Ethics Question of the Month - January 2020

Lawyer Andrew and Lawyer Beatrice are involved in contentious litigation on behalf of their clients.  During a heated argument in court over a pretrial motion, Andrew says “Well, judge, you know how emotional women lawyers get sometimes.”  Beatrice decides to let this comment go, not wanting to create a distraction or run the risk of annoying the judge while she is trying to be persuasive on what she considers to be an important matter for her client.  Over the next few minutes, things deteriorate and Andrew again disparages Beatrice, saying things like “Your Honor, I think my opponent’s behavior in this case demonstrates conclusively why women attorneys are not cut out to be litigators.”   

Finally, Beatrice has had enough and asks the judge to put a stop to Andrew’s comments regarding her and her gender.  The judge says “well, let’s see if we can keep this on topic” and then asks a specific question about the merits.  The judge does not address Beatrice’s complaints during the rest of the hearing. 

Which of the following is most accurate? 
A.    Both Andrew and the judge violated their ethical obligations under the applicable rules
B.    Lawyer Andrew violated the Disciplinary Rules of Professional Conduct, but the judge did not violate the Code of Judicial Conduct. 
C.    The judge violated the Code of Judicial Conduct, but Andrew did not violate the Disciplinary Rules of Professional Conduct. 
D.    Neither violated any enforceable ethical rules because the behavior in question, at worst, violated the Texas Lawyer’s Creed, which is, by its terms, merely “aspirational.”     

Texas Lawyers are bound by the Texas Disciplinary Rules of Professional Conduct (TDRPC), while Texas judges are bound by the Texas Code of Judicial Conduct.  Both have provisions dealing with bias.  

Rule 5.08 of the TDRPC reads: 

Prohibited Discriminatory Activities

(a) A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.

(b) Paragraph (a) does not apply to a lawyer's decision whether to represent a particular person in connection with an adjudicatory proceeding, nor to the process of jury selection, nor to communications protected as confidential information under these Rules. See Rule 1.05(a),(b). It also does not preclude advocacy in connection with an adjudicatory proceeding involving any of the factors set out in paragraph (a) if that advocacy:

  • (i) is necessary in order to address any substantive or procedural issues raised by the proceeding; and
  • (ii) is conducted in conformity with applicable rulings and orders of a tribunal and applicable rules of practice and procedure.

Lawyer Andrew clearly is exhibiting “bias or prejudice” on the basis of sex by “words or conduct” toward Lawyer Beatrice simply because she is a woman.  The various exceptions outlined in Rule 5.08(b) do not appear to apply here.  

The only question is whether Andrew was acting “willfully” when he made his remarks.    It appears that he was – his comments were made  more than once, and were made with the obvious intention of criticizing Beatrice based on her gender in an attempt to prejudice the judge against her apart from any substantive argument.  Andrew’s behavior is a clear violation of Rule 5.08.  

The judge is bound by Canon 3 of the Texas Code of Judicial Conduct, which reads in part:

B. Adjudicative Responsibilities 

(6)  A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge's direction and control to do so. 

(7)  A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others. This requirement does not preclude legitimate advocacy when any of these factors is an issue in the proceeding.

The judge did not say anything that could be construed as biased, so he (or she) did not violate Canon (3)(B)(6).  However, the judge failed to require that Andrew refrain from making his biased and prejudiced remarks, even after being asked to do so by Beatrice.  The judge’s failure to respond to this direct request to prevent Lawyer Andrew from making statements  manifesting clear bias and prejudice did violate Canon (3)(B)(7).  

The Texas Rule pertaining to bias or prejudice by lawyers is in accordance with the ABA Model Rules.  Rule 8.4 states in part: 

It is professional misconduct for a lawyer to: 

g) 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.

Comment 3 to Rule 8.4 states that: 

Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct.

Finally, the Texas Lawyer’s Creed does address this issue, stating in Section III(10) that “l will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses.”  As noted, however, the Creed is “aspirational” in nature because it is a statement of professionalism and civility and not a set of mandatory rules on par with the TDRPC:   

These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon re-enforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence. These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed.

While the judge clearly could have used inherent contempt powers to address Andrew’s behavior in the courtroom, Texas lawyers are disciplined only for violations of the TDRPC.  A is the correct response.  

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About Ethics Question of the Month

Ethics Question of the Month is a regular feature of the Texas Bar Journal created and sponsored by the Texas Center for Legal Ethics.

DISCLAIMER: The information contained in Ethics Question of the Month is intended to illustrate an ethics issue of general interest in the Texas legal community; it is not intended to provide ethics advice that applies regardless of particular facts.  For specific legal ethics advice, readers are urged to consult the Texas Disciplinary Rules of Professional Conduct (including their official comments) and other authorities and/or a qualified legal ethics advisor.

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