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"Diversity" News: Federal Magistrate to Consider Racial Makeup of Law Firms in Choosing Class Counsel:

Minnesota Public Radio (temporary link):

The attorneys jockeying to lead the lawsuits against UnitedHealth Group Inc. will have to answer some questions first, beginning with: How many women and minorities does your firm employ?

On Monday, Magistrate Judge Franklin Noel ordered the law firms vying to be named lead counsel to answer that question by Saturday. He also ordered the attorneys to provide a 10-year history of "legal-ethical issues" for each attorney and that attorney's law firm. Noel wrote that the information won't decide who is lead counsel, "but it may be considered in making a decision regarding leadership in this case."

I don't have the text of the order, but it sounds like Judge Noel is engaging in double-talk; "I'll consider the racical makeup of your law firm, but because it's not the only factor, it won't be the decisive factor," which isn't a coherent statement.

UPDATE: More on this story:

Robert D. Klausner, who is part of the legal team trying to be lead counsel on behalf of a group of pension funds, said his law firm has gotten requests like this from cities, although not as often from judges. Los Angeles recently hired his firm for pension work, and Klausner said they had to document ethical issues, minority business practices, and whether it offers health insurance for employees.

"There's nothing disturbing or unusual or troubling in any way about it," he said.

Chief Judge James Rosenbaum, who will handle the UnitedHealth lawsuit, said he knew of Noel's order. He said federal judges in Minnesota have issued similar orders in a few other recent cases.

"We have made a decision that this is something we want to focus on," he said.

"Frankly sometimes when you walk into a courtroom on large cases of this nature, it looks like Minnesota might ... not have any people that are female, and might not have any people that are of other than Caucasian extraction."

Federal judicial rules instruct judges to pick the lawyer best able to represent class-action shareholders, said Allan Erbsen, who teaches federal civil procedure at the University of Minnesota Law School. Although a judge could argue that the racial and gender makeup of a law firm should be part of that equation, he said.

"The judge is running the risk that an appellate court might find that the judge considered criteria that the rule does not allow him to consider," Erbsen said.

I fail to see how the color of a lawyer's skin has anything to do with one's ability to represent a class, and it strikes me that a judge who gives an edge to a firm based on its racial (or gender) composition is obviously considering a criterion other than the best firm for the class's interests.

It may be nice, in the abstract, that Judge Rosenbaum and his colleagues have decided that it makes them feel good to know that they are appointing "diverse" firms, but don't federal judges have an obligation to follow, you know, THE LAW?

[If Judge Rosenbaum, Judge Noel, or any of their colleagues would care to explain why they believe that it's appropriate, legally and ethically, to "focus on" race and gender considerations in selecting class counsel, I'd be happy to post the explanation.]

Further Update: BTW, this is MUCH more problematic than an employer that chooses on its own initiative to hire based on race or gender. In that case, one can argue about whether such policies are fair to white men, but the employer itself also bears the cost (or benefit) of the hiring decisions it makes. In the class counsel situation, the judges are getting the benefits (the moral satisfaction of helping to "diversify" the profession), but the costs of using criteria other than "the best able to represent the class" are born by the class, not by the judges.

Guest Guy:
I don't see that statement on the page you linked. And I can't read your attempt at paraphrasing into what the judge has done, given that he's also considering "legal-ethical issues" which "may be considered in making a decision ...."
6.27.2006 4:55pm
Anon1ms (mail):
I don't see where the statement you deem incoherent is all that difficult to grasp.

If you have multiple criteria for making a decision and add another, it will play a role in he final decision without necessarily being the decisive factor.

Now whether or not it should be a factor at all is a different issue -- and that's what I suppose you are getting at.
6.27.2006 5:07pm
JohnAnnArbor:
Wonder how they define "minority"?

Lithuanians?

Laotians?

Jews?

People with cleft palates?
6.27.2006 5:08pm
Matt Tievsky (mail):
Whether the judge is being coherent depends upon the meaning of "won't decide." (It doesn't help that those aren't his actual words.) If he meant "won't always decide," he was being coherent, but that statement seems too obvious to be worth making. If he meant "will never decide," then he's being incoherent: There's no point to including a factor in a decision-making process unless there are some circumstances under which it will be the deciding factor.
6.27.2006 5:17pm
Stamboulieh (mail):
Would the definition of minority also depend on where the firm was? If it's in a predominantly X race area, and they have predominantly X race on their staff.... does that mean they aren't diverse enough because they don't have enough Y race?

Oh, and I think Greeks are still in the minority, eh? :)

S
6.27.2006 5:18pm
Houston Lawyer:
Maybe he's intent on hiring the firm with the highest ratio of white males.

Does the "legal-ethical issues" question relate to the recent indictment of Milberg Weiss or something else?
6.27.2006 5:34pm
strategichamlet (mail):
Completely off topic, but is it just me or are people in love with the word "decisive"?

