Jana R. DiCosmo, Esq. dedicates this article to her family for their support and encouragement throughout this and many other endeavors. She also expresses special thanks to Professors Serena Williams and Patrick Johnston of Widener University Delaware Law School, and to Jessica Miller, Esq., for their insightful feedback on this article. Ms. DiCosmo is a graduate of Stockton University and Widener University Delaware Law School. She is a Deputy Attorney General for the Employment Counseling and Labor section of the Office of the New Jersey Attorney General. Disclaimer: The opinions expressed herein are those of the author and are not necessarily the opinions of the Office of the New Jersey Attorney General or its officials.
Does a lawyer who manifests his or her racist beliefs during the legal representation of a client display a fundamental lack of competence to practice law? This article posits that there is at least one instance where the line between personal freedom and professional judgment is clear: Lawyers who manifest racist attitudes not only prejudice the administration of justice and tarnish a very noble profession, but such lawyers also call into question their very competence to practice law.1
Part I examines cases involving bar applicants and lawyers who used racist speech and how the courts have traditionally viewed ethical violations involving racist speech.2 Part II discusses the current academic literature on character and fitness in the context of lawyers who use racist speech. Part III analyzes racism as more than just a question of morality, but rather as a fundamental issue of competence. 3 Part IV discusses the role law schools can play in changing the culture of lawyers. Part V concludes with issues of enforcement.
This article recognizes that there is no Orwellian Thought Police and that intentionally disguised and unconsciously held racist beliefs cannot be addressed unless such hidden beliefs are brought to light. Accordingly, objective measures––racist speech and conduct––are a necessary proxy for the analysis as to whether a lawyer has failed to competently represent his or her client. Racist speech is defined as the use of racial slurs,4 racial epithets,5 and racial innuendos6 while acting as a lawyer during or after7 the conclusion of the legal representation.8
Within the context of this discussion, the parameters of legal representation include any speech or conduct that occurs in the presence of one’s client or while acting on the behalf of one’s client. More specifically, such parameters also include any speech or conduct that occurs in the presence of a judge or other lawyers while acting on behalf of a client. This speech could be written in documents or correspondence filed with the court or communicated with one’s client or opposing counsel. Legal representation does not include, however, speech or conduct by the lawyer while not acting in the course of a legal representation. Private conversations between lawyers and spouses in the privacy of their homes, for example, are not included in this article’s definition of legal representation. While such speech or conduct may raise questions of personal morality and professional competence, those questions are beyond the scope of this article.
Part I: Racist Speech and the Courts Today
The administration of justice is one of the most important functions of a civil society. The effectiveness of the judicial system depends on the public’s utmost trust in the fairness of those charged with the administration of justice. In the cases that follow, the most common reason courts cited for disciplinary action was to send a message to the entire bar that racist speech cannot be tolerated in a judicial system that prides itself on the equality of justice.
To date,9 racist speech by lawyers has been viewed primarily as a violation of ABA Model Rule of Professional Conduct 8.4(d).10 Despite readily characterizing such speech as “misconduct” under the code of ethics for each state, courts have not considered whether the use of racist speech by a lawyer during the course of legal representation indicates a lack of competence to practice law.
The courts seem to recognize that the professional consequences of racist speech vary depending on whether the offender is a bar applicant or has already been admitted to the bar. After all, it would be problematic to hold bar applicants to the standards of a professional system to which they have not even been admitted. For those not yet admitted to a particular bar, state bar admissions committees frequently have held the appropriate sanction to be the denial of bar admission.11 Matthew Hale, a self-avowed white supremacist, is often cited as an example of a bar applicant denied admission to the bar due to his past and current racist speech and conduct.12 His speech and conduct, coupled with his refusal to renounce it when his admission into the legal profession was at stake, amounted to a “monumental lack of sound judgment” in the eyes of his hearing panel.13 The hearing panel felt that it was only a matter of time before Hale would violate one or more of the Model Rules of Professional Conduct. When Hale appealed the hearing panel’s decision, the reviewing court agreed with the conclusions of the panel, affirming the denial of Hale’s admission to the bar.14
The hearing panel’s concerns were prophetic. In 2006, Hale was sued by a church for trademark infringement because Hale used their church’s name as the name of his own church even though the two churches were not affiliated with one another.15 Though originally ruling in Hale’s favor, the district judge was forced to enter an order against Hale when the Seventh Circuit reversed and remanded the case.16 After entering this order, Hale made disparaging anti- Semitic comments against the district judge and attempted to enlist the help of one of his followers to assassinate her.17 He was convicted for conspiracy to commit first-degree murder.18
Lawyers Admitted to the Bar
Once admitted to the bar, lawyers are subject to many more forms of discipline, including private or public reprimands, temporary suspensions, and permanent disbarments. Courts have held that the use of racist speech by lawyers violates ABA Model Rule 8.4(d), or its equivalent in the individual state’s code of attorney ethics, because the racist speech was prejudicial to the administration of justice. The very accusation of racism among officers of the court casts doubt in the minds of the public and damages the perception of the legal profession as one based on integrity and fairness.19 The following cases may comprise only a small fraction of all the instances of lawyers disciplined for racist speech since some cases vaguely reference racist speech as the offending conduct without specifying exactly what was said.20
Racist Speech Written in Court Documents and Correspondence
Even lawyers who violate the Model Rules of Professional Conduct with good intentions are still subject to discipline. In Panel File 98-26,21 for example, a lawyer was disciplined for filing a motion in a criminal case to prevent opposing counsel from bringing an attorney of color to be co-counsel.22 Her intention was to prevent opposing counsel from improperly introducing racial tensions in a case where she believed race was not an issue.23 Once the lawyer realized the gravity of her actions, she immediately withdrew the motion from the court, without preventing the defense from having the counsel of their choosing.24 The lawyer also apologized profusely.25 The lower court held that the lawyer’s sincere remorse mitigated the seriousness of the offense and imposed a private censure.26 On appeal, the state supreme court reversed, holding that the sincere remorse, though laudable, is not a mitigating factor when the offense could have prejudiced the administration of justice by depriving a criminal defendant of the counsel of his choosing simply because that counsel was African American.27
In another case, an attorney with less admirable motives filed a brief filled with racial slurs and sarcasm.28 Referring to the defendants as “members of the black underclass,”29 the brief continued: “The apparent motive of [defendants] was to be relocated into municipal public housing so that they might suck at the teat of the welfare state forever.”30 For these and several other racist comments, the court publicly censured the attorney who filed the brief, holding that the comments were “flagrantly unprofessional” and “degrading to [this] tribunal.”31 In other words, the use of racist speech in court documents was prejudicial to the administration of justice because of the disrespect it showed for both the defendants and the court.
