Klosterman’s Cusp

First, an excuse. I neglected to read Chuck Klosterman’s Ethicist this Sunday, but it wasn’t my fault.  Dr. SJ glommed up the magazine to do the crossword puzzle before I had a chance to look at it, and by the time she finished the puzzle, I was busy cooking bacon with my son for the ride back to Cambridge.  Priorities, right?

When Judge Kopf posted about a letter from a female law student, gently daring the internets to attack, my omission struck hard.  How?  How did I miss this bit of ethicalismisticity from Chuck Klosterman. Because he’s The Ethicisit. The New York Times says so, even if I haven’t always deferred to his judgment when it comes to legal matters.

But given the nature of the query, and some of the subjects which have prominently appeared at SJ recently, I cannot leave this alone (scroll down to the second letter, entitled “If it pleases the court . . . “).

I am a young, female law student who represents indigent clients in criminal matters. I have learned (both from professionals at my school and from studies on subliminal biases) that female attorneys are more likely to be taken seriously if they have straight hair and wear makeup, skirts and heels. This is not a norm I want to perpetuate. However, I know that I have an ethical responsibility to represent my clients to the best of my ability. But do I have to conform to gender norms I find oppressive if there is a chance it will help my client? NAME WITHHELD

No brainer, right? Putting aside the question of what a law student is doing representing indigent clients (who may be good for practice by people not yet competent, but hey, isn’t that what the poor are for), there is only one ethical response: the client comes first.  Your narcissistic, entitled, slacksoisie self-absorption, or as she says, perpetuating the oppression, loses.

What that means, as far as what she should wear or put on her eyes and lips, is worthy of debate, but the ethics are clear.  No, you don’t have to dress like a Barbie Doll, but asserting your “right” to fight gender norms at your client’s expense is off the table.

Judge Kopf, on the other hand, picked up on ol’ Chuck’s response, which begins as usual by his rushing off a cliff:

I would agree that you have an ethical responsibility to represent your clients to the fullest extent of your potential. But there are limits to what you are obligated to do, and this situation falls right on the cusp of that territory.

I wonder how much the Times pays Chuck, because there would be a bit of Schadenfreude if he found himself defended by a public defender not of his choosing who had a gender norm problem.  But I digress.

What is more important to you: the representation of your client or your discomfort with antiquated gender norms? Almost all occupations require the mild subjugation of certain personal freedoms. If you believe that dressing in a specific manner would serve your client most effectively, your reasons for not doing so must matter more than the consequences of possibly losing a case for reasons unrelated to actual evidence.

Certainly, “mild subjugation” is better than getting your ass beat in the hallway behind the courtroom.  But to suggest that this is “subjugation” at all is to succumb to the fashionable notion that it’s “all about me.”  This isn’t subjugation. This is a choice we make when we assume the responsibility for other people’s lives. We wear a uniform.  Other nations wear cooler uniforms, some with wigs, but we wear a uniform too.

Antiquated? Perhaps, but there is something about ripped jeans and flip-flops that undermines the gravity of the situation.  Why not wear a bathing suit, if that’s what makes you feel good about yourself?  After all, isn’t it all about what makes you feel good about yourself?

But there is a more nefarious error in Klosterman’s ethical advice, when he suggests that

your reasons for not doing so must matter more than the consequences of possibly losing a case for reasons unrelated to actual evidence.

That is not an option. That is not an excuse or explanation or rationalization. That, Chuck, is manifestly unethical.  No matter how  narcissistic and entitled someone may feel, they do not get to act in their own interest at the expense of their clients’.  Never. Under no circumstances. This is not a choice available to them.

So dear law student who doesn’t want to perpetuate the oppression of gender norms by putting the interests of your indigent defendants ahead of your own, I offer you this solution. Do document review. You are unfit for anything else.

As for Chuck Klosterman, nice going.  You may not have a clue about legal ethics, but you are consistent.  And don’t let that fear of an absurdly wrong response to a question of legal ethics cause you to lose any sleep.  Judge Kopf is here to straighten it out. Me too, even if I show up late.


40 thoughts on “Klosterman’s Cusp

  1. Jake DiMare

    Perhaps Chuck is talking about capital E ethics, and not the practical reality a lawyer must observe?

    If we’re open to that conversation I think true justice would be judges and juries only making decisions based on the facts of and the merits of the case presented, and not on the appearance of the lawyer delivering the facts. Wouldn’t a Criminal Defense Lawyer desire for justice, at it’s highest calling, to be free of all bias and preconceived notion?

    Impossible, you say? You may be right, though I am at a loss to come up with an example of where it has been tried. (forgive the pun).