A prof of mine once cut off a student who used the word "decisive" about the battle of Hampton Roades with the comment "You understand that a war can only have ONE decisive battle, right?"
6.27.2006 6:15pm
Carolyn Elefant (mail) (www):
I have a post on diversity in the profession and on this case over at www.legalblogwatch.typepad.com. But what I find odd is how so many people are arguing that affirmative action at law schools is harming minorities, when in fact, articles like this one demonstrate the huge demand for minority lawyers from elite schools. If corporations and judges are going to ask for diversity, then elite schools should come up with a way to prepare their minority graduates to take advantage of these opportunities. I should clarify that I oppose the ABA proposal both because I hate the ABA and I don't believe that the ABA should be in the business of mandating diversity. But I have absolutely no problem with a law school choosing to increase diversity.
6.27.2006 6:53pm
GMUSL Rising 3L (mail):
Carolyn,

The two aren't incompatible at all. Just because there's a huge demand for minority lawyers doesn't mean that affirmative action isn't harming them. Drawing a link between the two requires a presumption that the demand for minority lawyers is merit-driven or product-driven (let's just call it "content-driven") rather than form-driven. It brings to mind Thomas' opinion on the Michigan cases where he referred to the affirmative action plan as "classroom aesthetics . . . wanting to control everything from the size and shape of the desks to the color of the students sitting in them." Substitute "law office" for "classroom" and "lawyers" for students and it's the same argument.
6.27.2006 7:08pm
Gordo:
Since the next Professor Bernstein screed on affirmative action doesn't allow for comments, I thought I would post on this earlier one. The Professor is, I think, eseentially castigating both the judges ont his thread and the California/Washington State elected officials on the next thread for ignoring the law in the same way the "massive restistance" segregationists of Virginia did in the late 1950's.

However, I would bet that these judges and those elected officials would have a mirror image viewpoint on the whole issue of lawbreaking. They would see it as resisting an oppressive and racist law that bans affirmative action or quotas. While Professor Bernstein thinks that these Judges are the modern-day Harry Byrds, these judges probably think of Professor Bernstein and other anti-affirmative action zealots as - well, not modern day Harry Byrds, but perhaps like the bus driver who booted Rosa Parks off the bus in 1956.

Amazing what a different perception will do ...
6.27.2006 7:28pm
JohnAnnArbor:
They would see it as resisting an oppressive and racist law that bans affirmative action or quotas. While Professor Bernstein thinks that these Judges are the modern-day Harry Byrds, these judges probably think of Professor Bernstein and other anti-affirmative action zealots as - well, not modern day Harry Byrds, but perhaps like the bus driver who booted Rosa Parks off the bus in 1956.

Wow, how Alice-in-Wonderland can you get? Treating people equally based on race is now "racist"? Laws requiring people to be trested equally are "oppressive"?
6.27.2006 7:32pm
DavidBernstein (mail):
The next "screed" is a quote from a John Leo column, and reflects his thoughts, which I found interesting enough to pass along. If I wanted to adopt them verbatim as my own, I would have said something like "Exactly!" or "Right on!"
6.27.2006 7:33pm
te (mail):
As always Bernstein is keeping a careful watch for anything that might endanger the egos or bank accounts of white men like me.

Press on soldier!
6.27.2006 7:40pm
DavidBernstein (mail):
Gee, it's really helpful to respond to ethical and legal doubts about choosing class counsel based on race and gender by not-very-subtle accusations of racism.
6.27.2006 7:46pm
Bryan DB:
Actually, unless Prof. Erbsen is thinking of something different, the FRCPs don't say that a lawyer "best able" to represent a class must be the most qualified, or the firm with the most white males.
Here's the relevant text of FRCP 23:

(B) An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.
(C) In appointing class counsel, the court
(i) must consider:
* the work counsel has done in identifying or investigating potential claims in the action,
* counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action,
* counsel's knowledge of the applicable law, and
* the resources counsel will commit to representing the class;
(ii) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;
(iii) may direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs; and
(iv) may make further orders in connection with the appointment.

Arguably, 23(g)(1)(C)(i) defines "best able," but the rest of 23(g)(1)(C) leaves a lot of leeway for the judge.
The bit about "legal-ethical issues" falls squarely into 23(g)(1)(C)(ii), while anything about diversity can fall under part (iv), no problem. In some cases, that information may even be "pertinent to the appointment."
6.27.2006 8:06pm
Stephen M (Ethesis) (mail) (www):

Would the definition of minority also depend on where the firm was? If it's in a predominantly X race area, and they have predominantly X race on their staff.... does that mean they aren't diverse enough because they don't have enough Y race?

Oh, and I think Greeks are still in the minority, eh? :)



Good point. Per capita, fewer Greeks get into graduate schools than African-Americans. The only affirmative action I know of that has been applied to Greeks was the old Planned Parenthood eugenics program that targetted Greeks (along with some other groups) for "improvement." Since then, they've pretty much been left out of things.

Has it helped them, hurt them or made no difference?

Good question.

Interesting to see that someone else notices the issue.
6.27.2006 8:27pm
Gordo:
Just to properly backtrack, I was trying to explain why these judges and the West Coast elected officials might have a different viewpoint on this whole "breaking the law" subject. I didn't say I agreed with them.

If I were still a California resident, I would be outraged that local officials were defying the law, instead of taking a creative apporach like giving preferences based upon poverty, not race (a far more defensible kind of "affirmative action"). And the class in a class action lawsuit deserves the best counsel. Period. These judges, by including affirmative action factors, are not doing that.
6.27.2006 8:47pm
elChato (mail):
so Chief Judge Rosenbaum is talking to the press about the merits of his order? What's next, will he invite a camera crew to follow him into his chambers while he ponders how best to Do Great Things?
6.27.2006 9:08pm
picpoule:
Well, I'm a woman and I am against preferences or affirmative action of any kind, gender based or race based. Preferences and affirmative action are racist, sexist, and at heart, immoral.
6.27.2006 9:08pm
Greedy Clerk (mail):
Well, I'm a woman and I am against preferences or affirmative action of any kind, gender based or race based.

