Conclusion

As the Fourth Circuit recently noted in Woods, “[i]nvidious discrimination steeped in racial stereotyping is no less corrosive of the achievement of equality than invidious discrimination rooted in other mental states.” While such discrimination can and does occur in the workplace, in business transactions, and in other facets of life, it is particularly pernicious when attorneys as officers of the court perpetuate this type of harm. This article analyzed the implications of attorneys' own implicit biases and how those biases impact their clients, jurors, and the fair administration of justice.

Actionable discrimination is difficult to prove because of the intent standard that the courts apply. But, using a negligence standard for attorneys' actions in and outside of the courtroom could reduce the impact of implicit bias. If attorneys comply with the ABA Model Rule of Professional Conduct that imposes a negligence standard on whether lawyers “reasonably should know” when they are discriminating on the grounds of “race, sex religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status,” the rights of litigants and the responsibilities of officers of the court would better serve the interests of justice.

Professor of Law, Pepperdine University School of Law; J.D. Stanford Law School; A.B cum laude Harvard College.