Judicial ethics scholars say that three Illinois district court judges crossed the line by encouraging more opportunities for “newer, female, or minority” lawyers in standing orders that have been contested in an ethics complaint.
Other judges have taken a race-neutral approach that provides diverse groups of early career lawyers with avenues to develop their trial skills.
“Judges like myself approach the overall issue from the perspective of trying to give all young lawyers more of an opportunity, recognizing that it’ll hopefully give younger women and lawyers of color who often don’t make it into the higher ranks of the profession the experience they need,” said Judge Pamela Chen of the US District Court for the Eastern District of New York.
The ethics complaint filed by America First Legal, a conservative advocacy group, comes at a time when women and people of color are making historic strides in the associate ranks of law firms but are still underrepresented among partnerships.
Ethics Complaints
The orders by three judges in the Southern District of Illinois, each titled “Increasing Opportunities for Courtroom Advocacy” and attached to the complaint, state that once a motion is fully briefed and a party is requesting oral argument, the party may alert the court that it intends to have a “newer, female, or minority attorney” handle the argument.
If the court receives such a notification, the judge will approve the oral argument request “if it is at all practicable to do so,” and will “strongly consider” giving more time for oral argument, the orders say. The judge will also consider allowing more senior attorneys to assist the junior lawyers in their argument.
The complaint targets perceived race and sex discrimination for granting oral arguments based on a lawyer’s protected class.
The judges state in the orders that they issued them in response to a “growing trend in which fewer cases go to trial” and in recognition of “the importance of the development of future generations of practitioners.”
But as written, the orders infer “that special procedures are being instituted for lawyers of a particular gender and race irrespective of experience,” said Charles Geyh, an Indiana University Law School professor and legal ethics expert.
Richard Painter, a legal ethics professor at the University of Minnesota Law School, said judges are barred from making note of the race or sex of a lawyer in a proceeding when it isn’t relevant to the issues in the proceeding.
New Generations
Many judges have opted for policies that focus on nurturing all newer lawyers joining the profession. These orders nudge—but don’t force—law firms, their senior attorneys, and their clients to expand the roles junior lawyers play in cases.
Many of these policies note that fewer cases go to trial, that speaking opportunities for newer lawyers have shrunk as a result, and that the ultimate decision of who argues on behalf of a client rests with lead counsel, not the judge.
Judge Mary Kat Vyskocil of the Southern District of New York’s rules for civil cases encourage fuller participation among junior attorneys in “all proceedings—including pretrial conferences, hearings on discovery disputes, oral arguments, and examination of witness at trial” and especially if the less experienced lawyer had a “substantial role in drafting the underlying filing of in preparing the relevant witnesses.” Vyskocil was appointed by Donald Trump.
Chen’s individual motions and practices say that “if a party advises the Court in its pre-motion argument request that an attorney with five years or less of experience as a licensed attorney will be representing the party at the conference, the Court will schedule a pre-motion conference.” Chen is an appointee of Barack Obama.
Women, Lawyers of Color
In an interview, Chen said that while she and other judges encourage more participation from all young lawyers, the racial and gender disparities in the junior and senior ranks of law firms aren’t lost on her and some of her peers.
Women comprised over 50% of law firm associates in 2023, the first time they achieved that threshold in the 32 years the National Association of Law Placement has been tracking the data. Associates of color made up over 30% associate classes, a 1.8 percentage point boost and the greatest year-over-year increase NALP has measured for the group.
But Black and Latina women each accounted for just 1% of partners at law firms.
Women and people of color’s presence in top law firms are often questioned, which means they gain fewer substantive training opportunities and fewer chances to build a reputation for themselves, said Tsedale Melaku, a sociologist and author of “You Don’t Look Like a Lawyer: Black Women and Systemic Gendered Racism.”
“Women of color face this in more stringent ways, which prevents them from developing their craft,” Melaku said. “The only way you really become good at your craft is by practicing,” Melaku said.
With firms inclined to let their more seasoned attorneys, who are mostly White and male, handle proceedings, more diverse legions of junior lawyers are disadvantaged in a landscape where fewer cases make it to trial.
“If you think about the statistics, there are fewer lawyers of color or women towards the top, so we try to get them while they’re still young,” Chen said.
She added that “hopefully they’ll benefit from getting the experience they need at a younger age with these kinds of opportunities” and that their employers, firms, and clients will be incentivized to provide those opportunities.
Race Neutral
The ethics complaint pending before Chief Judge Diane Sykes of the US Court of Appeals for the Seventh Circuit, which covers federal trial courts in Illinois, tests the extent to which judges can explicitly promote courtroom opportunities for younger women and people of color.
Freda Wolfson, a retired chief judge of the District of New Jersey, said nothing in the order reads as obligatory or that the judges would grant oral argument in every case in which a woman or person of color would participate.
Providing oral argument is subject to a judge’s discretion, and no party has a right to oral argument. “It’s not as if the court is going to do something that will in any way harm anyone or delay a case,” she said.
The orders provide safeguards “for what the judges are trying to do, which is, as we get more minority members and women into the profession, making them active members and getting them the experience they would not otherwise perhaps get,” Wolfson, who informally encouraged junior lawyers who appeared before her while on the bench, added.
For now, Geyh said judges are better off advocating that the legal profession is best served nurturing all newer lawyers.
“I would have no problem with the order noting that as our profession becomes less homogeneous, with more women and people of color joining its junior ranks, the profession’s goals of promoting a diverse, inclusive, well-trained bar are likewise aided by affording junior lawyers additional oral argument experience,” he said.