In other words: I don't believe that my status as a woman is worth any consideration, but since I am a woman, my comments on this should be taken more seriously. The irony.
6.27.2006 9:43pm
Greedy Clerk (mail):
In the class counsel situation, the judges are getting the benefits (the moral satisfaction of helping to "diversify" the profession), but the costs of using criteria other than "the best able to represent the class" are born by the class, not by the judges.

Of course, the assumption DB makes is that racial diversity is a cost. Think about it.

In that case, one can argue about whether such policies are fair to white men . . .

Somebody get me a tissue --- me and my white male brethren are so oppressed these days.
6.27.2006 9:45pm
trock:
<i>Of course, the assumption DB makes is that racial diversity is a cost. Think about it.</i>

No, the assumption DB makes is that pursuing racial diversity will impose costs in cases such as these, not that it IS a cost. I expect better from you GC.
6.27.2006 10:22pm
Cornellian (mail):
If I were looking to hire a law firm, and it had 300 lawyers, of whom 280 were men and 295 were white, I'd be suspicious that something was wrong with that firm. However, that's a long way from saying courts ought to consider the racial makeup of firms when appointing class counsel. Nothing in the post indicates the judge has any authority to do what he's doing, other than the tenuous argument that the racial makeup of the firm is relevant to the merits of that firm's claim to being appointed class counsel.
6.27.2006 10:48pm
David M. Nieporent (www):
Somebody get me a tissue --- me and my white male brethren are so oppressed these days.
See, this illustrates the very problem with the far left's diversity ideology. People who happen to be of the same skin color are not interchangeable. If someone who's white loses out on lead counsel selection to a minority based on skin color, that person is oppressed. It doesn't matter about Greedy Clerk and his white male brethren. The guy who lost out doesn't benefit from Greedy Clerk's apparent good fortune.
6.27.2006 11:39pm
SP:
In other words: I don't believe that my status as a woman is worth any consideration, but since I am a woman, my comments on this should be taken more seriously. The irony.

Her point is that, despite the fact that it would clearly benefit her, she does not support affirmative action. This suggests that her motivations are based on something other than self-motivation, which would be a relevant point. Of course you know that, you're just being a gadfly.
6.28.2006 1:00am
H2:
Exactly, SP.
Greedy Clerk was just being snippy to picpoule.
6.28.2006 2:27am
Elais:
I don't have a large problem with affirmitive action and I'm a white woman. O

I wouldn't consider myself 'oppressed' because no one chooses me because I am a white woman. If I see nothing but white men being hired despite a large number of white woman applying, then I probably would consider that close to oppression. Even so, how can I prove that they are oppressing me, if they claim it just so happens that the men are all more qualified than the women?

People are full of prejudices. Not doing anything to remedy that seems wrong.
6.28.2006 2:33am
jab (mail):
I don't know if this is anything close to reality in these situations... but what if there were, say, 100 firms vying for this "contract", and by fair, neutral objective standards, the decision-makers narrowed the larger pool down to say the top
5... who, perhaps could be ranked further, but the differences among these top 5 are not very significant... in such a case, why would it not be OK to look at "extra" factors such as diversity?? When faced with picking ONE out a much larger pool, very often you can redice it down to a very small number at the top, but then making the final decision among the best often comes down to dice... so in situations like that, why not "weight" the dice a little bit?
6.28.2006 9:45am
jab (mail):
Oh, I just wanted to add,
I could see how my above analysis could wotk in the private sector or in university/law admissions but perhaps in the sphere of the courts, maybe it would be best to literally flip
a coin or use a lottery once the pool has been narrowed down to the very best... the appearance of fairness in the judicial/legal sphere should trump all other concerns, I think.
6.28.2006 9:48am
Houston Lawyer:
Is there any requirement that the sought after minority actually perform the work? My experience is that law firms put their minority attorneys up front at every dog and pony show that they put on. Ditto for marketing brochures. However, when it comes to the nitty gritty of getting the deal done or the case tried, that minority status no longer means anything and the most qualified attorney actually does the work.

It would be an interesting switch to pull on this judge. Trot out your minority attorneys in order to get the job, but then staff the job with white men. Dare him to complain.
6.28.2006 11:58am
Guest Guy:
Anyone else notice how DB complains that the federal judge is bound "to follow, you know, THE LAW" but only cites some guy's interpretation of, you know, THE LAW?

If it's such a glaring error and contrary to, you know, THE LAW, why doesn't DB point us to, you know, THE LAW that Judge Noel isn't following?
6.28.2006 12:08pm
MnZ (mail):
If it's such a glaring error and contrary to, you know, THE LAW, why doesn't DB point us to, you know, THE LAW that Judge Noel isn't following?

Actually, Bryan DB does provide it. However, I think his interpretation is wrong.

Arguably, 23(g)(1)(C)(i) defines "best able," but the rest of 23(g)(1)(C) leaves a lot of leeway for the judge.
The bit about "legal-ethical issues" falls squarely into 23(g)(1)(C)(ii), while anything about diversity can fall under part (iv), no problem. In some cases, that information may even be "pertinent to the appointment."


(i) trumps (ii)-(iv). ("Must" vs. "May")

I would point out that given that this is a securities case. In other words, my guess is that a disproportionate number of class members will probably be white and/or male. It is difficult to understand why these class members would be benefited by the diversity of their class counsel.
6.28.2006 1:46pm
Allan Erbsen (mail):
Bryan DB:

The provision of FRCP 23 that I quoted in the press article cited in the original post was not 23(g)(1), it was 23(g)(2)(B), which states: "If more than one adequate applicant seeks appointment as class counsel, the court must appoint the applicant best able to represent the interests of the class."