In MacDraw, Inc. v. Cit Group Equipment Financing, Inc., a judge publicly censured two lawyers for sending the judge a letter questioning his impartiality based on their belief that the judge, an Asian American, would be biased in favor of their opponents, also an Asian American.32 The letter stated, in part:
Finally, as you may know, Mr. Orfanedes and I [the two lawyers subsequently sanctioned] have been involved in very highly publicized and significant public interest litigation…which involves a Mr. John Huang, Ms. Melinda Yee and other persons in the Asian and Asian-American communities… Recently, we came upon a document in this case which mentions your name in the context of other prominent Asian-American appointees of the Clinton Administration… Accordingly, could you please formally advise us whether you know either of these individuals, as well as what relationship, contacts, and/or business, political or personal dealings, if any, you have had with them, or persons related in any way to the Clinton Administration. Please also advise us if you had seen the enclosed or similar newspaper articles or press accounts before this case was tried…33
Upon reading the letter, the following exchange occurred:
Judge Denny Chin: You are conceding that … you asked questions of the court, at least in part, because of my race?
Mr. Klayman [attorney]: In part. And let me tell you why. And I would [have] asked questions because you’re also a recent appointee of the Clinton Administration. Has nothing to do with it. But you have been active, your Honor, for instance, in these kinds of efforts. And I commend you for your activity on behalf of the Asian-Americans, with regard to the Asian-American Legal Defense Fund and being president of the Asian-American Bar Association. I myself have been active in similar types of things and am fully supportive of those activities.
But we are all human, and sometimes, sometimes subjective criteria can unwittingly, no matter how ethical, no matter how decent, no matter how honest someone is—and we believe you to be that—they can subjectively influence our decision-making. I, for instance, would not sit as a Jewish American on a case that involved a Palestinian. I wouldn’t do it if I was a judicial officer just because of a lot of things which enter into the subjectivity of all our thinking…
Now I believe your Honor has to search his own soul to a large extent. There may be independent legal requirements here on whether or not you wish to advise this court of some of the questions which we asked, which are benign, which were posed in a very respectful way. We ask this letter be made part of the court record.
Judge Chin: The letter has already been docketed. I am not going to search my soul. I do not need to do any soul searching at all. The letter is offensive. I do not think it is benign nor do I think it is respectful. Not at all.34
Judge Chin had never met Mr. Huang or Ms. Yee, and the only characteristic they shared was their race and being cited in a newspaper as active in the Asian-American community.35 In fact, it seems that the sanctioned lawyers only made the request for the judge to recuse himself based on the fact that both the judge and the lawyers’ opponents were Asian American. It is doubtful that these lawyers would have requested the judge to recuse himself had both the judge and the lawyers’ opponent been White.
Infuriated by the accusation that his race made him incapable of impartiality—a principle to which all judges take an oath36—Judge Chin revoked their pro hac vice status to appear in that jurisdiction, refused to hear any future cases brought to him by the same lawyers, and required each lawyer to submit a copy of the disciplinary opinion to any future judge if they applied for pro hac vice status again in the same district.37 A disciplinary committee later upheld the sanctions “[b]ecause the suggestions in the … letter entailed claims of partisan and racial bias with no factual basis, [and therefore] such charges were ‘discourteous’ and ‘degrading’ to the court… They were also ‘prejudicial to the administration of justice.’”38
Racist Speech Directed at Opposing Counsel
Lawyers who direct racist attitudes toward other lawyers while acting in their professional roles also have been subject to discipline. Depositions, for example, can quickly become the setting of inappropriate speech.39 During an already contentious pretrial deposition, one lawyer told another lawyer, “Don’t use your little sheeny Hebrew tricks on me.”40 The court found the lawyer’s racist speech to be ethical misconduct prejudicial to the administration of justice because he purposefully used a racial slur to disrupt the deposition.
