One way to remedy a nondiverse legal industry is to stamp out discriminatory behavior. To that end, a number of groups in the legal world have taken proactive steps to address this problem.
The ABA’s House of Delegates not long ago amended the ABA’s Model Rules of Professional Conduct to include Model Rule 8.4(g), which provides that it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” This addition to the ABA’s Model Rules was (and continues to be) the subject of much debate.
Beyond measures aimed at stamping out behavior that reduces diversity, the profession benefits from measures actively welcoming greater diversity and inclusion. For example, the ABA and various state bar associations have important diversity initiatives and working groups that aim to enhance diversity, including the ABA’s Center for Diversity and Inclusion.
One group in the legal world, however, has a heightened platform to help create a more diverse profession: judges.
Judicial Efforts to Increase Diversity
It should go without saying that no judge should hinder diversity through discriminatory behavior. Rule 2.3 of the American Bar Association’s (ABA) Model Code of Judicial Conduct memorializes this bare minimum for judicial decency. But perhaps because of widespread diversity problems in the legal profession, some judges go far beyond this required minimum and use their singular position to open doors for junior and more diverse attorneys. These judges showcase that legal professionalism includes adopting measures that promote diversity in the profession.
Policing Counsel Diversity
Judges ordinarily have little say in counsel of record for a given case, but where courts have some input, a few jurists have used that as an opportunity to promote a more diverse bar.
Recently, for example, Judge James Donato of the U.S. District Court for the Northern District of California rejected a motion [login required] for appointment of an all-male interim class counsel. Although Donato “[had] no doubt that [the proposed group] would provide highly professional and sophisticated representation,” the court was “concerned about a lack of diversity.”
Donato’s order was by no means the first of its kind. The late Judge Harold Baer Jr. ordered plaintiffs to diversify class action leadership on no less than four occasions. In one such case, an objector challenged Baer’s order as racially discriminatory. That challenge made its way to the U.S. Supreme Court, which declined to grant review. Justice Alito, however, wrote separately respecting the denial of the petition for writ of certiorari to state that he was “hard-pressed to see any ground on which Baer’s practice can be defended.” Despite Alito’s admonishment, district court judges have followed Baer’s practice with some regularity. See City of Providence v. Abbvie Inc., No. 1:20-cv-05538-LJL, 2020 WL 6049139, at *6 (S.D.N.Y. Oct. 13, 2020) (citing additional cases).
Providing Litigation Benefits
If the policing of class counsel is judges’ proverbial stick to promote diversity, judges have a few carrots as well.
For example, after the Federal Circuit last year vacated oral argument for a matter, counsel for one of the parties filed a motion seeking reinstatement of the hearing on the ground that the party intended to allow a junior, female associate to present her first appellate argument. The motion stressed that oral argument was important to “provide opportunities to promising junior and diverse lawyers.” The Federal Circuit promptly agreed to reinstate oral argument. Although the court provided no reasons for its decision to reinstate the hearing, the only possible explanation is the one advanced by the movant: to promote diversity in the legal profession.
Unlike the Federal Circuit, some district court judges are more open about their wishes to see more diverse litigants in their courtrooms. In the U.S. District Court for the Northern District of California, for example, at least six judges urge litigants in civil matters to give junior or more diverse lawyers added responsibilities. Judge Susan Illston’s standing order provides that, as she considers whether to hold oral argument on a matter, she will “take [] into account” whether the attorney to argue the case is a junior attorney or member of a group “that [has] been historically underrepresented in the legal profession.” Judge Charles R. Breyer’s standing order notes that he is “amenable to permitting a number of lawyers to argue for one party if this creates an opportunity for a junior lawyer or lawyers from underrepresented groups to participate.” Judge Haywood S. Gilliam, Jr.’s standing order informs litigants that even if the court takes a matter under submission and vacates oral argument, the court “will consider rescheduling the hearing” if a party promptly informs the court that oral argument “will be conducted by a lawyer who has been licensed to practice law for five or fewer years.”
