WHAT SHOULD I DO IF AN ATTORNEY DISCRIMINATED AGAINST ME?

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Across the board, including in the employment, healthcare, education, and other contexts,  there appears to be a rise in disparate treatment based on protected characteristics.  When this happens, it can be hard to know where to turn.  That is especially true if someone suspects that the disparate treatment has occurred where an attorney is involved.  If someone has experienced disparate treatment by an attorney, they might consider the following.

In California, attorneys must follow California’s Rules of Professional Conduct.  Rule 8.4.1(a) states that in “representing a client, or in terminating or refusing to accept the representation of any client, a lawyer shall not: (1) unlawfully harass or unlawfully discriminate against any persons on the basis of any protected characteristic; or (2) unlawfully retaliate against persons.”

Additionally, Rule 8.4.1(b) further states that in “relation to a law firm’s operations, a lawyer shall not: (1) on the basis of any protected characteristic, (i) unlawfully discriminate or knowingly permit unlawful discrimination; (ii) unlawfully harass or knowingly permit the unlawful harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract; (iii) unlawfully refuse to hire or employ a person, or refuse to select a person for a training program leading to employment, or bar or discharge a person from employment, or discriminate against a person in compensation or in terms, conditions, or privileges of employment; or (2) unlawfully retaliate against persons.”

Significantly, “protected characteristics means race, religious creed, color, national origin, ancestry, physical disability, mental disability, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived.”

For more context, this rule can be read in conjunction with the Editor’s Note presented alongside the rule, as well as California case law.  The Editor’s Note states that conduct that violates Rule 8.4.1 “undermines confidence in the legal profession and our legal system and is contrary to the fundamental principle that all people are created equal.”  Accordingly, courts may not hesitate to exercise their authority to address attorney misconduct. 

For example, in Martinez v. O’Hara, 32 Cal. App. 5th 853, 858 (2019), a case which predated Rule 8.1.4, an attorney referred to a female judicial officer in a biased manner.  The court determined that “gender bias by an attorney appearing before us will not be tolerated, period.”  The court reported the attorney to the State Bar and further noted that the attorney’s conduct “would have constituted a violation” of Rule 8.4.1, had the rule been in effect at the time the attorney used the term.

Bias and discrimination are always unacceptable.  As to the realm of legal services, individuals have the right to seek and obtain representation free of unlawful discrimination or harassment.  If it appears that an attorney has engaged in bias or discrimination, such attorney misconduct can be reported to the State Bar of California. Any individual considering legal recourse should consult a qualified attorney who can evaluate the applicable laws, relevant legal developments, and specific facts of a given case.

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