The Volokh Conspiracy - "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.

	[David Bernstein, June 27, 2006 at 3:48pm] Trackbacks "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.