Diversity Shall Set You Free

Class: Professional Responsibility

Professor: Steven Gillers

Topic: Do ethical problems arise when it is a law firm’s policy to promote “diversity” among attorneys working for a client?

A few scenarios:

1. A client is not aware that the firm makes selections of who will work on a particular problem based on “diversity”

2. A client demands the diversity from the firm

Most of the class was spent discussing the first situation. A classmate was vigorously claiming that not only is there no ethical problem, law firms and their clients should be “made” to promote this type of diversity regardless of the talent of the lawyers selected. This was necessary, of course, because of the long standing problem of law firms only using “white males” on big issues and important clients while “nominally” hiring homosexuals and minorities as a façade to fool the world into thinking they were progressive. This, he argued, had to be changed (by force apparently) if we were to really get to real diversity in the legal world. I can’t really say definitively, but for the record, it was almost plain to see that this student was homosexual. Mannerisms and the unusual effort in defending such a diversity policy was the tip off.

Luckily, before my head exploded, a fellow traveler chimed in with the common sense argument that it would be foolish for a project manager to assign minorities who specialize in tax to a client with an employment problem simply because they were minorities and diversity would be promoted on a micro level. This is a great example of taking a principle and showing just what kind of absurdities will result if you actually stand by it. Bravo fellow classmate.

During the conversation the problem of ethical obligations to the client had seemed to get lost in the unrelenting demands that diversity be sought at any cost. But what of the ethical obligations? Picture yourself as a client coming to a law firm with a serious problem that is causing you ulcers and loss of sleep which most legal problems do. After paying a retainer and further obligating yourself to pay a small fortune for the services to be rendered you happen to find out that the associates assigned to your case were selected because of the color of their skin or because of their sexual particularities. Now imagine you then discover that there are a number of associates who happen to be white males that are more experienced in the area of law concerned. Worried, you ask the partner why they chose the associates they did and s/he tells you “diversity.” A response from a sensible client would be “you're fired”

The idea that a client should have to put themselves in legal jeopardy for some societal engineering project that they didn’t sign up for is ludicrous. The most important obligation in a lawyer-client relationship is that of the lawyer keeping the interests of the client first. How can one argue that putting some vague societal goal before that of your client’s interest doesn’t violate this principle? If the client loses his case or legal position wouldn’t this be grounds for a malpractice suit? Model Code of Prof’l Responsibility R. 1.7(a)(2)

The second scenario presents no ethical violations running from the firm to the client, but I would argue that it leaves the firm open to a big fat discrimination suit. A client comes to the firm and demands that the associates working on his problem are all minorities. If a firm agrees aren’t they breaking every discrimination law on the books?

“Hey Dan, just heard we got a really interesting products case coming through. Looks a lot like something I dealt with a few years ago. When do you want me to schedule a meeting with the client?”

“Oh, yeah Jim, sorry you can’t work on it because you’re a white male.”

“Do you want to just write me a check for the settlement now Dan or wait till I actually file suit?”

As a libertarian, I think clients should be able to hire whoever the hell they want. If that means they only want to hire white guys over the age of 40 it’s their decision. If they are dumb enough to believe that a lawyer, to be good, must look like Matlock they are the ones that will suffer for their own ignorance. But of course using liberal arguments against liberals is a libertarian pastime that I will never give up.