In another case, a lawyer made a less obvious racially based comment against opposing counsel during a deposition.41 The lawyer repeatedly berated opposing counsel, an African-American woman, for allegedly mispronouncing the words “establish” and “especially.”42 When disciplinary charges were filed against him, the lawyer admitted that he violated the Code of Professional Responsibility but raised an affirmative defense that there was a lack of sufficient evidence to establish that his misconduct was motivated by racism. The Special Referee evaluating the disciplinary charges found that the offending lawyer was probably motivated by sexism, not by racism.43 The court reversed, holding that finding to be both absurd and disingenuous.44
As a final example, the Florida Bar publicly censured an attorney who told another lawyer to “go back to Puerto Rico,”45 after calling her a “stupid idiot”46 and accusing her of not knowing “the law or the rules of procedure and that she needed to go back to school.”47 The court held that the lawyer’s “disrespectful and abusive comments cross[ed] the line from that of zealous advocacy to unethical misconduct [that]… shall not be tolerated.”48 Furthermore, his conduct prejudiced the administration of justice because it “disrupted the already difficult…cases.”49
Racist Speech Directed at Clients
Lawyers who direct racist attitudes toward clients while acting in their professional roles have been subject to discipline. For example, during a recess in a courthouse hallway, a deputy district attorney prosecuting two Hispanic defendants for first-degree murder told defense counsel, “I don’t believe either one of those chili-eating bastards.”50 The disciplinary committee found that the district attorney’s “use of a racial epithet while serving as a public official was intolerable and cast the integrity of the legal process into doubt.”51 After considering several mitigating factors, the disciplinary committee ordered the lawyer to be publicly censured as a statement to the entire legal community “that lawyers, especially those acting as public officials, must scrupulously avoid statements as well as deeds that could be perceived as indicating that their actions are motivated to any extent by racial prejudice.”52
In 2004, an attorney was disciplined for harassing a former client and ex-girlfriend over a period of months.53 Perhaps the most appalling evidence was the letter he sent her, signed with the pseudonym “White Aryan Resistance.” The court quoted the letter in its entirety, as follows:
Dear Mrs. Negro….
In case you’re too dumb to notice by now, you ARE being watched. We see it as our duty to keep watch on undesirables in our neighborhoods. You must know why you would be an undesirable.
We keep an eye on where you live, where you work and the college you go to a couple of nights a week. We are hoping that you will just pack up and move back to wherever you came from. Go back and get some of that big jungle cock you colored women crave so much and leave our White men alone.
You might be trying to live White, but you never will be.
Our neighborhood will be much better after you move out. We have not seen those two young thugs of yours around for awhile. Good.
Remember – you are being watched. Every car in back of you could be one of us. Every phone call could be one of us. By the way – your bed looked better with the curved wood headboard. Wear less when you’re typing in the basement. Why aren’t you sleeping much in your bedroom – that big black ass of yours really is something in the moonlight. It should make some jungle bunny real happy.
We’ll see you around. Did you know the lock on your patio screen door needs fixin’?54
This letter was just one of many instances where the attorney used racial slurs and threatening language against his former client and ex-girlfriend.55 The court found that the lawyer’s conduct was so frightening and so egregious that no other punishment but permanent disbarment would suffice to protect the public, the bar, and the administration of justice.56
Part II: Current Literature Addressing Racism Manifested While Representing Clients
To date, the literature about lawyers who use racist speech has been limited to questions of character and fitness under ABA Model Rule of Professional Conduct 8.4(d). When a lawyer’s speech or conduct prejudices the administration of justice, it is the bar’s responsibility to enforce a sanction proportional to the offense.57
Some argue that the very function of bar admission officials is that of gatekeeper and protector of the judicial system, its actors, and the public.58 According to Professor Carla D. Pratt, when an avowed racist who openly uses racist speech applies for admission to the bar, it is the bar officials’ responsibility to deny admission in order to protect the public’s trust in the legal profession and the safety of the administration of justice.59 Pratt uses a Bible verse to illustrate her point: “The wisdom of Matthew 6:24 is infinite. ‘No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to one, and despise the other.’”60 Pratt’s article focused on the Illinois State Bar’s denial of admission to Matthew Hale.61 Pratt continues: If an applicant’s religious canons mandate that the individual engage in conduct that violates the law of lawyering, that individual is presented with a dilemma and must choose which master he or she will serve, for it will not be possible for such an individual to comply with his or her religious canons and be a lawyer if those religious canons command conduct that will violate a rule of professional responsibility.
Thus, if an applicant’s religious beliefs mandate conduct that is contrary to the ethical obligations of an attorney, it is both fair and necessary to exclude such a person from the profession for the purpose of preserving the integrity of the legal system as a whole.62
Pratt’s article expresses a concern about the racist lawyer’s impact on society and clients they might refuse to represent.
Another article discusses the concerns inherent in forcing lawyers to represent clients they otherwise would not, as well as the underlying problems of why such lawyers would refuse to represent clients based on immutable characteristics such as race or sex. This article poses the central question in its title, “Do you really want a lawyer who doesn’t want you?”63 In this article, Professor Gabriel J. Chin questions the wisdom of forcing lawyers to overcome their prejudices in the name of the public interest. Chin expressed concern that the racist or sexist lawyer might become unenthusiastic, less zealous, and perhaps even incompetent, when forced to represent a client belonging to a group of people against which the lawyer holds prejudices.64
Professor Chris K. Iijima wrote a provocative reply to Professor Chin that reframed the question entirely.65 Instead of asking whether a client “really wants” a lawyer to represent him when the lawyer has racist prejudices against the potential client, Iijima thinks the more appropriate question must consider the fact that some clients are forced to choose from a limited market of lawyers.66 In this case, Professor Iijima argues, the better question is “with whom should that power [to choose one’s lawyer] rest?”67 Iijima quickly answers, “As between the potential client or attorney, the answer must be that the power lies with the potential client.”68
The articles by Professors Chin and Iijima are unique because they address the issue of lawyer racism as a competence issue while other articles are often limited to questions of the lawyer’s moral character.69 Both Professors Chin70 and Iijima71 discuss the merits of the concern that a lawyer’s racist ideology may lead to incompetent representation of the client if the lawyer holds prejudices against the group to which the client belongs. Professors Chin and Iijima, like the authors of the other articles discussed, argue that racist lawyers may prejudice the administration of justice. The articles by Professors Chin and Iijima, however, do not critically analyze lawyer racism through the lens of the actual language of the competence-related Model Rules of Professional Conduct. Furthermore, most of the articles fail to even consider whether lawyer racism raises questions of competence at all.
