There was an interesting article in the ABA Journal this week discussing how U.S. District Judge Elizabeth Wolford has responded to a New York State Bar Association report on women participating in court arguments at a lower rate than men. Wolford went public with how she has made it clear that, in a case where female associates were present, the court wanted to hear the argument from those attorneys as opposed to their male counterparts. The “suggestion” raises some obvious concerns over the use of gender or age in such decisions as well as the impact on a client’s choice of counsel.
The effort of Wolford to encourage the participation of female lawyers is commendable and the New York report identifies an area of obvious concern for the bar. However, the question is the role of the court in pushing for arguments from lawyers based on gender or age. How can a judge ideally pursue this well-meaning purpose and should there be limits?
Wolford told the ABA Journal that she has tried to make a difference by recounting a case before her shortly after the issuance of the report:
In addition to a male partner, each side had a female associate who, Wolford says, had clearly done the relevant research. With the report in mind, Wolford of the Western District of New York recommended the associates argue at the hearing—and they did.
Obviously, when a judge makes clear that she would prefer women to argue a case, most lawyers will yield to avoid any negative backlash. Yet, would this be viewed as a noble act if a judge said he preferred to hear from the men in the courtroom? Is the use of gender permissible simply because the judge is claiming a purpose other than sexism?
The interjection of a judge in the selection of arguing counsel based on gender is equally troubling with regard to the client’s right to choose representation. The client may be paying a more senior counsel (who happens to be male) because of his skill or knowledge. However, faced with a judge who expresses a desire to hear from women, the client must choose in alienating the judge or giving up his or her preference in representation.
While advocates maintain that these are nonmandatory rules, they may not seem so when a judge expresses her preference for a female or younger lawyer to argue. Firms already have an incentive to train younger lawyers by giving them time in arguments. The question of whether judges should actively push for selections based on gender or age is appropriate in an active case.
What do you think?