Category Archives: Law: Ethics

Orin Kerr points us to an article at law.com:

In a pact brokered by the New York County Lawyers’ Association, more than 60 law firms have agreed to tell their corporate clients the composition of assigned legal teams by race, gender, ethnicity and sexual preference.

For several years, clients have asked law firms to sign statements in support of diversifying the legal profession. But with the formal agreement, firms have volunteered to put hard numbers behind their noble aspirations. According to the pact, “law firms should not object to requests by their corporate clients [to] report the number of hours devoted to the clients’ matters by minority lawyers.”

It’s nice that clients don’t want to employ either bigots or those who, even by lack of effort, have failed to overcome a legacy of discrimination.

But immediate consequences are clear, said Robert L. Haig, a partner at Kelley, Drye & Warren, one of the first large Manhattan firms to sign the agreement.

“When that number is put on the table and it’s a small number, then the great enthusiasm for diversity is a little suspect. The client might say, ‘We can’t hire you for the following year,’” Haig said in an interview. “Right then, that law firm is going to change. They’re going to do what they have to do in order to be retained again and again.”

He added, “This is economically driven, and that’s what makes it powerful.”

Haig, a former president of County Lawyers, the nation’s first bar association to admit minority attorneys, was one of about 30 attorneys who formed a County Lawyers task force on diversity. The effort was launched in 2000 and headed by Juanita Bing Newton, administrative judge of New York City Criminal Court and deputy chief administrative judge for Justice Initiatives at the Office of Court Administration.

But suppose the shoe were on the other foot? What if the clients wanted low numbers of minorities? Then we’d all be revolted. The parallel is far from perfect: excluding minorities is illegal and immoral; demanding their inclusion is legal and praiseworthy. But is the mechanism appropriate?  In general I’m in favor of people voting with their buying dollar to support suppliers whose values they share, and to avoid sellers with bad values even when they have good things to sell.

But I’m also instinctively uncomfortable with anything that smacks of racial quotas. Yet it is undeniable that law firms, especially big corporate firms, have not done everything they could to diversify. Some of the older troglodytes even seem to believe that the clients may harbor suspicions of minority lawyers.  So it’s nice to see pushback from the clients.

And yet.

[Original draft 5/13/2005.  As part of my blog redesign, I’ve been going through draft blog posts that somehow never made it to publication. This is one of them.]

2011: Subsequent research by one of my colleagues suggests strongly that big clients, at least, really couldn’t care less about diversity among their lawyers; big firm clients may talk a great deal in public about demanding it, but it doesn’t even show up on their general counsels’ list of important factors determining law firm choice when speaking in private.

Here’s a real-life event that might make a good short-answer problem for a Professional Responsibility final exam.

Today I received an email purporting to be from a law student. The sender’s email address was [common-first-name]@edu-student-mail.org. The subject line was “Suggestion for your page [URL]” with the URL being a fairly obscure page from an Internet law seminar I gave in 1998.

Here’s the text:

Hi!

I came across your site today while doing some research on intellectual property for one of my law classes. You provide some really great resources, but on your page http://www.law.miami.edu/~froomkin/sem98/sem11.htm I tried to click on your link to http://www.eff.org/pub/Intellectual_property and it doesn’t seem to be working. I also found this page in my research which could provide similar information if you wanted to check it out 🙂 [here followed a URL to a site advertising personal injury lawyers that I’ve cut out to avoid rewarding this behavior].

Best,

[First-Name Last-Name]

I responded with an email asking what law school she attended. Haven’t gotten an answer.

Suppose, just hypothetically (we have no reason to believe this at present), that the name is a fake and this was in fact an advertising message for the California PI firm sponsoring the website in the message.

Is this (hypothetical) duplicity banned by the California legal ethics code? I’m not a member of the California Bar, so I don’t know the answer to this one. A cursory glance at Rule 1-400. Advertising and Solicitation. makes me wonder if there isn’t maybe a gap in the rules.

The California ethics rules prohibit making false statements to potential clients, actual clients, opposing parties, and the courts. They also prohibit false statements to third parties about cases in which the lawyer is involved. But there doesn’t seem to be anything about hiring an agent to make a false statement to a third party (me) designed to get (let us hypothesize) accurate publicity for the lawyer, that is a link to the firm’s site.

The rules do say, among other things, that

A communication [defined as: “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client”] or a solicitation [“any communication: (1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain;”] (as defined herein) shall not:

(1) Contain any untrue statement; or

(2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public

It doesn’t seem to me that, true or false, the email I quoted above qualifies as either a “communication” or a “solicitation” under these rules. So I have to think it is not covered.

But shouldn’t sleazy lying marketing designed to promote a website be as unethical as a lie to a potential client or lies on that website?

Maybe the person who sent that email was real. But even if she is, the gap in the rules this email made me think about may be real too.

(I’d welcome enlightenment from anyone more familiar with the California rules.)

[Original draft 2/2/10.  In preparation for my blog redesign, I’ve been going through draft blog posts that somehow never made it to publication. This is one of them.]

12/12/2010: Never did get an answer to my email.