This provision suggests that if a court deciding which firm to appoint as lead counsel wants to consider a firm's demographics, it must first find a link between the firm's composition and the firm's ability to discharge its representative duties.
6.28.2006 1:49pm
Christopher Cooke (mail):
I thought of two possible, non-affirmative action, rationales for considering ethnic makeup of a law firm's attorneys in choosing class counsel, which could satisfy Rule 23's criteria, but raise other issues.

First, I suppose you could make the argument that, if the jury pool were predominantly of one ethnic group, it might be better to have one of the class' trial lawyers to be of the same ethnic group, if you believe that people of the same ethnic persuasion relate to, and understand, each other better than they do of another persuasion. Maybe social scientist might be able to support this assumption with data, I don't know.

Second, for similar reasons, if the case were a Title VII class action case, involving members of one ethnic group claiming discrimination on account of their ethnicity, maybe you can make the argument that having at least one lawyer of the same ethnicity might help the plaintiff class members better communicate with their counsel.

The problem with these reasons is that my understanding is that the judge is selecting class counsel for a federal court class action. In my experience, most federal juries are largely white, because they draw upon registered voters for their venire (at least, that has been my experience in the San Francisco Bay Area, where I practice law, but this is a very ethnically diverse area). Maybe the federal juries in Detroit are predominantly African American, and that is why the judge wants a more diverse law firm representing the class (the lawyer might have better "jury appeal").

The problem with the "relates well to the class" view (apart from the assumption about people of the same ethnic group only relating well with people of the same group, which I leave to others to decide) is that class members in a securities class action are largely white, I would guess (this is based on my experience in defending these class actions, and from working at the SEC investigating investment fraud and contacting investors).

Notwithstanding these reasons, I don't think the court should consider diversity under Rule 23 in selecting class counsel, for the same reasons that we prohibit civil law practitioners under Batson from striking members of one ethnic group: our courts and system of justice should be color-blind, even if we know that justice is not always color-blind. And, I agree with Professor Bernstein's idea that the court should be more reluctant than a private employer to consider diversity in choosing counsel, precisely because the court is acting as a fiduciary for the class.
6.28.2006 3:27pm
Christopher Cooke (mail):

Maybe the federal juries in Detroit are predominantly African American, and that is why the judge wants a more diverse law firm representing the class (the lawyer might have better "jury appeal").



Sorry, I misread the post as applying to Michigan, not Minnesota (those M states are all the same, anyway). I suppose the judge still could be concerned with appointing counsel that will have better jury appeal in his district ( I don't know enough about the court's district's demographics to venture a guess).
6.28.2006 4:45pm
Mary Katherine Day-Petrano (mail):
"Wow, how Alice-in-Wonderland can you get? Treating people equally based on race is now "racist"? Laws requiring people to be trested equally are "oppressive"?"

Happens all the time with disabled people who assert similar rights under the Americans With Disbailities Act. It is the motivation for doing so that really justifies the federal antidiscrimination laws -- those who gain unfair advantages (financial, reputational, career climbing, privileged opportunities) do not want to give up their positions because they know if the antidiscirmination las are enforced a fair share of them will be unable to compete on the merits.

Hundreds of years of the same old same old. What else is new?
6.28.2006 5:02pm
Mary Katherine Day-Petrano (mail):
"As always Bernstein is keeping a careful watch for anything that might endanger the egos or bank accounts of white men like me.

Press on soldier!"

I do not express any opinion about Mr. Bernstein, however, you must mean "non-disabled whte men." If one reads the history leading up to Florida's enduring disgrace of Virgil Hawkins, it is very relevant that white men had the audacity to label ("regard as") African Americans as having a psychiatric disability called drapetomania -- that is the inability to turn white.

Historically, as an insult to both disabled people and African Americans, all African Americans were attributed the psychiatric disability made up by white men.

If anyone researched the Florida Supreme Court draft opinions on file in the decades long Virgil Hawkins affair, it would become readily apparent the Florida Bar advocated denial of bar admission to Mr. Hawkins 'until the KKK rode out of Gainsville' or he 'turned white.' That is psychiatric-speak for attributing Mr. Hawkins with drapetomania, for which it was believed there was no cure.

That is until Michael Jackson, who it would appear has altogether escaped the call "Press on Soldier."

Amazing the criteria some still use to determine who is a successful lawyer. Criteria that has nothing to do with ability.
6.28.2006 5:11pm
Mary Katherine Day-Petrano (mail):
"In other words: I don't believe that my status as a woman is worth any consideration, but since I am a woman, my comments on this should be taken more seriously. The irony.

Her point is that, despite the fact that it would clearly benefit her, she does not support affirmative action."

This is interesting, because in my experience as both a woman, and one who was severely injured by domestic violence battering, I stand at the junction of gender vs. disability protection. I rarely raise a gender claim instead of a disablity claim because they seem to be completely incompatible.

For example, I litigated an Americans With Disabiltiies Act case before a federal judge who was very active in advancing the gender equality (females) in a local law school of which she was a member of the board of law overseers. Having done much research on the judge, the law school, and the gender equality issues the judge advanced, as well as the law clerks she hired, it became readily apparent this judge only considered very perfect women who had the appearance of a model for her brand of gender equality.

