Is the race or gender of a lawyer relevant to how well the lawyer represents the client?

Great Debates
1

Sometimes, of course, there are tactical considerations that make this answer an obvious one: yes. A female attorney can be a good choice at trial defending a rapist, for example.

How about in more diffuse cases? In legal terms, a class action lawsuit is one that involves a large number of people with the same basic claim against a single defendant. If Bank of America, for example, were revealed to have systematically defrauded each client of $1.75 in improper fees, each client has a cause of action against Bank of America, but for each of them it’s not worth it to sue; the filing fee alone would eclipse their damages. But that lets Bank of America get away with millions in ill-gotten gains. A class action allows a lawsuit to collect each of the individuals and certify them as a single “class” of plaintiffs. The lawsuit can then go after the total fees from all the class, which makes it worthwhile.

But of course, while an individual can choose his own lawyer, the class can’t; the members must take the lawyers available. In an effort to make sure that lawyers have the appropriate skills to manage the class actions they undertake, Congress passed the Private Securities Litigation Reform Act, which provides that judges must approve the selection of lawyers representing the class.

Specifically, it says that from among the class members, “the most adequate plaintiff” must be chosen, someone who can fairly and adequately protect the interests of the class. That plaintiff, with the court’s approval, can choose the lawyers for the class.

I lay all this background to ask this question: should a judge use this class approval power to ensure that the lawyers working on the case are sufficiently ethnically and gender diverse?

Because that’s what Judge Harold Baer, Jr, just did. In an order noting his power to approve lead counsel, he directed the two firms involved in the litigation to “make every effort to assign to this matter at least one minority lawyer and one woman lawyer with requisite experience.” His reasoning was that “…this proposed class includes thousands of participants, both make and female, arguably from diverse backgrounds, and it is therefore important to all concerned that there is evidence of diversity, in terms of race and gender, in the class counsel I appoint…”

I think this is a good example of a case that will highlight the difference of opinions in the role of judges. Those who believe judges should simply do the best thing, as sort of super-legislators or philosopher kings, will not have much heartburn with this order.

But this kind of order is beyond the judge’s ken. There is nothing in the law entitling him to consider race or gender of the lawyers. This is securities litigation; it has nothing to do with racial or sexual discrimination, where at least his order about minority representation might fit a bit better.

In interviews, it appears the judge is simply concerned about the general issue of diversity in law firms, and is using this platform, as it were, to force firms to emphasize diversity. That’s a fine goal… but not using his bench to do so.

2

While there probably should be more diversity in law firms, I don’t understand the judge’s decision here.I don’t know that a black plaintiff is inherently better served by a black attorney, or a female plaintiff is inherently better served by a female attorney.

3

Well, in this case… that a class that includes black plaintiffs in a securities action is better represented by having a black lawyer on the team.

4

Yes, but I don’t see why. Is there something unique about the black investment experience or something like that that makes a black attorney better able to represent a black plaintiff in a securities action than a white attorney?

5

The decision promotes the very notion it seeks to redress.

By calling out a class of lawyers for special consideration, the judge is propagating the opinion that female and minority lawyers are unable to make their own way.

This does not automatically make it an unworthy suggestion, but the putative reasoning regarding the represented class is a bit contorted.

How about just having a side-bar conversation with the firms’ representatives and saying, “By the way guys, do me a favor and make an effort to open up the gravy train to women and minorities…”

6

Female defense lawyer in miniskirt: might help.

Male defense lawyer in miniskirt: … not so much.

7

Is there anything in the law that forbids him to consider race and gender of the lawyers?

8

I don’t know.

By that I mean: the actual text of the law is silent on any such considerations: 15 § 78u–4(a)(3)(B)(v) says only:

This would appear to constrain the selection to the court’s discretion, and his order would be reviewed by a higher court for abuse of discretion, which is a very high standard to overcome. The reviewing court would have to say not just that they would have done it differently but that no reasonable judge could have done what he did.

In general, though, language that imposes a specific quota of minorities has been struck down: in Regents of the University of California v. Bakke, generalized policies supporting inclusion of minorities was upheld but the quotas were not. This was reaffirmed in Gratz v. Bollinger. So my sense is that this highly specific “at least one” language would not survive even an abuse of discretion ruling.