Part III: A Racist Lawyer Is An Incompetent Lawyer
To limit the discussion of racism among lawyers as purely an issue under Model Rule 8.4(d) mischaracterizes the gravity and far-reaching consequences of lawyers who use racist speech during the course of representation. The application of other ABA Model Rules to lawyers who use racist speech illuminates the broader issues of competence and diligence for all clients, not just minority clients “stuck” with racist lawyers.
Consider the following examples.
(1) A White real estate lawyer refuses to represent a homeowner who wishes to have her property rezoned for commercial purposes. His only reason for refusing to represent her is because she is Black.
(2) A White real estate lawyer representing a White client fails to present the highest bid to her client because that bid is offered by a Black businessman. Her only reason for refusing to present the offer to her client is because she believes that the Black businessman cannot possibly be wealthier than the other bidders and, therefore, his bid must be unreliable.72
The first scenario is an example of a lawyer violating ABA Model Rule 8.4(d). The second scenario, on the other hand, is an example of a lawyer violating ABA Model Rules 1.1(a), 1.3, 1.4(b), 1.7(a)(2), 1.16(a)(2), and 2.1.73
ABA Model Rule of Professional Conduct 1.1 requires that a lawyer admitted to the bar act with competence. The lawyer who refuses to present the most profitable bid to her client because her racism prevents her from properly evaluating all options for her client violates the rule’s demand for “thoroughness.”74 While comments to the Model Rules are not binding, they provide additional insight to the rule’s meaning. The fifth comment to Model Rule 1.1 confirms the conclusion that the lawyer from the second hypothetical has failed to competently represent her client by not considering all of the “factual and legal elements” of the available bids.75
The lawyer from the second hypothetical also violates Model Rule 1.3 by not using “reasonable diligence and promptness.” 76 Such diligence and promptness include representing the client’s interests “despite opposition, obstruction or personal inconvenience to the lawyer.”77 It is arguable that the personal inconvenience factor might include dealing with third parties that the lawyer finds to be undesirable, such as the Black businessman from the second hypothetical.
Model Rule 1.4(b) is central to the problem posed by the second hypothetical’s lawyer. When the lawyer’s racism prevents her from presenting the most profitable bid to her client, the lawyer has violated Model Rule 1.4(b) by failing to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”78
The lawyer from the second hypothetical may have also violated ABA Model Rule 1.7(a)(2)’s prohibition on representation where a conflict of interest would impair the representation of the client. Such conflicts of interest are not limited to the representation of multiple clients whose interests do not coincide. The conflicts of interest at issue in Model Rule 1.7(a)(2) also include those conflicts created by the lawyer’s “personal interest.”79 The lawyer from the second hypothetical may have violated Model Rule 1.16(a)(2) by failing to withdraw from the representation after the Black businessman made a bid on the client’s property. A lawyer violates Model Rule 1.16(a)(2) if she fails to withdraw from the representation despite knowing that her own “physical or mental condition” is preventing her from adequately representing her client.80 Even if we cannot classify racism as a mental condition under Model Rule 1.16(a)(2), Model Rule 1.7(a)(2) still requires a lawyer to decline a case if she has strong feelings endangering her ability to independently exercise her professional judgment.
Finally, the lawyer from the second hypothetical also violates Model Rule 2.1 because she has allowed her racist attitudes toward the financial capabilities of Blacks to prevent her from exercising her “independent professional judgment” and giving “candid advice.”81
Analyzing the two hypothetical scenarios described above through the lens of the ABA Model Rules of Professional Conduct helps illuminate some of the less obvious ways in which a lawyer can let his or her racism manifest itself during the course of legal representation. The first scenario is the conduct we typically worry about when discussing racism among lawyers. This is the obvious example of how racism can manifest itself into speech or conduct during the course of legal representation (or the refusal to provide such representation). The case of a lawyer who refuses to represent someone solely because of his or her race tarnishes an otherwise very noble profession.
But the lawyer who refuses to present the most profitable offer to her client is just as dangerous. If she believes that a Black person cannot possibly afford to pay the higher bidding price and wishes to save her client from wasting his time by entertaining such a “fantasy,” then she improperly limits the options available for her client. Such a lawyer is incompetent because her racism prevents her from properly evaluating all of the options she should present to her client. The lawyer’s racism skews her ability to give her client competent representation because of her racist view of a third party she does not represent. This scenario is the less obvious example of how racism can manifest itself in the course of legal representation.
In the second scenario, racism impacts the legal representation in a much more insidious manner. Not only does a lawyer’s view of her own client matter to the ability to provide competent representation. Now we see that the lawyer’s views of non-clients can also hurt the lawyer’s ability to provide competent representation to her client.
The current literature, as previously discussed in Part II, focuses on racist speech and conduct as a violation of ABA Model Rule 8.4(d). While relevant, that limits the focus to the harm done to society and to those who are denied representation by racist lawyers, which is too narrow to understand the entire problem. The existing literature’s central theme is that racist speech and conduct are evidence of a moral character flaw fatal to the character and fitness requirements to practice law. The literature is persuasive, but it is incomplete. Racist speech and conduct are also indicative of a fundamental lack of competence to practice law under Model Rules of Professional Conduct 1.1(a), 1.3, 1.4(b), 1.7(a)(2), 1.16(a)(2), and 2.1.