A woman who has been battered in domestic violence and severely injured as a result is in many cases the opposite of the strong, perfect woman epitomized by the gender discrimination claim -- the disabled woman may be weaker, have a cosmetic disfigurement or other severe disability. For many years now gender discirmination claims have advanced the opportunities for women who can claim they have the same ability as men, strong, capable, e.g., firefighters, policewomen, etc.

Because a woman severely disabled as a result of domestic violence cannot fit the prototype among other women to fulfill the gender discrimination claim as being capable because she is strong, other perfect women (opposing counsel, judges) will reject the gender claim of such a woman, depsite her being part of the class of all women.

This results in an ADA claim being more likely to succeed for a woman severrely disabled from domestic violence, even where her oppressor is a man or several men. Unfortunately, when a woman severely disabled as a result of domestic violence brings an ADA claim the same result inevitably occurs due to unconscious (or conscious) stereotypes maintained by many women judges -- that she is not deserving of protection because she cannot meet the perfect strong woman requirements of all women. This has been my experience over 16 years.

"And the class in a class action lawsuit deserves the best counsel. Period. These judges, by including affirmative action factors, are not doing that."

I really have to disagree with this remark, in certain contexts. For example, whle some may hold the dubious belief that male counsel can serve as the best counsel for women or that whites can serve as the best counsel for African Americans, in the disability context the above remark really fails.

For example, if I had been provided the necessary reasonable accommodations Ir equired to opt out, I would have gotten involved in a Tennessee State Court class action representing a class of people from several Southeastern states including Florida where I live.

In my experience, there is a real misperception among non-disabled class counsel that class action lawsuits can be conducted without regard to the fact that in almost any class action a certain eprcentage of the class will have disabilities -- mirroring the percentage in the general population of the United States (42 U.S.C. Sec. 12101(a) "43,000,000 Americans"). Among this percentage, a subclass of the class, if you will, some may be deaf or hearing impaired and require interpreters or TTY; some may be blind or vision impaired and require braille or screen readers; others may be mobility or cognitively impaired and require speech recognition or its more outdated counsin, a scribe.

When counsel is selected for a class action, say to represent all people who had insurance with a car insurance company during a 10 year period in several states, and a percentage of the class is disabled, several problems arise relating to the "best counsel" to represent the class. Counsel who have had no disability awareness (education on what type of impairments people with various different types of disabilities might have) and ADA education -- or in the case of federal court training relating to the Federal Courts Interpreters Act(education on the requirements of those Acts), are usually oblivious to the barriers class notices, opt out, etc. pose to the disabled members of the class. Another problem is the class may not really be representative if the subclass is quite different on account of disability.
And these are just a couple of examples.

"Notwithstanding these reasons, I don't think the court should consider diversity under Rule 23 in selecting class counsel, for the same reasons that we prohibit civil law practitioners under Batson from striking members of one ethnic group: our courts and system of justice should be color-blind, even if we know that justice is not always color-blind. And, I agree with Professor Bernstein's idea that the court should be more reluctant than a private employer to consider diversity in choosing counsel, precisely because the court is acting as a fiduciary for the class."

This is a very interesting remark because the issue of diversity under Rule 23 is not analogous to Batson. In the disability context, there can be repercussions to counsel in a class action who do not adhere to the disability protections already enacted into law. Taking the Tennessee State Court class action example, I was not provided any meaningful opportunity in the Tennessee State Court services to opt out "with" my necessary reasonable accommodations. There was no notice of ADA rights on the pleadings served on me by Tennessee class counsel as required by 28 C.F.R. Sec. 35.106. Yet I purport to be bound by the judgment if a disability barrier to exercising my right to opt out (say I have a much larger recovery potential if I opt out and bring suit spearately than if I stay in the class) prevents me from doing so?

The exposure to the Tennessee State Court for providing court services that discriminate against disabled class members (including those of other states like Florida) is a Title II ADA lawsuit under Tennessee v. Lane for monetary recovery of the amount of loss the separate suit would have brought due to the failure to provide disability notice and accommodations necessary to opt out. It seems really quite easy to assert the Tennessee class counsel are Title II instrumentalities (rather than a Title III ADA law office), to recover monetary damages against them as well for being oblivious to the ADA rights of their disabled subclass in the class action.

However, interestingly, it would be quite difficult (though not impossible) to separately obtain class certification for the subclass of disabled since anyone who has read thousands of ADA cases knows the class action device has been viewed by many judges as problematic due to the number of different types of disabilities, and alternatively orgranizations who attempt to represent the disbaled frequently lose for lack of standing.

"Is there any requirement that the sought after minority actually perform the work? My experience is that law firms put their minority attorneys up front at every dog and pony show that they put on. Ditto for marketing brochures. However, when it comes to the nitty gritty of getting the deal done or the case tried, that minority status no longer means anything and the most qualified attorney actually does the work.

It would be an interesting switch to pull on this judge. Trot out your minority attorneys in order to get the job, but then staff the job with white men. Dare him to complain."

And, ha! Maybe there IS such a requirement in the context of disabilities, of not race. If I were hired by a large firm and made the assigned class counsel to satisfy the diversity requirements of a diversity-minded judge, only to be a token not allowed to accomplish the essential functions of the representation for which I were hired, I can only imagine the ADA liability the firm might then face. Perhaps a Title I ADA claim brought to the EEOC, then in court; however, if the firm and/or partners, associates involved were Title II intumentalities, then perhaps a Title II employment claim that does not require
EEOC exhaustion of administrative remedies before filing suit. Disparate treatment.

