Elina Tetelbaum: "Is it ethical for a law firm to remove a lawyer from a case because a jury might be prejudiced against that lawyer?"

This student article is based upon the well-known hypothetical -- the Karen Horowitz Dilemma -- penned by our own Stephen Gillers and included in his textbook.  The hypo generates great classroom discussions about the relative importance of winning a case for a client and combating prejudice.  Abstract

Is it ethical for a law firm to remove a lawyer from a case because a jury might be prejudiced against that lawyer? What if considering the attorney’s demographic identity would maximize the client’s chances of litigation success? This Note explores the tension between the duty of zealous advocacy and the anti-discrimination principles within the legal profession. It concludes that current ethical rules governing litigation tactics do not meaningfully guide firms in deciding which principle should triumph in the context of staffing cases. Without guidance from the Model Rules of Professional Conduct or the Model Code of Professional Responsibility, law firms may engage in practices that can severely limit litigation opportunities for attorneys with attributes that have been historically discriminated against. The Note proposes ways that the legal profession might regulate conduct pertaining to attorney’s identity-baggage in litigation.

Comments

[Monroe Freedman]

My sense of ordinary morality tells me that the fiduciary obligation that I have voluntarily assumed on behalf of my client takes precedence, unless (1) I have informed my client of my contrary priority in advance, or (2) my client voluntarily agrees that supporting this issue of social justice is worth taking the risk of his being executed, going to jail, being deported, or losing custody of his child.

[Judith]

I think there are two separate issues. If the client is prejudiced against the attorney v. if you believe the judge or jury is prejudiced. I think if it's your client you should do your best to change the mind of the client. On the other hand, if the judge or jury is likely to be prejudiced, it's against your fiduciary duty to the client to allow that person to represent the client's interest.

Run the thought-experiment with a non-gender/racial bias, for example against New York attorneys in the South. Would you send your NYC attorney to represent you in the deep South? You're likely better of hiring a local at least in addition to your NYC lawyer.

[David Hricik]

I think you have to put your client's interest ahead of the social interest that persisting obviously represents.

As an anecdote, and sort of the mirror image, years ago we were trying a case and our paralegal, a female, happened to be quite attractive. The second day of trial, suddenly a very attractive, and somewhat provocatively dressed, paralegal showed up for the other side, who did nothing but sit there...

[john steele]

Three anecdotes about the hypo, which gives a great opportunity to weigh zeal against important value.

I used a variation of that hypo in class one day, and about 60% of the class felt that the woman should not be used in front of the jury. Passions ran pretty high, but the debate remained civil and productive. A few weeks later, we had a guest in class: the then City Attorney of Berkeley, Manuela Albequerque, who had deep knowledge about legal ethics for municipal lawyers. In passing, she told an anecdote about always wearing her sari to court, even in rural counties where her clothes might seem odd to some. One of my students related the hypo to Albequerque and asked her to comment. Albequerque said that we must never given in one inch to prejudices, that we should trust that a good lawyer will forge sympathies across the categories that divide us, and that we are not serving the rule of law if we acquiesce to injustice. About 40% of the class erupted into applause.

Another year, a student in the front row, a woman of color, turned around to face her classmates and made an impassioned speech about not giving in to prejudice. As she was winding down her exhortations, she turned around again to face the podium, and finished by saying that “if our generation doesn’t end this kind of prejudice, the profession will remain the province of middle-aged balding white men!” I rubbed my expansive and ever-growing forehead and asked, “did you really have to toss in the part about balding?” The class erupted into laughter and I’m not sure I’ve ever seen anyone turn redder than she did. (We talked afterwards and I assured her there were no hard feelings.)

Another year, I used the hypo at a school other than Berkeley, and I couldn't get *any* discussion going. Every student, except one, said it was a no-brainer: the woman lawyer needed to stand down. I finally asked the students why there wasn't more disagreement and described how the discussion usually goes. The one student said, "well, that's just Berkeley for you."

[coach handbags]

One thing that confuses me about this video and related comments is the suggestion that the audience is 'pre-empting' the pentatonic scale. While they certainly do pre-empt the major third, which is fascinating in itself (and i suspect there are myriad theories as to why this happens, both cultural and physical), all other notes in the pentatonic scale are introduced by Bobby first, before the audience sings them. Therefore, the audience is merely replicating the notes on demand, and in different octave registers, so I fail to see how this demonstration shows the "deep connection between the pentatonic scale and the human brain"