Part IV: Law Students, Civility, and the Next Generation of Lawyers
A look at the history of Howard Law School may serve us well here. Howard Law School has functioned as the starting point for social change in the past. Charles Hamilton Houston turned Howard Law School into a veritable training ground for lawyers who would be social engineers, i.e., agents of change, in the struggle against inequality. 82 “A social engineer by definition was to be ‘the mouthpiece of the weak and a sentinel guarding against wrong.’”83 Charles Hamilton Houston and Howard Law School became essential to the struggle against segregation. Houston and his colleagues first focused on litigating cases for law school applicants denied admission based on their race.84 Only by building up enough precedent at the post-secondary education level could they hope to have more footing in challenging segregation in public schools at the elementary- and secondary-school levels:85 “The NAACP’s victory of 1954 in Brown v. Board of Education was simultaneously the culmination of the legal campaign based on Charles Houston’s modified strategy carried forward by the NAACP’s cadre of lawyers and a watershed decision in constitutional law with respect to equal protection of the laws.”86 In other words, it was only after Houston successfully argued for desegregation in law schools that the goal of desegregation in public elementary and secondary schools became attainable.
We can take a valuable lesson from this history as we try to find a solution to the problem of lawyers who use racist speech: Law schools can be the starting point for social change in today’s lawyer culture. Some law schools have begun efforts at fostering civility in the legal profession by administering oaths or affirmations of professionalism to incoming first-year law students. These oaths and affirmations indicate an emphasis on civility among students, professors, and future colleagues. The following examples are excerpts from student oaths administered at some law schools in the United States.
(1) As a student and as a lawyer, I pledge to pursue the truth, to promote justice, and to uphold the principles of honesty, integrity, and civility.87
(2) To strengthen the law school community, I will conduct myself with dignity and civility and will treat all of my colleagues – students, staff and faculty – with kindness and respect.88
(3) From this day forward, I promise to do my utmost to live up to the high ideals of my chosen profession. I will remember that my actions reflect not only upon myself, but upon the … School of Law and the legal profession. I vow to be a person of principle, compassion, strength, and courage. At all times, I will conduct myself with dignity and civility and show kindness and respect toward my classmates, teachers, and all persons.89
One of the most promising initiatives is the Illinois Supreme Court Commission on Professionalism, which offers a sample oath for the nine law schools located in the state:
As I begin the study of law, I acknowledge that my role in the legal profession is a privilege that comes with responsibilities. Accordingly, I pledge to support my colleagues, respect the faculty and staff, and uphold the reputation of my school. I commit myself to service without prejudice, integrity without compromise, and to civility and professionalism in all my interactions. I will promote the principles of justice handed down by the generations of attorneys who have gone before me. This pledge I take freely and upon my honor.92
Each of Illinois’ law schools can adapt this sample oath, but the spirit behind the pledge remains the same: to practice law is a privilege, and civility is one of the responsibilities attendant to that privilege. Notably, the Illinois Commission specifically identifies “service without prejudice” as a key component of civility within the legal profession—something not explicitly stated in the previous examples. It is arguable, though, that “civility” encompasses the “absence of prejudice.” In other words, the use of racist speech is antithetical to the very concept of civility.93
Taking a single oath or affirmation at the beginning of one’s law school career may not have the long-lasting effect many law schools would like. Another option is to create an ongoing discussion about the importance of professionalism among law students. Many law schools facilitate several programs in an effort to increase awareness about professionalism among its students as follows: mental health and substance abuse assistance programs and services, written codes of conduct and integrity, associations with the Inns of Court, professionalism lectures and seminars, mentor programs, law office management courses, professionalism orientation programs, pro bono/ public service programs, and diversity sensitivity training courses.94
By using these types of programs, law schools can teach students the importance of professionalism to providing competent representation. Additionally, the more effort, time, and resources law schools are willing to spend toward teaching professionalism, the more students may perceive professionalism as a critical legal skill rather than a mere best practice. In the words of the ABA Standing Committee on Professionalism, “[T]he process of professionalism training in law schools should not consist merely of a course or two, as good as they might be, but rather should consist of a continual and comprehensive educational and supportive focus.”95
It is too soon to tell if such efforts in law schools will create a new breed of lawyers who put professionalism ahead of prejudice. Nevertheless, the lessons we learn from Charles Hamilton Houston and his role in the history of civil rights can provide promise and hope toward the continued use of law schools as forerunners to larger social movements. Perhaps the Charles Hamilton Houstons of today can continue to work toward instilling the message that justice cannot be blind if the legal profession is comprised of individuals whose racism precludes them from providing competent legal representation.
Part V: Enforcement
Even if we agree that the use of racist speech while in the context of legal representation is indicative of incompetence, we are still tasked with finding a way to make these lawyers become competent. As discussed in the previous section, changing the culture among today’s law students may be the most effective way to eliminate racism-based incompetence. But what if changing today’s professional culture fails to reach yesterday’s lawyers?
Historically, sanctions are the primary mechanism used for dealing with violations of professional ethics. The most typical sanctions are private reprimands,96 public reprimands,97 temporary suspension98 from the practice of law, and permanent disbarment.99 Discipline of professional ethics violations, however, depends on the availability of evidence of the alleged misconduct. When racist speech is used in court documents, as in the Sonksen100 and MacDraw101 cases, or when it is spoken in the presence of opposing counsel, as in the Martocci102 and Sharpe103 cases, there is some amount of evidence upon which a disciplinary committee can rest its decision.
Enforcement becomes problematic, however, when the racism-motivated misconduct manifests itself in the form of inaction. The lawyer from the second hypothetical in Part III failed to provide competent representation to her client because her racist views towards Blacks prevented her from properly presenting the highest bid to her White client. In this case, neither the White client nor the Black businessman may ever find out that the Black businessman presented the highest bid. If the lawyer keeps her reasons to herself, there is no proof of misconduct. Without proof, corrective action becomes impossible. Admittedly, lack of proof is a problem for the enforcement of many professional ethics violations, not just those violations motivated by racism. We are thus constrained to grapple with how to enforce the Model Rules in those cases where sufficient proof of racism-based incompetence does, in fact, exist.
