Racial, gender, cultural, sexual preference and other biases are facts of life in our society. Some biases are overt; but most in today’s world come in more subtle forms. They affect the practice of law every bit as much as they do other walks of life.
For example, for the past 30 or so years, almost half of law school populations have been women. Yet in the 2014 survey by the National Association of Women Lawyers charting the progress of women in “BigLaw,” 4 percent of managing partners in the 200 largest American law firms were women, and only 17 percent of the firm equity partners were women.
It’s true that women have children. But often women who do go back to their firms still end up having to explain why they are in the office on a Saturday when they have a new baby (no man would be asked to explain). If her husband is the child’s caretaker he is seen as less masculine by his peers; she will be viewed as too masculine. It is a no-win situation.
The road is even tougher for minority lawyers. In 2008 and 2009, when the recession hit law firms hard, the American Lawyer’s 2010 “diversity scorecard” revealed that the percentage of minority lawyers at BigLaw firms went down and minority lawyers were 1-1/2 times more likely to be laid off than white attorneys.
Harvard Professor David Wilkins, who has long examined and written about the experience of African-American lawyers in law firms, believes that some of the problem lies in the fact that black lawyers consistently report that they have difficulty finding mentors. Since connections are the currency of the market for new clients, this puts them at a disadvantage.
As Frederick H. Bates, a prominent black partner ruefully notes, “We don’t sit in the corporate boardrooms, and our mothers and fathers don’t sit in the corporate boardrooms. We’re not members of the $40,000-a-head country club and neither are our mothers and our fathers. We’re just not naturally networked—because of the history of our country, quite frankly—into the kinds of business opportunities or avenues that our white counterparts are networked into.”
What I find most distressing about it all is that at UC Berkeley Boalt Hall, a top-10 law school, I find no difference whatsoever in the intellectual abilities of men and women, or minority or white students, when I grade their exams anonymously (which I am required to do). Yet I am afraid that 10 years down the road, a survey would show that my former women and minority students have not fared as well as my white students in the workplace. I agree with Jacob Herring that the problem is not just with cultural assumptions we all make—no matter what our gender or race—but with digital and analog communication.
“In face-to-face interactions, 65 percent or more of what is communicated is analog communication, and it is ambiguous. While people may use digital communication to say things that are socially acceptable, their analog communication sends a different message.” Or “telling a female associate you are ‘finally learning to think like a man,’ or the sincere associate who mentions to his newfound colleague ‘I don’t even think of you as black anymore!’
Is bias an ethical issue? The answer to this question is increasingly “yes.” In the past 20 years, many states have passed disciplinary rules prohibiting discrimination by lawyers. In about 10 states, bias misconduct must be connected in the practice of law, and does not cover such issues as discrimination in employment.
Other jurisdictions like New York, the District of Columbia and California (Rule 2-400), have barred employment discrimination as well. Nevertheless, enforcement of Rule 2-400 is slight. That is because Rule 2-400 requires a civil adjudication that the lawyer’s conduct was wrong, a precondition that severely impacts the Rule’s impact.
The good news is that this battle is not lost. Times are changing, even if slowly, and our ethics rules are once again up for grabs since the Supreme Court soundly rejected the latest submission sent by the Rules Commission as not being reflective of the law. Perhaps the new Commission—to be appointed soon—will see their way to drafting a Rule with some real bite.
Carol M. Langford is a lecturer in law at UC Berkeley Boalt Hall School of law as well as a practicing lawyer in Walnut Creek specializing in attorney conduct and State Bar disciplinary and admissions matters. She was formerly a partner in the San Francisco law firm of Carroll, Burkick and McDonough.
 Report of the Eighth Annual NAWL National Survey on Retention and Promotion of Women in Law Firms, National Association of Women Lawyers, February 25, 2014.
 The American Lawyer, June 1, 2013.
 Why Are There So Few Black Partners in Corporate Law Firms: An Institutional Analysis, 84 California Law Review, 493 (1996).
Filed Under: Ethics Corner