Check Your Identity-Baggage at the Firm Door: The Ethical Difficulty of Zealous Advocacy in Bias-Ridden Courtrooms

Abstract:     
Is it ethical for a law firm to remove a lawyer from a case because a jury might be prejudiced against that lawyer? What if considering the attorney’s demographic identity would maximize the client’s chances of litigation success? This Note explores the tension between the duty of zealous advocacy and the anti-discrimination principles within the legal profession. It concludes that current ethical rules governing litigation tactics do not meaningfully guide firms in deciding which principle should triumph in the context of staffing cases. Without guidance from the Model Rules of Professional Conduct or the Model Code of Professional Responsibility, law firms may engage in practices that can severely limit litigation opportunities for attorneys with attributes that have been historically discriminated against. The Note proposes ways that the legal profession might regulate conduct pertaining to attorney’s identity-baggage in litigation.

Accepted Paper Series