The Interplay Between Rules of Ethics and Implicit Gender Bias in Communications Between and Among the Bench and Bar

Introduction

Implicit gender bias in the legal profession is now a well-documented problem. Identifying 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 the litigation. In 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 happy meal.” 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 so upset.” An ABA study published in 2018 reported that over half of women attorneys have been mistaken for administrative staff or janitors. 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 construction.”

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 continuous “mansplaining,” referred to by men as “honey” or “dear,” or are misgendered. These occurrences often fly under the radar, despite the troubling psychological and professional toll implicit biases inflict upon women. As awareness for this issue seemingly rises, an important question lingers: do women have recourse to combat implicit biases?

The Rules

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 public officials.” “Respect” implies the absence of bias. Further, Model Rule 3.5(d) bars any conduct “intended to disrupt a tribunal.” 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 protected classes.

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 official capacity.” It further mandates that judges “require similar conduct by those subject to the judge’s control, including lawyers . . . .” 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 (emphasis added). It also tasks judges with requiring that lawyers refrain from doing the same.

Do These Rules Apply to Implicit Bias?

In a perfect world, these rules and other similar ones provide recourse to women who have been mistreated on the basis of gender. But how do ethics rules come into play in situations of implicit rather than explicit bias?

Model Rule 8.4(g) provides strong support for women seeking to remedy implicit mistreatment. It is strikingly apparent that the rule was written to apply to bias at large—on paper, this includes implicit bias. The comments for the rule illustrate that the term “discrimination” includes “verbal or physical conduct that manifests bias or prejudice towards others.” The language of the rule is admittedly broad; that breadth is arguably necessary to encompass unconsciously biased conduct. But the rule’s broad formulation has kept multiple states from adopting it. Those opposing the rule largely state First Amendment concerns. The ABA, however, argues that tension between freedom of speech and anti-discrimination laws “is not a new problem,” and Rule 8.4(g) should not fall victim to this tension. Specifically, the ABA contends that Rule 8.4(g) promotes a “well-established state interest” and is no more problematic than other workplace speech restrictions that have been upheld by courts.

Additionally, Rule 8.4(g) and its state-equivalents are not iron-clad armor for women affected by gender bias. For example, in California—a state that integrated the broad language of Rule 8.4(g)—misconduct was not found when an attorney referred to a female judge as “succubustic.” That being said, Rule 8.4(g)’s broad language looks to be a powerful, if not the only, tool against curbing implicit gender bias. It is merely a matter of how many states will adopt the rule, whether those states will adjust the rule, and how stringently the rule will be applied.

Other rules, such as judicial canons, certainly can provide relief to women in more obvious and explicit situations. In 2011, for example, a judge was found to have violated Canons 1 and 2A of the Code of Judicial Conduct when he continuously invaded the personal life of a female court employee by kissing her on the cheek, guilting her into lunch by clearing his docket for her, calling her constantly, trying continuously to spend time with her son, and sending her constant emails if he did not see her first thing in the morning. Further, in New York, an attorney was disciplined for referring to his client as a “bitch.” These instances and other similar ones, however, are examples of explicit mistreatment. It is less clear how such rules would translate to “mansplaining,” or men speaking to women with language that is subtly, but not explicitly, demeaning.

Conclusion

Gender bias in the legal profession is enormously prevalent and problematic. Instances such as women being spoken to degradingly, left out of important conversations, and interrupted in meetings are all recurring themes throughout the legal profession. Additionally, these transgressions are not easily actionable—while explicit gender biases are sanctionable, implicit biases do not have such a clear path to remedies. However, there is hope that Rule 8.4(g) will become more widely accepted and stringently applied to help combat an environment in which gender oppression perpetually lingers—an environment that, as studies continue to show, women in the legal profession face every day.