Even when such proof exists, however, practical problems for enforcement remain. Assume, for example, that the lawyer in the second hypothetical actually revealed her misconduct in an email to her colleague (“can you believe that uppity Black man expected me to believe he could afford to pay $2 million dollars for the Smith property?”). With such evidence, both client-focused compensatory action (such as a malpractice claim) and more global deterrence-focused actions aimed at maintaining the integrity of the legal profession (such as reprimand, suspension, or disbarment) can be imposed. Discipline is now an option. Yet we are still left with some problems: Is there a remedy for the client or businessman whose bid was never presented to the lawyer’s client? Does the remedy change if the transaction has already been completed?
With regard to the deterrence-focused actions mentioned above, the purposes of sanctions include both specific deterrence104 and general deterrence.105 Sanctioning an offending lawyer will likely be an effective means of informing and reminding the bar of the importance of not letting racism manifest itself into racist speech or conduct during the course of legal representation. Unfortunately, the typical sanctions of reprimand or temporary suspension, on their own, are nonetheless unlikely to achieve specific deterrence in the offending lawyer or help to improve the lawyer’s ability to provide competent representation to her clients.
Court-ordered or employer-mandated diversity training coupled with traditional discipline may have limited success. However, when a lawyer is recalcitrant in her racist beliefs, diversity education may serve as nothing more than politically correct lip service and an ineffective token effort to change the most impervious of offending lawyers. If anything, such discipline and education may just make the lawyer more diligent in hiding her true reasons for her action or inaction in the future.
Unlike a lawyer who intentionally harbors racist views, lawyers who unconsciously hold racial prejudices are more likely to improve. Indeed, in all areas of legal practice, self-awareness is critical to improvement. Diversity training courses may help lawyers become more aware of their biases and more sensitive to the perspectives of people who are of different racial backgrounds. Such courses could, among other goals, focus on breaking down racial stereotypes and identifying seemingly innocuous behaviors that could be interpreted as racist.
To be sure, lawyers are just as prone to hold both conscious and unconscious biases as are members of other professions. However, lawyers who consciously harbor racial animus or unconsciously engage in disparate treatment of individuals of a specific race are in danger of failing to provide competent representation to their clients, even when both they and their clients are of the same race. It is in these situations where racism can insidiously affect a lawyer’s ability to provide competent legal representation without redress.
- This article does not discuss professionalism in its broadest sense. For the purposes of this article, professionalism is presumed to include the minimum requirements of each state’s code of ethics to which lawyers promise to adhere upon admission to the bar of each state.
- While of equal importance to eliminating racial prejudice in the legal profession, sexist speech and judicial misconduct are beyond the scope of this article.
- This article is primarily positivistic in that it argues that racist speech and conduct are indicia of incompetence. Normative questions about First Amendment freedoms, while worthy of debate, are simply beyond the scope of this article. Lawyers who discuss the moral arguments surrounding the imposition of sanctions for the use of racist speech most commonly cite the First Amendment rights to freedom of speech and freedom of association. See W. Bradley Wendel, Free Speech for Lawyers, 28 Hastings Const. L.Q. 305 (2001); Gabriel J. Chin, Do You Really Want a Lawyer Who Doesn’t Want You?, 20 W. New Eng. L. Rev. 9 (1998); Chris K. Iijima, When Fiction Intrudes Upon Reality: A Brief Reply to Professor Chin, 20 W. New Eng. L. Rev. 73 (1998); Jason O. Billy, Confronting Racists at the Bar: Matthew Hale, Moral Character, and Regulating the Marketplace of Ideas, 22 Harv. BlackLetter L.J. 25 (2006). The United States Supreme Court has even recognized the ability for a state to regulate otherwise permissible speech and associational conduct by virtue of the fact that the speaker/actor was a lawyer and held to a higher standard of behavior. Cf. In re Primus, 436 U.S. 412, 439 (1978) (“The State is free to fashion reasonable restrictions with respect to the time, place, and manner of solicitation by members of its Bar.”).
- Slur, n.3, OEDOnline (Mar. 2018), http://www.oed.com/view/Entry/182320 (last visited Apr. 14, 2018) (1.a.: “A deliberate slight; an expression or suggestion of disparagement or reproof.”). See, e.g., Nebraska v. Janousek, 674 N.W.2d 464, 468 (Neb. 2004).
- Epithet, n., OEDOnline (Mar. 2018), http://www.oed.com/view/Entry/63605 (last visited Apr. 14, 2018) (“An offensive or derogatory expression used of a person; an abusive term; a profanity.”). See, e.g., People v. Sharpe, 781 P.2d 659, 660 (Colo. 1989).
- Innuendo, n., OEDOnline (Mar. 2018), http://www.oed.com/view/Entry/96323 (last visited Apr. 14, 2018) (3.: “An oblique hint, indirect suggestion; an allusive remark concerning a person or thing, esp. one of a depreciatory kind.”). See, e.g., In the Matter of Thomas C. Monaghan, 295 A.D.2d 38, 39 (N.Y. App. Div. 2002).
- The ABA Model Rules of Professional Conduct recognizes that once a client-lawyer relationship has been created, the lawyer owes certain duties to the client even after the representation has concluded. See Model Code of Prof’l Conduct R. 1.9 (1983).
- There are just a handful of cases that explicitly state the lawyers’ offenses. It is unclear whether this is due to a lack of offensive conduct or a lack of diligence in pursuing justice for these violations. Nonetheless, the individual cases themselves and the issues they raise deserve attention as the legal profession continues to pride itself on self-regulation. See Model Code of Prof’l Conduct Preamble (1983).