But it’s not my area of law, so I welcome commentary.

9

The thing is, as a minority, there are times where I have absolutely felt a white man would not support me in the way I’d want to be supported. They have not lived my life, nor the life of any minority, so absolutely there are situations where we will not see eye to eye.

However, in the case of a lawyer, I do not see the same thing. The thing that is important is whether the lawyer is going to fight for their rights the whole way or not. BoA defrauded ALL of their constituents, regardless of color. If it came out that BoA was only defrauding, say, their Hindu constituents, then I might consider that a non-white lawyer might be more reasonable, but I’d still be unsure - what, specifically, can a non-white lawyer bring to the table that a white lawyer cannot? What does this judge think a minority lawyer can bring to the table that white lawyers cannot?

In this case, especially the case itself has nothing to do with color and just with money, insofar as I can tell.

WHY did the judge say this? Just to make it look nice and neat? Another question: In a class-action lawsuit, how much involvement do the lawyers have with the individual constituents? If you and all of the lawyers on the Dope were representing the entire Dope message board against someone, how much time would YOU (or any given lawyer) be talking to ME? And what is the breakdown? How many lawyers per person? How big of a class action lawsuit can one lawyer take on, or does it always have to be multiple lawyers? If I was part of this lawsuit, and the judge managed to get some non-white lawyers, could I specifically ask to work only with a minority? What good does it do me, is what I am saying.

(I am so tired of typing “lawyer”!)

10

Many goy litigants/clients have been well served by circumsized Jewish lawyers .

To be denied access to that talent pool seems somewhat unjustly restrictive.

11

From a non-law point of view, my perception of a class action lawsuit is that of a huge money-maker for the lawyers. The Class is going to wind up with little to no ‘relief’ from the suit. It seems to me that the lawyer who gets the right to represent the class is basically awarded a huge opportunity to profit from it. If it is the case that most of these class action lawsuits have disproportionately lined the pockets of white male lawyers, then I don’t really have too much problem with what the judge is doing.
If plenty of women and minority lawyers participate in gorging themselves at the class action lawsuit trough, then I’d give the judge a big ol :dubious:

12

I don’t think he is. That sounds like a restatement of the arguments in opposition to years of civil rights legislation and decisions – that any attempt to remedy inequality must be predicated upon a supposition that the inequality is naturally occurring, and so institutional remedies are inadequate. It was wrong then and it’s wrong now. Acknowledging under-representation is not an acknowledgment of the inferiority of the under-represented. That’s the whole basis for equal protection law; institutionally created ills can be remedied institutionally.

To answer the question of the OP, though, I’d say no, pretty clearly not in this case. One of the things that has always frustrated me about constitutional law arguments is that nearly nobody is willing to give credence to the idea that some problems are so thorny and complicated that you can’t avoid shitty outcomes, sometimes. I think in this particular case it’d be ridiculous to make a big deal out of a lack of women or minorities in the group of attorneys representing the class. On the other hand, though, I don’t think it’s even possible to isolate this case entirely and say “OK, here is an example where there’s no inequality and nothing to worry about,” because I don’t know how to draw that line. So I’m not really that upset about this approach, it’s true; but not because I think judges should be elite benevolent dictators or because I think it’s the right thing to do. I just think that if you want to have a particular effect from a macro view (and I think minority & female representation at the highest levels of a particular field is a legitimate goal to try to effect) you’re going to have to break some eggs, and it isn’t going to be tidy all the time.

To be clear, I do agree, also, that there’s no support for the idea that a judge can impose these kinds of guidelines on his own say-so. He’s clearly out of bounds as far as I can tell.

13

The judge probably CAN do it. I mean, I don’t think his decision is going to be overturned. The question is, if he should do it.

14

Here’s a link to the filing in the OP, regarding Judge Baer’s order:

In that filing, Baer refers to a previous case of his, a class-action suit agains JP Morgan Chase.

