethical discrimination or would pander to the client’s bigotry.”

The legal profession has a lot of serious flaws, but gender bias does not seem to me to be one of them.  Sure, there are individual lawyers who are gender chauvinists, but compared to the rest of society, we have every right to be proud of the gender equality and neutrality that exists today in the legal profession.  (You have not been directed to the wrong site; this is the ethicalEsq weblog.)

As is often the case, the starting point for this train of thought was an interesting post by Scheherazade Fowler yesterday at Stay of Execution, and the responses to her musing and questions — including Comments at Sherry’s site, and postings elsewhere, such as My Shingle and Unbillable Hours.   Apparently, a Chapter 13 bankruptcy trustee recently mentioned to Sherry that there might be a gender problem in bankruptcy law because he saw so few women entering or staying in the field.  As usual, Sherry seems more perceptive than many elders in the profession, and focuses on the most important issues:

• “My response was to kind of shrug and say “So what?” Why does this matter? Do we care because we care about women lawyers and want to make sure they feel that all career options are open to them? Or do we care because without women lawyers the clients aren’t as well served?”
  
• “I don’t know where I come down on all this. I’ve never felt particularly isolated because I’m a woman. I’ve sometimes been the only woman in the room but rarely have I felt bummed out by that, or mistreated. . . .  As I progress into more demanding and sophisticated roles I’ll be playing a little different part and I sure as heck don’t want anyone treating me differently because I’m a woman. I don’t expect anything overt in this area, but it may be that up to a certain point I just won’t be perceived as having the same kind of authority as I would if I were a man.”

Just last week, when looking over materials from a “diversity workshop” attended by the thirteen-year-old daughter of friends, I told Anny something like this:  “I’m really glad that you’re learning to respect people of all kinds and to treat them all without bias.  But, please remember that people who go through life seeing everything through the prism of a mistreated minority see many problems and slights that just don’t exist, or simply make themselves far more miserable than they need to be.”   In a world where the majority of law students are female and there are examples of successful women in every facet of the profession, fretting over gender gaps and “imbalances” seems like misplaced priorities and professional masochism to me.

Richard Ames left a particularly tart Comment at Sherry’s weblog:

The old guard men are getting old, retiring, dying in droves. I don’t see condescending behavior toward women among my male contemporaries anymore than they are likely to be condescending to me or any other man I know. Women in the profession who think they aren’t being “taken seriously” would do well for themselves if they stopped dramatizing “women’s roles” in the law, and simply got on with practicing it.

If some sectors of the legal profession seem to have too few women, the “problem” may be that not many women find the field suitable or enjoyable — because of its substance, hours, clients, etc.  They choose not to enter those fields or choose to leave them, because in 2004, they have that choice.  Of course, the choices may be made without enough good information, but that’s true for both genders.  And, yes, in many instances, a managing partner or pure chance helps make the choice for the new lawyer, but that also happens with regularity to males.

 

  My personal experiences may not be representative, but they have been diverse over the past three decades, and I have never seen gender keep a woman from entering a particular field of law, being judged on her own merits, or succeeding.  Like professional sports, the legal profession is outcome driven and highly competitive; it cannot afford to waste or misdirect talent because of gender biases. 

 

• Holding stereotypes about what interests women or male lawyers will often turn the assumer into an ass.   For example, over 20 years ago, there were quite a few female lawyers in management, and many women staff attorneys, doing antitrust law at the FTC — and, I was the one left out of the sports talk at the water cooler, since college basketball never interested me, but several women were rabid Tarheel or Hoya fans.  Also, when I asked to temporarily go on part-time status, in 1980, to prepare to teach antitrust as an adjunct professor, a male manager said, “Oh, you mean that program for women.”   Of course, I immediately reminded him that I would use that quote in my discrimination suit, should he fail to approve my request.  (It was approved.)

Where I’ve personally encountered efforts to genderize law-related selections and programs, the results have been inane or ludicrous.  For example: 

1. The female head of a search committee for a non-profit children’s rights group told a staffer that only a woman could head the organization due to its subject matter.   They passed over a male applicant with far superior experience and credentials to name a woman director.  A few years later, thankfully, when the position was again open and the search committee was gender neutral, the same male re-applied and was chosen on the merits.
   
2. A local family mediation service used two mediators for each session, despite a lack of trained volunteers, because the program’s board believed no woman would feel comfortable if there were only one mediator who was male.   This rule delayed the scheduling and resolution of the program’s entire caseload, and complicated mediations with the unwieldy co-mediator structure.  Because there were far fewer male volunteers, the organization finally ruled that it would be okay to have two women serve as mediators on the same case, but never two men (again, because of the general assumption that the woman client would feel at a disadvantage).     

There is nothing to gain by trying to achieve gender “balance” in various sectors of the legal profession.  In twenty years or so, when a majority of lawyers are women, such goals will seem silly — as I’m sure my female colleagues will ably inform the complaining males.  

Afterthought (01-04-04):   Carolyn Elefant asked on her site yesterday whether there was anything unethical in trying to build a business by catering to the gender or ethnic preferences of clients.  My reply there was as follows:  “I see nothing inherently wrong with using gender or other demographic characteristics to build a business.   A client’s comfort level or other preferences are important.   A problem would arise, I’d think, if the lawyer were misleadingly suggesting that his or her demographic characteristic(s) would assure better results, or if the marketing were done in a manner that demeans any group, or suggests that the lawyer is practicing unlawful or unethical discrimination or would pander to the client’s bigotry.”