- I have limited my analysis to case examples during or after 1983, the year in which the ABA Model Rules of Professional Conduct were adopted. Since the ABA’s adoption of the Model Rules of Professional Conduct, fifty-two States and Territories have adopted the ABA Model Rules of Professional Conduct as their own code of ethics. For purposes of uniformity in discussion, I have framed the issues in the language of the ABA Model Rules of Professional Conduct.
- ABA Model Rule 8.4(d) states, “It is professional misconduct for a lawyer to: …(d) engage in conduct that is prejudicial to the administration of justice.” Comment  to Model Rule 8.4, though not binding, provides further guidance: “A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice . . . .” Model Code of Prof’l Conduct R. 8.4 cmt. (1983).
- In re Application of Roger I. Roots, 762 A.2d 1161 (R.I. 2000) (Though denied bar admission for other reasons, the case of Roger Roots also presented a state bar admission committee with an applicant who regularly used racist speech); Hale v. Committee on Character & Fitness for Illinois, 2002 U.S. Dist. LEXIS 4262 (N.D. Ill., Mar. 12, 2002), aff’d. Hale v. Committee on Character and Fitness for the State of Illinois, 335 F.3d 678 (7th Cir. 2003).
- Hale v. Committee on Character & Fitness for Illinois, 2002 U.S. Dist. LEXIS 4262 (N.D. Ill., Mar. 12, 2002), aff’d. Hale v. Committee on Character and Fitness for the State of Illinois, 335 F.3d 678 (7th Cir. 2003).
- Hale v. Committee on Character and Fitness for the State of Illinois, 335 F.3d 678, 681 (7th Cir. 2003).
- The relevant text of the hearing panel’s decision is as follows: “Hale’s outspoken intent to continue discriminating in his private life, especially taken together with negative character evidence such as academic probation, an order of protection, and a list of arrests (not convictions), was inconsistent with the Rules of Professional Conduct. The Hearing Panel was also concerned about Hale’s refusal to repudiate a 1995 letter he wrote in response to published commentary in support of affirmative action, in which Hale referred to the female author’s ‘rape at the hands of a nigger beast.’ The letter, the Hearing Panel found, was insulting, inappropriate, and showed a ‘monumental lack of sound judgment that would put Hale on a collision course with the Rules of Professional Conduct.’ Finally, the Hearing Panel concluded that Hale was not candid and open with it during the hearing.” Id.
- See TE-TA-MA Truth Foundation-Family of URI, Inc. v. World Church of the Creator, 297 F.3d 662 (7th Cir. 2002).
- See id.
- See United States v. Hale, 448 F.3d 971, 981 (7th Cir. 2006).
- See United States v. Hale, 448 F.3d 971 (7th Cir. 2006).
- Disciplinary Counsel v. Frost, 909 N.E.2d 1271, 1278 (Ohio 2009) (“False statements impugning the integrity of members of the judiciary and judicial system [by accusing them of racism] erode public confidence” (citing Disciplinary Counsel v. Gardner, 99 Ohio St. 3d 416, 2003-Ohio-4048, 793 N.E.2d 425, at ¶ 30)).
- See, e.g., Office of Disciplinary Counsel v. Jackson, 84 Ohio St. 3d 386 (Ohio 1999) (the court disciplined an attorney who shouted racial epithets at opposing counsel, but the court did not include his specific language in its opinion.).
- In re Charges of Unprofessional Conduct Contained in Panel File 98-26, 597 N.W.2d 563 (Minn. 1999).
- See id. at 566.
- See id. at 569.
- See id. at 566.
- See id. at 566.
- See id. at 566-67.
- Interestingly, however, the appeals court chose not to enforce the tougher penalty of public censure since lawyer discipline is not intended to punish, but rather to deter, and since the lawyer had already learned her lesson. Panel File 98-26, 597 N.W.2d at 568-69.
- See Sonksen v. Legal Services Corporation, 389 N.W.2d 386 (Iowa Ct. App. 1986).
- Id. at 389.
- MacDraw, Inc. v. Cit Group Equipment Financing, Inc., 138 F.2d 33 (2d Cir. 1998).
- Id. at 35-36.
- Id. at 36.
- The Honorable Denny Chin, Legal Ethics: Access to the Legal Profession for Minorities: Introductory Remarks, 2 J. Inst. Stud. Leg. Eth. 49, 54 (1999).
- See MacDraw, 138 F.2d at 37.
- See id. at 37.
- Id. at 38.
- See, e.g., Matter of Jordan Schiff, Docket No. HP 22/92 (N.Y. Feb. 2, 1993); see also StephenGillers, Regulationof Lawyers: Problems and Ethics 792-95 (New York: Aspen Publishers, 8th ed. 2009).
- In re Petition for Disciplinary Action against James Malcolm Williams, 414 N.W.2d 394, 397 (Minn. 1987).
- In the Matter of Thomas C. Monaghan, 295 A.D.2d 38 (N.Y. App. Div. 2002).
- Id. at 39.
- Id. at 40.
- Id. at 40-41.
- Florida Bar v. Martocci, 791 So. 2d 1074, *2 (Fla. 2001).
- Id. at *2.
- Id. at *3.
- Id. at *10-11.
- Id. at *11.
- People v. Sharpe, 781 P.2d 659, 660 (Colo. 1989).
- Id. at 660.
- Id. at 660-61.
- Nebraska v. Janousek, 674 N.W.2d 464 (Neb. 2004).
- Id. at 468.
- See id. at 467-69.
- See id. at 472-73.
- See Model Code of Prof’l Conduct Preamble, para. 12 (1983) (“The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves”); id. at R. 8.3(a) (“A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority”); id. at R. 8.3 cmt. 1 (“Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct…”).
