Implicit gender bias in the legal profession is now a well-documentedIdentifying and combatting implicit bias, however, poses challenges. Implicit bias is, by definition, unconscious. But in communications between and among the bench and bar, messages are received by conscious—often exacting—listeners, who may pick up on biases not intended by the speaker.
Anecdotes abound. Some communications leave no room for doubt that a lawyer’s gender or sex is in the mind of the speaker: for example, in 2018, a female attorney filed for a continuance because the trial date conflicted with her due date. Her male opposing counsel heatedly argued against the continuance, contended that her request was “extreme,” and suggested that she got pregnant to delay theIn other cases, it may be less obvious to the speaker that he or she is communicating an unconscious bias. In 2007, now-Chief Bankruptcy Judge for the Southern District of Florida, Laurel M. Isicoff, was told by a male attorney that she was “a few French fries short of a In 2016, a male attorney filed a motion seeking to curb “emotional displays” from his female opposing counsel, claiming that she may cry in front of the jury in a “shrewedly calculated attempt to elicit a sympathetic response”; after a hearing on the motion, the male attorney told her: “I don’t understand why you’re getting An ABA study published in 2018 reported that over half of women attorneys have been mistaken for administrative staff In early 2022, Judge Sarah Zabel, who was presiding over a commercial construction bench trial in Miami, was told by the group of all-male litigators: “we’re going to have to teach you all about
Regardless of the speaker’s conscious intent, the trend is clear: women in the legal profession—judges and lawyers alike—are often not spoken to as equals by their male counterparts. Women are subjected to continuousreferred to by men as “honey” or are These occurrences often fly under the radar, despite the troubling psychological and professional toll implicit biases inflict As awareness for this issue seemingly rises, an important question lingers: do women have recourse to combat implicit biases?
On the surface, there appear to be multiple ethics avenues through which women can seek relief for gender-based mistreatment. At the outset, the preamble of the ABA Model Rules of Professional Conduct (“Model Rules”) states: “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and“Respect” implies the absence of bias. Further, Model Rule 3.5(d) bars any conduct “intended to disrupt a But examining the speaker’s intent can be thorny or insufficient to capture unconscious bias. The most helpful and on-point recourse is Model Rule 8.4(g), which labels it professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex” and other
Similarly, the Code of Conduct for United States Judges addresses gender bias from the perspective of the bench. Canon 3(A)(3), for example, demands that judges be “dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an officialIt further mandates that judges “require similar conduct by those subject to the judge’s control, including Meanwhile, the ABA’s Model Code of Judicial Conduct states that “[a] judge shall not . . . by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex” and other protected classes It also tasks judges with requiring that lawyers refrain from doing the