I did see something like this before -- attorney A has partner B, partner B discriminates against attorney A, they are partners in a law firm. Attorney A bring ADA employment suit against partner B under partner B's partnership obligations as an employer of attorney A.

I say diversity and affirmative action ARE a requirement of Rule 23 "best counsel" who can best represent the class if a protected classification is involved among members of the class action plaintiff class. It would be a litigation minefield to thnk otherwise. I commend the judge who had the forethought to be diversity-minded.
6.28.2006 6:33pm
Bob Loblaw (www):
The shark has been jumped.
6.28.2006 6:55pm
Christopher Cooke (mail):
Mary: aren't what you are really saying is that class counsel should be aware of the particular needs of the absent class members he or she is appointed to represent? I agree with that, but wonder whether a lawyer's ethnicity or physical disability should be used as a proxy for evaluating whether the attorney has that ability.

Isn't the class action attorney's track record a better indication of whether he or she will do a good job representing the class? And, wouldn't a class of plaintiffs be poorly served by an attorney who, although sharing the same physical disability or ethnic characteristics as the class he or she represents, can't draft a decent brief in support of class certification or in opposition to the defendant's motion for summary judgment, or who can't take a decent deposition to develop the facts needed to prove the case, or who gets tongue-tied before a judge or jury?
6.28.2006 7:05pm
Mary Katherine Day-Petrano (mail):
"Mary: aren't what you are really saying is that class counsel should be aware of the particular needs of the absent class members he or she is appointed to represent? I agree with that, but wonder whether a lawyer's ethnicity or physical disability should be used as a proxy for evaluating whether the attorney has that ability.

Isn't the class action attorney's track record a better indication of whether he or she will do a good job representing the class? And, wouldn't a class of plaintiffs be poorly served by an attorney who, although sharing the same physical disability or ethnic characteristics as the class he or she represents, can't draft a decent brief in support of class certification or in opposition to the defendant's motion for summary judgment, or who can't take a decent deposition to develop the facts needed to prove the case, or who gets tongue-tied before a judge or jury?"

Are you serious with this sort of inquiry? I really feel like we are living in the dark ages ...

Ethnicity -- I am not sure there are barriers with ethnicity, depending on what type of class action. If the injury suffered were related to cultural damages, maybe ethnicity diversity in class counsel would be needed. If the injury suffered were, say, damages from losses in a securities suit, maybe not. But it is iimportant to remember the different protected classifications have, well, different problems that ned to be addressed.

Physical disability -- I feel like I have to educate members of the legal profession one-by-one. Why is this necessary? Here goes: Why do you think "physical" disability when someone speaks about "disability?" Are you saying only the "physically" disabled count in this equation?

A couple years ago, General Counsel of The Florida Bar sent my husband and I a CLE book on discrimination las to show us The FLorida Bar was in compliance with the Americans With Disabilities Act. In the disability sections of the book, including under the FLorida Civil Rights Act (which is supposed to be interpreted like the ADA), we were shocked to see The Florida Bar CLE writers thought only "physical" disabilities were entitled to protection.

How is it now 16 YEARS after enactment of the ADA (and 33 YEARS after enactment of the Rehabilitation Act of 1973) people still have not gotten word that people have mental disabilities and that people with mental disabilities are protected as well?

Here is another insight from the disability world: people with disabilities very often have multipple disabilities, physical, mental, and/or neurological, and these disabilities are not neatly separable. For example, if a person's ability to manage glucose is off, this can cause diabetes ("physical" disability), obesity ("physical" disability), heart disease ("physical" disability), or amalyoid buildups in the brain ("mental" disability leading to Alzheimers), etc. Another example, autism is a neurological disability affecting an assymetrical brain ("mental" disability), food allergies ("physical" disability), gastrointestinal conditions ("physical" disability), various fibomyalgias or reflext sympathethis dystrophy related to the central nervous system ("physical" disability), learning disabilities "mental" disability), and attention-deficit disorder ("mental" disability, etc.

I don't mean to be critical, but by your comments it seems like your disability awareness needs an update. See, the problem I have with your inquiry is I do not think disability serves as a "proxy" for determining whether a lawyer has the "ability to be class counsel," i.e., whetyher the lawyer holds an attorney license.

What I am saying is most people who are not disabled do not have firsthand experience what it is like to have a disability, therefore cannot spot what types of things are likely to pose barriers, and most do not care (or are overtly hostile to disabilities). I was not generalizing that 100% of nondisabled lawyers do not have disability awareness, but it has been my experience most do not. I can say in Florida and California, that is the fault of the State Bars for not requiring CLEs and MCLEs in the ADA/Rehabilitation Act. I realize there are lawyers and judges who have family members with severe disabilities or have volunteered in schools or organizations that serve such disabled people. Therefore, until such time as federal antidiscrimination disability CLEs and MCLEs are required, it IS relevant for a judge to determine the diversity of whether class counsel is a qualified individual with a disability.

"Isn't the class action attorney's track record a better indication of whether he or she will do a good job representing the class?"

To be a qualified individual with a disability necessarily implies the class counsel knows the requirements of the ADA and Rehabilitation Act. So it is not that "physical disability" is a "proxy," but instead qualified individual with disablity status is a way a judge can ensure the class counsel has the law school courses, CLEs, or other work experience in ADA or Rehabilitation Act necessary to understand the complex issues involved in representing a class action containing members protected by the requirements of the ADA or Rehabilitiation Act (even if this is not the cause of action involved in the class action suit).