- See Carla D. Pratt, Should Klansmen be Lawyers?: Racism as an Ethical Barrier to the Legal Profession, 30 Fla. St. U. L. Rev. 857 (2003).
- Id. at 878.
- Id. at 877.
- See Hale v. Committee on Character & Fitness for Illinois, 2002 U.S. Dist. LEXIS 4262 (N.D. Ill., Mar. 12, 2002), aff’d. Hale v. Committee on Character and Fitness for the State of Illinois, 335 F.3d 678 (7th Cir. 2003).
- Pratt, supra note 58, at 878.
- Gabriel J. Chin, Do You Really Want a Lawyer Who Doesn’t Want You?, 20 W. New Eng. L. Rev. 9 (1998).
- Id. at 16-17.
- See Chris K. Iijima, When Fiction Intrudes Upon Reality: A Brief Reply to Professor Chin, 20 W. New Eng. L. Rev. 73 (1998).
- See id. at 75.
- See Billy, supra note 3; Pratt, supra note 58.
- See Chin, supra note 63, at 16-17.
- See Iijima, supra note 65, at 77-78.
- These hypothetical scenarios are cast in terms of White vs. Black for purposes of simplicity, but the permutations of racism are endless.
- Professor Patrick Johnston of Delaware Law School of Widener University deserves many thanks for this particularly helpful hypothetical.
- Model Code of Prof’l Conduct R. 1.1 (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”).
- Id. at R. 1.1 cmt. 5 (“Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem.”).
- Id. at R. 1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”).
- Id. at R. 1.3 cmt. 1 (“A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf . . . .”).
- Id. at R. 1.4(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”).
- Id. at R. 1.7(a)(2) (“(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer . . . .”).
- Id. at R. 1.16(a)(2) (“a lawyer shall not represent a client . . . if: . . . (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”).
- Id. at R. 2.1 (“In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”).
- See Genna Rae McNeil, Groundwork: Charles HamiltonHoustonand the Struggle for Civil Rights 76-85 (1983).
- Id. at 85.
- See DVD: The Road to Brown (California Newsreel 1990).
- See id.
- McNeil, supra note 82, at 200-01.
- Alexander Blewett IIISchool of Law University of Montana, Student Handbook: Academic Year 2018-2019 Appendix G (2018), available at https://www. umt.edu/law/academics/students/handbook/default.php.
- Delaware Law School of Widener University, 2014-2015 Student Handbook e (2010), available at https://delawarelaw.widener.edu/files/resources/201415studenthandbook. pdf.
- University of Dayton School of Law , School of Law: Oath of Professionalism, University of Dayton, https://www.udayton.edu/law/students/professionalism_oath. php (last visited Nov. 6, 2018).
- Sample Law School Pledge of Professionalism, 2Civility, https://www.2civility.org/ wp-content/uploads/Sample-Pledge-of-Professionalism.pdf
- Compare Civility, n. OEDOnline ( Mar. 2 018), h ttp://www.oed.com/view/ Entry/33581?p= emailAWT7KnBgiXulQ&d=33581 (last visited Apr. 17, 2018) (“Behaviour or speech appropriate to civil interactions; politeness, courtesy, consideration”) with Racism, n. OEDOnline (Mar. 2018), http://www.oed.com/view/ Entry/157097?p=emailAW0hEebCj.d5U&d=157097 (last visited Apr. 17, 2018) (“The belief that all members of each race possess characteristics, abilities, or qualities specific to that race, especially so as to distinguish it as inferior or superior to another race or races. Hence: prejudice and antagonism towards people of other races, esp. those felt to be a threat to one’s cultural or racial integrity or economic well-being; the expression of such prejudice in words or actions.”).
- StandingCommittee onProfessionalism of the AmericanBar Association, Report ona Survey of Law School Professionalism Programs iv-v (2006), available at https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/reports_migrated/LawSchool_ProfSurvey.authcheckdam.pdf.
- Id. at iii.
- A reprimand is “a mild form of disciplinary action – imposed after trial or formal charges – that declares the lawyer’s conduct improper but does not restrict his or her right to practice law.” Black’s Law Dictionary 614-15 (3d pocket ed. 2006); see also Private Reprimand, Black’s Law Dictionary 615 (3d pocket ed. 2006) (defined as “[a]n unpublished communication between a disciplinary agency and a wrongdoing attorney, admonishing the attorney about the improper conduct.”).
- A public reprimand is a “published notice, appearing usually in a legal newspaper or bar journal, admonishing the attorney about improper conduct and describing the impropriety for the benefit of other members of the legal profession.” Black’s Law Dictionary 615 (3d pocket ed. 2006).
- A suspension is a “temporary deprivation of a person’s powers or privileges, esp. of office or profession <suspension of her bar license>.” Black’s Law Dictionary 696 (3d pocket ed. 2006).
- Disbarment is the “action of expelling a lawyer from the bar or from the practice of law, usually [b]ecause of some disciplinary violation.” Black’s Law Dictionary 211 (3d pocket ed. 2006).
- Sonksen v. Legal Services Corporation, 389 N.W.2d 386 (Iowa Ct. App. 1986).
- MacDraw, Inc. v. Cit Group Equipment Financing, Inc., 138 F.2d 33 (2d Cir. 1998).
- Florida Bar v. Martocci, 791 So. 2d 1074 (Fla. 2001).
- People v. Sharpe, 781 P.2d 659 (Colo. 1989).
- Specific deterrence is the theory of punishment used to deter the actual offender from reoffending. Black’s Law Dictionary 206 (3d pocket ed. 2006).
- General deterrence is the theory of punishment used to deter the broader population to which the actual offender belongs from committing the same offense that the actual offender committed. Black’s Law Dictionary 206 (3d pocket ed. 2006).