Andrea M. Alonso
*Originally published in the
DRI – The Voice of the Defense Bar
May 22, 2014

As attorneys, we will find ourselves in uncomfortable situations when clients make racist, sexist or politically inappropriate comments in our presence.  How does an attorney respond?  Typically these comments are made over the phone where the client has not met the attorney in person.  Sometimes they are made in a face to face conversation where the client makes an incorrect assumption about the attorney's ethnicity, sexual orientation, religion or political views.  Often times the person who uttered the incorrect and thoughtless remarks are crucial to the attorney's practice.  They may be important clients whose work generates substantial firm revenue.  The first rule of maintaining integrity I believe, is that one cannot misrepresent oneself or one's positions.

In many cases, employees of corporate America will incorrectly assume that as an attorney one is, of course, politically conservative.  While this is possible, liberal minded attorneys are not only found in academia and government but in the ranks of corporate law firms as well.  It is perfectly acceptable for clients to hold conservative political views but it is unsafe for them to assume that outside counsel holds those views as well.

If I hear a damaging statement about a political party or figure I make it clear: "I'm a Democrat."  That being said, I do not then begin to argue the fine points of the new healthcare law with my client but I do not stand mutely by either.

What if the comment is ethnically or racially derogatory?  This is a difficult situation since usually the client is unaware of the attorney's racial or ethnic background, or the ethnicity of the attorney's spouse, children, or other family members.  Often times in litigation these remarks are made in the course of discussing venue or jury makeup.  I have had high level clients tell me: "we are in the Bronx so pick a Puerto Rican jury because the plaintiff is Mexican and we all know Puerto Ricans hate Mexicans and the plaintiff is Mexican."  The client who said this did not know that I am Hispanic.  I believe that the appropriate response is to logically explain to the client that his theory is not based on a sound legal analysis, without pointing out his flawed stereotyping.  Attempt to reason with him without attacking his comments.  He will learn the truth soon enough.

Comments by clients are often directed at one's state or city.  I have had clients tell me that he hates to try cases in New York because "nobody speaks English."  This comment was made to an attorney whose first language is not English.  What is the appropriate response?  I attempt to be gracious and invite the makers of these offensive comments to visit our city when they are not on business, and I tell them in essence I will change their minds by showing them the wonderful diversity of food and culture New York has to offer.

Mark Twain said it best:

"Travel is fatal to prejudice, bigotry, and narrow-mindedness, and many of our people need it sorely on these accounts.  Broad, wholesome charitable views of men and things cannot be acquired by vegetating in one little corner of the earth all one's lifetime"

In this competitive business environment, clients are very difficult to get and even more difficult to keep.  As attorneys, we cannot lose our composure and with it, our clients when faced with ignorant comments such as the ones mentioned or in some cases much worse.  Keep calm, keep your composure.  Remember much is at stake.  Take the high road but do not agree, mislead or compromise.  Instead rely on logic, reasoning and above all the law and the strengths of your case to combat ignorance and insensitivity.

The judiciary can be equally insensitive to racial and diversity issues.  As a new generation of judges takes the bench, there seems to be fewer examples of inappropriate behavior.  As a young lawyer, I can recall a large settlement conference in court where there were not enough seats for all counsel.  When a court officer asked the judge where I should sit, he promptly responded "on my lap".  This was in front of representatives of every major insurance defense firm in the city.  How does one respond to this?  One must carefully weigh whether as a young associate they want to put themselves and their firm in the spotlight of the judiciary by reporting the judge to the judicial conduct committee.  This could result in the judge being publicly censured.  This is not the type of publicity that any firm in any city wants to have.  Nor does the young associate want to be known throughout his or her legal career as the associate who brought down Judge Blackstone.

Any response to inappropriate comments must come from rationality, not anger.  The appropriate response is not to laugh or to join in the fun, but rather to maintain one's composure and one's dignity and indicate to the judge in a subtle manner that his comment was inappropriate and an insult to the profession.  He and his court officers will quickly get the message.  The attorney has to weigh the consequences of her response to inappropriate/insensitive comments against the client's interest, which should always come first in any judicial setting.  Putting your own ego and feelings ahead of the best interests of a client and the resolution of the litigation, could be detrimental to one's reputation, especially for young lawyers.    

If a lawyer suffers indignities because of his/her diversity in a majority law firm, their response to those indignities will often be mischaracterized and a reputation for being "angry" or "difficult" will follow them professionally, perhaps for the rest of their lives.  No interviewing attorney wants to hear that a lawyer left a firm because they were "unable to get along with people."  No interviewing attorney wants to discover that a lawyer brought charges, commenced litigation or censured a previous employer.  For this reason, associates must tread carefully in responding to and engaging in discriminatory remarks in a law firm setting.  Experience has taught us that ethnic, sexual or racial humor, although it may begin in lighthearted banter, can end in very litigious situations.  The best tactic is not to engage, even as a passive participant, in any humor, teasing or poking that involves racial, sexual or religious "humor."  There is always a line of propriety that will be crossed once this trend of joking continues.  I have been in firms where what began as sexual humor ended with police officers being called in to file a report for harassment.  This call came from an associate and was unknown to the partners.  You can imagine their surprise when uniformed officers responded prepared to make an arrest.

Neither the offender nor the victim gained points by engaging in the harassing conduct, or reporting it to law enforcement officials without giving the law firm the opportunity to correct the offensive behavior.  Additionally, the reputation of the law firm would have been permanently damaged if clients had witnessed police officers entering the law firm and questioning partners.  The correct path for law firms dealing with discriminatory comments is to begin with extensive sensitivity training sessions for partners and associates.  Then a firm must establish a procedure for reporting unfavorable remarks and a system of how to deal justly with offenders and victims.

The legal community is a small one. Very quickly, it will be known that you were the associate who either made discriminatory comments or reported them to the authorities without first addressing the partners.  If discriminatory conduct or harassment takes place, the associate must discreetly and professionally address these issues with partners immediately and not let the situation escalate to outside sources without first seeking a resolution within the firm.

The lack of sensitivity to diversity issues in legal settings is astounding.  Despite years of discussion and education on these issues, the culture is difficult to change.  Patience is essential when dealing with these situations on a personal level.  From a managerial perspective, sensitivity training and enforcement systems must be established.  It may be hard to believe in this day and age, but sometimes people just don't know any better and they have to be educated.  In the words of Paul Robeson: "I know that people practice cruel bigotry in their ignorance, not maliciously."