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Reverse Discrimination at Law Firms

A recent article by Ross Todd in The American Lawyer examines the provocative question: Are Law Firms' Diversity Efforts Discriminatory? The article reports on a recent research paper released by Curt Levey, who argues that actions by corporate law departments to pressure outside counsel to hire minorities may violate anti-discrimination laws. In the article, Levey cautions law firms that seek to accomodate clients:

"Whether you are using racial preferences because your clients want you to or [because] you want to, you almost certainly are risking liability," Levey said...."Not only may a law firm be liable for discrimination, but so may be the individual employees and partners at the law firm that participated in the discriminatory decisions," writes Levey in his paper titled "The Legal Implications of Complying with Race- and Gender-based Client Preferences."

Levey's suggestion that law firms may face liability for reverse discrimination has triggered discussion among legal bloggers. At Blog of the Legal Times, Richard Roberts asks:

If the legal restrictions against firms complying with demands of Wal-Mart and other clients for a certain racial make-up are as clear as argued, when are the lawsuits going to start? During my years as an employment litigator, I saw employees eager to bring Title VII claims, yet thus far law-firm associates are not suing. How long is this relatively placid situation going to last?

In response, Paul Secunda of Workplace Blog offers this advice:

My comment is that I'm not sure how clear the legal restrictions are in light of voluntary affirmative actions cases like Weber and Johnson, which both provide for the permissibility of such race and gender AA plans under certain conditions.  It is not clear whether those conditions can be met in the law firm context, but I think there is at least a reasonable argument.  Of course, this argument is only in play if law firms are willing to admit that they are engaging in such voluntary affirmative action programs.  If not, and race and gender considerations are the motivating factor behind law firm hiring decisions on an ad hoc and irregular basis, the only thing keeping reverse discrimination suits being brought by whites and men may be the potential backlash such associates would face from other law firms as perceived troublemakers.  Of course, it might also be hard to isolate race or gender as the determinative or motivating factor leading to the hiring of a given minority or female candidate in a specific instance and it would seem that both pattern and practice and disparate impact claims are not ideally suited for situations where males and whites still make up the majority of law firm employees.

Finally, as expected, there's a lively discussion here at the WSJ Law Blog. What surprises me in this discussion is that there's no mention of the client's unfettered right to an attorney of his or her choosing, which frequently trumps other considerations. For example, just last term, the U.S. Supreme Court held that a defendant's constitutional right to effective assistance of counsel under the Sixth Amendment is so sacrosanct that violation of the right is grounds for overturning a conviction, even in the absence of showing of actual prejudice. Likewise, in the civil arena, lawyers are exempt from noncompete clauses because these would interfere with a client's right to choose an attorney. Thus, when a lawyer departs a firm, under most ethics codes such as this one, the firm must inform the client that he or she has the right to follow the departing lawyer.

As described in this earlier earlier post, law firms are hiring more minority candidates, even if they are purportedly less qualified (based on the narrow criteria of grades) to satisfy their clients. What if a corporate client charged with criminal SEC violations wants a firm with minority attorneys? What if a corporate client wants to hire an African-American attorney to defend it against charges of racial discrimination? Don't clients have that right -- or does federal discrimination law prevail? That's the question that needs to be addressed here.

Posted by Carolyn Elefant on March 16, 2007 at 05:33 PM | Permalink | Comments (0)