As a final example, Judge William Alsup’s standing order takes a more assertive approach. Rather than invite litigants to diversify the bar, Alsup requires it. When parties file a joint statement in advance of an initial case management conference in Alsup’s chambers, “any law firm with more than fifty lawyers nationwide must submit a specific plan for how it intends, in [that] case, to provide opportunities to junior lawyers (six years or fewer years out of law school) to argue motions in court, to take depositions, and to examine witnesses at trial.” And Alsup will not accept generalized assurances: “Specific motions, depositions, and junior lawyers must be identified.” Perhaps recognizing the potential pushback from clients, Alsup’s standing order adds, “Please state whether it would be useful to require client representatives to attend the upcoming case management conference where this subject will be discussed.”
Other than Alsup’s standing order, these examples represent optional paths for litigants. And it is unknown how often litigants take the carrots offered to them. But why wouldn’t they? In terms of firms denying junior litigants opportunities to argue in court under the guise that clients can’t stomach it, one would imagine that those same clients would rather have someone argue on their behalf than no one.
Engaging in Diverse Hiring Practices
Another way that some judges help make the legal profession more diverse is by hiring more diverse clerkship candidates. Law clerk diversity is a “complicated” subject. Why law clerks as a group tend not to be as diverse as law schools—which have their own diversity struggles—is open for debate. Not debatable, however, is that every clerkship and judicial externship opens doors, and only judges decide for whom those doors open. Of course, few judges make public their idiosyncratic hiring practices. But what follows are a handful of structural changes, related to how judges fill their chambers, that judges employ (with varying degrees of support) to improve diversity in the legal profession at large.
One broad structural change that benefits diversity is adherence to what is known as the Federal Law Clerk Hiring Plan. The plan is a coordinated effort to create uniform hiring practices and timelines. The plan has come and gone several times now, with judge buy-in a consistent problem. For judges who adhere to the current version of the plan, though, they commit not to seek or accept clerkship applications until candidates have completed their second year of law school. Although the hiring plan’s principal aim appears to be chaos minimization, adherence to the plan incidentally increases diversity (whether or not judges participate with the intent to boost diversity). A higher percentage of diverse law students are first-generation professionals, a group less likely to be familiar with the law clerk hiring process and thus less likely to apply early in a world where the plan doesn’t exist. So whereas the law student who comes from a family of lawyers enters law school prepared to apply for clerkships after one semester, if necessary, the daughter of a restaurant worker is likely thinking at that same point: “I’m still trying to figure out the difference between litigation and corporate work. What’s a clerkship?” Similarly, that first-generation law student might disproportionately struggle her first year of law school. By deferring the clerkship-application process until after students’ second year, the restaurant worker’s daughter has the opportunity to improve in her second year and demonstrate that she would be a successful law clerk.
Judge Vince Chhabria of the Northern District of California created his own structural change to clerkship hiring for the sake of diversity. Chhabria has adopted a version of the NFL’s “Rooney Rule” (similar as well to the Mansfield Rule adopted by several law firms), which requires NFL teams to interview at least one minority candidate before filling a senior football operations vacancy. Under his quasi-Rooney Rule, Chhabria has publicly committed not to hire any law clerks for a given term until he has interviewed “at least one minority candidate and at least one candidate from a non-‘T-14’ law school (since those schools tend to have more students from less-privileged backgrounds).”
Finally, some judges may choose to work with other organizations, like the American Bar Association, which created the Judicial Intern Opportunity Program, or the Mexican American Bar Association, which has a similar program “for a selected group of Latino/a law students.” Both programs help place in judicial externships those law students who are members of traditionally underrepresented groups in the legal profession. Judicial participation in such programs—as is true for all other diversity efforts—varies.
Takeaways
Progress in legal diversity has moved at what some have described as a “glacial pace.” Fortunately, opportunities exist for judges to speed up that progress and boost diversity, both in chambers and at the podium. And to the extent that law firms are not taking advantage of the litigation incentives some judges offer for diversity efforts, those firms do so at the expense of both attorney development and their clients.
Richard Johnson is a litigation associate in the San Francisco, California, office of Munger, Tolles & Olson.