The fact an attorney has a "track record" in class actions does not necessarily mean the attorney has qualifications by education or "track record" experience in representing class members to whom the attorney owes affirmative antidiscrimination protections in the course of his representation.

I worked for a great Harvard LLM civil rights class action attorney who himself had MS. He was a brilliant attorney. I have no doubt because of his own disability (MS is a physical and mental disability that attacks the spinal cord and causes brain lesions, etc), as well as his extensive research and litigation under Title II of the ADA that he could readily qualify as class counsel for class actions involving disabled class members.

On the other hand, I have searched for and/or been forced to hire attorneys that I really could not recommend for representing a disabled person in any type of lawsuit, even if it were a suit in their board certified area of specialty. Example, hypothetical cruise ship admiralty accident, large cruise ship, giving rise to class action, and a percentage of class members are disabled (remember Spector v. Norwegian Cruise Lines, inaccessible cruise ship?). Disabled class member who uses speech recognition software in lieu of having to be provide interpreter under Federal Court Interpreters Act wants to opt out. Class action counsel is licensed by the Florida Bar and has experience in admiralty; my firsthand person experience is as follows: Attorney #1 says admiralty claim is a "disability case" and a "disability lawyer" is needed solely by virtue of a participant needing reasonable accommodation. Attorney #2 limits representation to the admiralty claim, disavowing the need to reasonably accommodate the disabled, and without any recognition whatsoever that to enable a disabled person to meaningfully participate in an admiralty action the disability accomodations must be provided.

I cannot agree that an attorney who is unfamiliar with the accomodation needs of disabled class members can do "a good job" representing them, since they cannot effectively communicate with counsel their desire to opt out.

"'And, wouldn't a class of plaintiffs be poorly served by an attorney who, although sharing the same physical disability or ethnic characteristics as the class he or she represents, can't draft a decent brief in support of class certification or in opposition to the defendant's motion for summary judgment, or who can't take a decent deposition to develop the facts needed to prove the case, or who gets tongue-tied before a judge or jury?'"

Now here's where I really have a BIG problem with your opinion and these remarks would make any qualified individual with a disability who can meet the essential functions of an attorney go berserk. What makes you presume a qualified individual with a disability attorney cannot "draft a decent brief in support of class certification" or "in opposition to the defendant's motion for summary judgment" or "can't take a decent deposition to develop the facts needed to prove the case" or "gets tongue-tied before a judge or jury"? Is it stereotypes you learned in grade school or from other lawyers? Do you have some objective facts upon which you base your conclusions? Or is this just conjecture based on prejudice?

I will take each of these in turn, since

I. to begin with you did not say (1) exactly by what tasks a person needs to do to "draft a brief" that a disabled person cannot do, or (2) what tasks or skills or education a disabled person lacks to "draft" a "decent" brief. I will give you an example how this inaccurate assumption that no disabled people can meet the essential functions of a lawyer can go all wrong. Example, Large Florida Law Firm hires disabled person M based on resume showing the person qualified by an ABA-accredited J.D. degree, plus 14 years experience as a law clerk to meet the essential functions of drafting "pleadings, complaints, memorandums, and correspondence." Upon the disabled person informing Large Law Firm she does not manually keyboard as a method to place the written pleadings, etc in written format, but rather requires reasonable accommodation in the nature of technology or a device (speech recognition software and a quiet work place so as not to allow the microphone to pick up background noise), Large Law Firm (without a demonstration how speech recognition works), immediately teminates empployment and prays to God publicly in fnt of other people in their lobby someone else will hire the disabled person because they are not going to). Large Law Firm violates the ADA because although disabled person M cannot write squat by the manual keyboarding method ("without" reasonable accommodations), disabled person M passed the California Bar Examination and topped brief drafting writing assignments with a high level of skill and competency "with" provision of her speech recognition software.

So, you see you assumption that all disabled people cannot draft decent briefs can readily be defeated in and is capable of resounding defeat by evidentiary hearing in almost any court.

II. Your assumption a qualified individual with a disability cannot draft a "decent" brief "in support of class certification" or "in opposition to the defendant's motion for summary judgment" presumes disabled people are incapable of graduating an ABA-accredited law school, and are incapable of understanding how to do the legal research and present an argument to support class certification or manuever the intracacies of a motion for summary judgment in a manner to succeed (win on the issue or motion). This is really Neanderthal, because it implies all disabled people lack capacity to receive information and understand what that information means in a realistic way. This is right out of the 1960s when Ovar Lovaas (circa 1965) believed autistics should have their shoes removed, bottoms of their feet lubricated with conductive gel, and electroshocked (tortured) through their bare feet for NOT READING FAST ENOUGH. I have news for you (and you can read about it right in the DSM-IV, an authoritative scientific text accepted in almost any court), some disabled people receive information perfectly well, they just have expressive language impairments and need accommodations to tell other people how much complex argument they know. It isn't rocket science.

III. Your assumption a qualified individual with a disability cannot "can't take a decent deposition to develop the facts needed to prove the case" is another compound presumption lacking a basis in fact or law. "Can't take a decent deposition" assumes the qualified individual with a disability cannot meet the essential functions of oral deposition questioning, does not know what deposition questions are relevant, cannot engage a methodology to prepare in advance of the deposition for the questions to ask (including reviewing the evidence obtained prior to the deposition), cannot think of his or her feet to ask ad hoc deposition questions that come up arising from the deponent's previous responses, and cannot ascertain what is a fact, what is fiction, and the difference between fact and law. Oh, and it also assumes disabled people cannot pass an Evidence class and figure out the difference between admissible evidence and that which is not (hearsay).

