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An evolving rule on non-discrimination

Diane Karpman


As a card-carrying member of a group that is often vilified, ridiculed, stereotyped and misrepresented in the media, I am personally outraged by discriminatory conduct. Rule of Professional Conduct 2-400 prohibits discriminatory conduct in a law practice, and that gives me pride.

This rule prohibits discrimination based on sex, age, race, or disability. However, the rule neglects to include discrimination on the basis of financial ability. Every lawyer I know has clients who may become "pro bono." It's just that often we do not know when that will occur.

Jim Brosnahan, who recently de-fended John Walker Lindh, gave me a historical perspective regarding the evolution of the rule. In the late '60s, the State Bar's Conference of Delegates consciously began to realize that we would be stronger as a diversified bar, and that the inclusion of women, the young, the old and all races and religious persuasions would lead to vitality in the profession. The conference passed resolutions to this effect in 1989 and 1991, which eventually led to the current rule, which even forbids discrimination in the acceptance or rejection of clients.

Serious issues are raised concerning competent performance (Rule 3-110), since it may be difficult to be truly loyal and exercise independent judgment when representing those espousing vile ideologies. Yet Matthew Hale, an avowed Nazi, was represent- ed by an African-American and a Jew.

Life is not a bed of roses, and no one has ever suggested that I resemble Pollyanna. Progress is being made, maybe not enough, but there has been change. The rule forbids a lawyer from "knowingly permitting" unlawful discrimination, and requires that a lawyer "advocate corrective action" if knowledge of discriminatory policies or practices exists. Dis-criminatory practices exist today, such as family law practitioners who advertise as only representing women or men. Many law firms have glass ceilings, yet I am unaware of any protestors carrying placards on Wil-shire Boulevard, advocating corrective action. However, lawyers are working from the inside, actually effecting corrective action by assuming roles in management or on compensation committees, or by urging pro bono commitments for their firms.

The reconciliation of some overarching ethical concepts with the rule still remains impossible. For example, California empowers clients and fosters great client autonomy. We allow our clients to make decisions and choices regarding their legal objectives. Yet the most important choice a client makes is selecting a lawyer. What about a client who wants to be represented by a lawyer who shares her ideology, even if it is reprehensible? A client who espouses vile, despicable ideologies and maintains that it is an exercise of free speech could be denied the ability to hire a lawyer who shares his or her beliefs. Therefore, the prohibition of discrimination is a core value of California lawyers, which even trumps client autonomy.

As LaDoris Cordell, Stanford vice provost and a former member of the bench, said at the State Bar's recent Annual Meeting in Monterey, "the bar looks like the litigants of Calif-ornia." Although lawyers are challenged by change, these changes are welcomed.

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