So then here’s a link to the JP Morgan Chase case: http://amlawdaily.typepad.com/JPclass2.pdf

That case specifically dealt with a charge of age discrimination in the way pension plan was designed. In discussing the appointment of class counsel, Baer, after ticking off some basic, undisputed, points that the suggested firms are qualified & have experience in the matter, offers an expanded line of thinking regarding certifying a class counsel:

Baer goes on to indicate that he’s a little concerned about the fact that three different firms are asking to be certified as class counsel and tells them that he’ll be keeping an eye on their billings.

So according to his previous orders, Baer claims he has legal precedent for including other factors which he considers important when choosing class counsel and a special duty to ensure that all members of the class are adequately represented.

I’m not going to read through each of Baer’s cites for his authority to include other issues in his decision to appoint class counsel. I just note that he seems to feel he’s on solid legal ground. I wonder if the outcome of the earlier case touched on Baer’s diversity requirements? I don’t know. I wonder if it was appealled?

Is there an easy way for a non-lawyer to look all that up?

Anyway, I think it’s worth noting that Baer’s requirements for diversity are specifically in the context of class action cases where he’s personally appointing multiple attorneys to represent many individuals, each of whom are being denied a personal choice in the matter.

I would say he’s erring on the side of caution but it’s good to be aware of the court’s duty to each individual as well as to the class. But that’s my non-lawyerly take on it.

15

It would be nice if he could have explained this:

In other words, why does the fact that the proposed class includes males and females arguably from diverse racial and ethnic backgrounds make it important that there’s evidence of diversity in class counsel.

16

I wonder if some of the unexpressed motive might be to get minority lawyers, not for the benefit of the case, but for the benefit of minority lawyers. You know, affirmative action, of the sort that its proponents sometimes claim they want, where you don’t hire unqualified people, just pick out from the pool of presumably qualified applicants members of some favored class or other.

Because it seems there is no attempt to assert what benefit this kind of diversity brings to a lawsuit - just the assumption that it must, and therefore the desire to be inclusive can be enforced.

Obviously this kind of thing only works one way - I can’t imagine any judge in his right mind arguing that an all-white jury is best qualified to judge a white defendant.

Regards,
Shodan

17

I dunno; I really think he can’t. To the extent his action here had any effect, it seems like it was pretty obviously discrimination on the basis of race (and gender), and especially with the current Court I can’t imagine that surviving scrutiny. The only thing taken into consideration was race (or gender) and that’s a big no-no.

Of course, if his “make every effort” language wasn’t backed up by any enforcement, that would change things, but I’m pretending it had the effect it was presumably intended to have.

18

The impression I get from his extended argument in the Morgan Chase case was that he feels like he has a special duty - and a legal right - to take into consideration that, in appointing lawyers for the class action, he is imposing lawyers on individuals, lawyers with whom they, as individuals, might not be comfortable. That being the case, he’s trying to increase the chances that there might be some lawyer on the team who might seem relatable or approachable to the individuals in the class.

At least, that’s how I read his argument.

19

I completely agree with your point here about the need to institutionally remedy institutionally-generated inequalities. And my personal support for AA goes well beyond that; because I believe that whole groups are disparately-enabled by genes as well as institutions, and because I believe that diversity is a reasonable primary goal for society, I am in favor of group-based (gender or race, e.g.) quotas as a remedial mechanism for persistent disproportionate representation.

That’s not the point I was trying to make, though. The point I was trying to make is that even though such a remedy of enforced (or, in this case, strongly-recommended) preferential inclusion may be appropriate because of genuinely unfair history of discrimination, it nevertheless results in an impression that said groups cannot currently compete on their own. This has always been an unfortunate consequence of AA, whether it is a fair consequence or not, and its impact is worsened when admission standards are altered artificially. (In this case the admission “standard” would be highly artificially colored by the judge’s personal assessment of who should be entertained as a candidate lead attorney.)

20

What’s the difference between a judge saying “put some women and minorities on the case” and the same judge privately saying “gee it would be swell if there were some women or minorities on the case” Do you think the second is better for the female and minority attorney’s self esteem?

Preference for white male professionals is a fact in corporate America. Its not something you can’t overcome but its there. I don’t know if this is the best way to deal with it or if it makes any sense whatsoever to say that a black plaintiff is best represented by a black lawyer but lets acknowledge that the playing field isn’t level and then address whether this judge’s actions were appropriate.