Legal Ethics

Did D.C. Bar Course Tell Attorneys It's Totally Cool To Discriminate If That's What The Client Wants?

Does ethics compel discrimination? No, probably not.

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Oof. Some newly admitted attorneys are seeing red after taking the D.C. Bar’s mandatory Professional Ethics course. A tipster reached out to us to describe an infuriating hypothetical at a recent session.

Here’s the scenario: The D.C. Bar regularly hires an instructor named Jack Marshall (ProEthics, Ltd) to teach its mandatory professional ethics course, a class required for all new D.C. attorneys. As part of this class, Jack presents a hypo in which a prospective client presses a young associate to guarantee that only male attorneys will work on his case. What should the associate do? Jack gives a little quiz to see what students think, then tells them that the preferred answer is to grant the client’s request to discriminate.

You can almost hear the needle scratch.

According to our tipster, this resulted in a lot of discussion in the class — which is probably exactly what the hypothetical was designed to do. But unfortunately for those that attended, being told their discrimination was something that should be accommodated based on a client’s whim, well, that struck folks as all too familiar:

Specifically, one of the students told Jack “I can’t believe what I’m hearing, this is like watching the Kavanaugh hearings all over again.” But Jack stuck by his guns: clients have a right to choose their counsel, everyone deserves a lawyer, and this was no different than representing other unsavory clients (e.g. Ted Bundy).

There is an interesting discussion to be had — particularly in light of some clients’ requirement (such as Microsoft) that their outside counsel staff their cases with an eye towards diversity — regarding the role that clients play in perpetuating or combatting discrimination. But that wasn’t the takeaway from attendees. Indeed, as the tipster notes it was their distinct impression that they were being instructed that, in this scenario, ethics compels discrimination:

Had Jack said “the Rules of Professional Conduct are silent, make your own call” I would have shrugged and let it go. But his idea that “ethics” compels you to discriminate and other approaches can be taken only for “business” considerations really burns me.

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Folks that complained about the class to the D.C. Bar received a response that indicates “Mr. Marshall did not adequately communicate the limitations that exist to this client-centric posture” and included analysis that a “lawyer’s decision to staff a client’s matter based on a knowingly intentional discriminatory purpose could violate D.C. Rule 9.1.” Which is very different than the takeaway those in attendance were left with. Additionally, students were advised, “[o]n the recommendation of the D.C. Bar legal ethics team, Mr. Marshall will revise his presentation.”

The full response, which was provided by the D.C. Bar to Above the Law, is below:

Thank you for your feedback of the October 16th Mandatory Course. Your comments are important to us, and I apologize if your experience with Mr. Marshall at the Course was unsatisfactory.

Mr. Marshall’s hypothetical was developed to engage the audience to think about difficult ethical considerations. Mr. Marshall communicated the District’s historically strong client-centric posture when weighing competing ethical values under the D.C. Rules, a posture that is well supported in the legislative history, legal ethics opinions, and disciplinary decisions of the District of Columbia. However, Mr. Marshall did not adequately communicate the limitations that exist to this client-centric posture, such as the possibility that a lawyer’s decision to staff a client’s matter based on a knowingly intentional discriminatory purpose could violate D.C. Rule 9.1.

As a result of your concerns, I consulted with Hope Todd, Assistant Director of Legal Ethics for the D.C. Bar, who wrote the following:

A significant challenge with D.C. Rule 9.1 is that although it has existed since 1991, there are no reported disciplinary decisions; therefore, jurisprudence in this area as a matter of lawyer regulation is wholly lacking. Another challenge is that the Rule by its terms applies only “in conditions of employment,” which is not defined in the rule and appears confined to developments under the substantive law per Comment [1]. Comment [1] explains in pertinent part that, “…[t]he rule, is not intended to create ethical obligations that exceed those imposed on a lawyer by applicable law. “

Notwithstanding the aforementioned issues, as legal ethics counsel, my guidance to D.C. practitioners would be that there is a very real possibility that a lawyer’s participation and acquiescence to a client’s wishes in staffing a legal matter based on intentional gender discrimination could be found by an employment commission or court to be a condition of employment and thus a per se violation of Rule 9.1. For this reason, I also think Rule 9.1 would supersede a client’s choice of counsel in the same way an unwaivable conflict of interest would supersede a client’s right to have a specific lawyer who has a conflict. However, reasonable minds may differ on this latter conclusion.

On the recommendation of the D.C. Bar legal ethics team, Mr. Marshall will revise his presentation and the explanation of D.C. Rule 9.1. Again, thank you for bringing your important concerns to our attention.

As you might imagine Jack Marshall’s take on what happened is very different. Here’s his response to Above the Law’s inquiry:

What you “understand” is incorrect, misleading and inaccurate, does not correctly describe either the hypothetical, or my framing of it, nor the analysis, nor the D.C. bar’s conversations with me, and mine with them.

There was no determination that my handling of the issue did not “properly” cover the issues involved, and as I have for 15 years, I did discuss rule 9.1, and how it has been applied. I also covered the new ABA Rule 8.4 g regarding discrimination, and said specifically that if D.C. had that rule, as written, a firm allowing a client to choose a lawyer he or she felt comfortable working with could trigger discipline.

The class had over 200 attendees. There were a couple of complaints. Complaints are not unusual, the evaluation of my section are regularly outstanding, and were for that particular class as well.

My discussions with the D.C. bar, my client, are confidential.

I have nothing else to say on the incident. I would, of course, be happy to discuss, or debate, the issue of a client’s right to choose his or her own legal representation, and a lawyer’s obligation to allow that client to do so, on my own behalf, as a legal ethics specialist and commentator, and as president of ProEthics, LTD.

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Regardless of Marshall’s posturing, it’s clear from the D.C. Bar’s response they don’t think he covered the sensitive material as thoroughly as they’d like. Hopefully in the future, students won’t be left with the impression that discrimination is the only ethical choice if that’s what the client wants.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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