This is almost laughable, and disproven by volumes of ADA cases. Qualified individuals with disabilities certainly can meet the essential functions to practice law! Do you want a demonstration? And for a person who uses speech recognition software, common sense should tell you that the person has to speak to the microphone to have the computer transpate her speaking to written formats BECAUSE THE PERSON SPEAKS VERY WELL. However, some disabled people do require a companion to speech recognition (where the organization of the argument is done by visually viewing text), in the nature of Real-time transcription (or captioning) to organize and stay on focus of the topic in certain oral tasks, depositions, hearings, trials, appellate argument longer than 15 minutes. So how is this a BIG DEAL?????

Do you disavow that people in wheelchairs need ramps to enter the courthouse in order to meaningfully participate in a lawsuit? Or that some judges who are deaf or hearing impaired require coclear implants to judge a lawsuit? Or that some lawyers who are blind need braille or screen readers to perform their jobs? How exactly does the reasonable accommodation that enables a disabled person to meet the essential functions necessary to practice law make that person unable to do so? Please explain.

IV. Some disabled people, like my husband, David F. Petrano, Esq. (FBN 624586) stutter, if that is what you mean by a class action counsel is not qualified is he or she "gets tongue-tied before a judge or jury." I still do not know how this makes a disabled perosn not qualified, since as you can verify for yourself on The Florida Bar web site, the Florida Board of Bar Examiners, after hearing my husband stutter, qualified him, and he became licensed to practice law. If you think a disabled person who stutters would somehow be iineffective, I can assure you my husband is the most charming questioner I have ever met, can elicit the desired response out of almost anyone, can deal effectively with people form all walks of life (he was a barber for decades before going to law school), and he was the one who ferreted out perjury by a defense expert witness over his maritime licensure (United States District Court Judge James D. Whittemore recognized the perjury and called it "outrageous") resulting in stating a meritorious salvage claim.

But if you're complaining that you personally find disabled people distasteful because they "gets tongue-tied before a judge or jury," alls I can say is Congress has already decided by enacting the Americans With Disabilities Act, Rehabilitation Act of 1973, and Federal Courts Interpreters Act, you are just going to have to deal with it.

There are a lot of people I don't like. But the fact I don't like them does not make them incompetent to practice law, not by a long shot.
6.28.2006 9:24pm
Mike Lorrey (mail) (www):
How would the affirmative action fanatics feel if the whole reason law firms hired minority lawyers was so they could represent minority clients? How is that sort of segregation, enforced by affirmative action, helping things?
6.28.2006 11:29pm
Mary Katherine Day-Petrano (mail):
Well, Mike Lorrey, I would not characterize myself as an affirmative action fanatic, but I do believe in it where it is needed to remedy the effects of past discrimination, such as people with disabilities. But if I were licensed and a law firm hired me, I would not be satisfied to represent only minority clients. I would represent such clients because I believe there is a lack of adequate representation for the disabled, since the State Bars, at least Florida and California, seem to deliberately go about not educating and training sufficient lawyers to take on disability antidiscrimination cases. Perhaps they think if they do this training, they themselves will be sued, but then again I would think a compliant State Bar would not have anything to be sued for. I would just feel an obligation to help the disabled. However, I have other interests and there are others kinds of cases I would want to be assigned to. Like certain bankruptcies, I like Chapter 11s and bankruptcy jurisdictional problems. I am also very interested in genetic patents, though I do not think I have enough official scientific background to qualify for licensure as a patent attorney. I like some areas of admiralty, as well. I would really like to do attorney discipline and bar admission cases. I like appellate work, state and federal, and trial practice in federal courts. If the United States Supreme Court could ever see their way to lightening up with some accommodations for qualified disabled lawyers (and bar applicants), I would really like to do Supreme Court practice. I am not too keen on criminal, but white collar criminal and the whole NSA thing fascinates me. And I would like to be the best equestrian lawyer in the major racing and hunter-jumper states (NY, KY, FL, VA, GA, CA). So I would not consider affirmative action to increase the numbers of qualified disabled lawyers/bar applicants (including myself) as "segregation," but rather equality of opportunity long past due. Why is everyone so afraid of disabled lawyers, or think we do not have the same hopes, dreams, and desire to achieve as others? It is amazing.
6.29.2006 12:56am
Christopher Cooke (mail):
Mary I was not implying that a disabled attorney couldn't draft a good brief or take a good deposition, I was just suggesting that these skills might be more important to me than the attorney's disability if I were the judge responsible for choosing class counsel. I wish you well.
6.29.2006 5:29pm
Mary Katherine Day-Petrano (mail):
CC, isn't it funny you have such grave concerns for good brief drafting, but now have to clarify what you wrote before is not what you meant to convey. I only point this out because inaccuracy is not the flaw alone of the disabled, but shared by many in all walks of life. I do, however, accept what you meant to say if that is what you intended, rather than what it sounded like you said, because disabled people can and do draft good briefs (though some require reasonable accommodations to do so). And it is, wrongly in my opinion, an overwhelming belief among many that the disabled lack competence by virtue solely of their need for certain types of accommodations. I am happy you disavow thinking this way. Thank you for your good wishes.
6.29.2006 7:51pm