    1. SHG Post author

      No. The call for cases to be decided “on the facts” reflects a simplistic understanding of the word. “Facts” are whatever a jury/judge says they are. What becomes a “fact” is what the finder chooses to believe. which is the end result of everything that happens in the courtroom. In other words, the “facts” of which you speak don’t exist until a jury/judge says they do.

      And criminal defense lawyers do not “desire justice.” We desire to win our client’s cause. That, and nothing else, is our highest calling. I would have thought you would know this by now.

      1. RKTlaw

        “Desire for justice”? That sounds like when people ask me the question about what I do when I “know my client’s guilty”.

        1. SHG Post author

          Forgive Jake. I think he was having an acid flashback from the 60’s. I should have given him a trigger warning.

  2. Brett Middleton

    No argument from me on your position here. But suddenly I find myself wondering about the first woman to struggle against gender norms by becoming an attorney. Might this not have been harmful to the interests of her clients? If her clients would have been better off with male representation, then wasn’t it unethical for her to even enter the profession?

  3. Richard G. Kopf


    This is directed at Jake.

    Forgive me, my friend, but what the hell is capital “E” ethics? And where (or from what higher being) does it come from?

    All the best.


  4. TM

    Absolutely agree that attorneys, especially female attorneys, need to stop viewing their courtroom attire as anything other than a uniform. Court is not the opportunity to “express yourself”. Court is the opportunity to argue on your client’s behalf. If you choose to wear something beyond the uniform, beyond what is expected of you, then you are spending too much of your precious time before the judge calling attention to your inability to understand and follow proscribed norms and rules.

    During my time in NYC, I clerked for two stuffy old judges, both of whom had in their written courtroom rules that female attorneys must wear skirt suits. One even required pantyhose. Pants were deemed inappropriate attire for women. Attorneys who felt they could express themselves by wearing something beyond the written requirements were treated as though they either could not read or that they could not follow the rules. Neither of which gives the client too much confidence in the attorney’s abilities. Clients don’t take too kindly to watching their attorney get reprimanded like a child for dressing inappropriately.

    1. SHG Post author

      When a judge feels so strongly that women need to wear panty hose that he puts it in his rules, he’s got other issues. Just sayin’.

  5. RRose

    I do not think I have ever seen a woman attorney in a skirt, 3 1/2 heels, floppy neck-bow thing, and garishly painted face outside a civil federal trial. Sensible pantsuits, comfortable shoes, and short haircuts are pretty ubiquitous. Somehow, they manage to win regardless. My advice would be to tell the young law student that spending more time thinking about her cases will end up advantaging her clients more than nearly any amount of time thinking about how she looks.

  6. Marc R

    *walking back to holding cell after plea conference*

    I have good news and bad news…the good news is these new pants from banana republic were a hit with the clerk and bailiff… bad news…they won’t go under 30 years for your misdemeanor pot charge.

  7. Bretagne

    Strongly disagree that this woman should feel compelled to wear skirts rather than (otherwise appropriate) pant suits. Yes, she must dress appropriately professional, but that doesn’t mean she must straighten her hair or wear skirt suits.

    In law school, I too was advised to wear skirted suits because “most judges and lawyers public are old white men, and most of them prefer that women attorneys wear skirts.” At that moment, I decided that what “most” male lawyers desire is none of my damn problem, and I wouldn’t cow-tow to those antiquated standards, even if to rebel would be to my own detriment. If we don’t stand up to systemic mysogyny, how will anything ever change?

    1. SHG Post author

      Stand up to “systemic misogyny” (This is misogyny? How wonderful that you have no real problems) all you want on your own dime. Just not when the price is another person’s life. And nobody said anything about dresses. But if that’s what it takes, that’s what you wear. Your hurt feelings about misogyny don’t trump another person’s life. If you can’t handle that, find a different practice area like document review.

      1. RKTlaw

        The tell-tale phrase is that it would not be to “your” detriment to “cowtow” (sic) (I believe it’s “kowtow”), but it might certainly be to your client’s detriment. Which, of course, is supposed to be the point.

        1. SHG Post author

          That seems to be the clear dividing line. Even if they pay lip service to the client, the real concern is all about them. Narcissism is a harsh mistress.

  8. John S.

    Slightly tongue in cheek, but where would you fall on this if a prosecutor were to ask the same question?

    1. SHG Post author

      Enlightened self-interest compels me to say that he should wear his finest bow tie and spats. On the other hand, visible sock-garters are probably over the top.

  9. Matthew Stiegler

    You’re out of your mind. She asked about “straight hair and wear makeup, skirts and heels,” and you’re raving on about ripped jeans and flip-flops and “narcissistic, entitled, slacksoisie self-absorption?” How is that any different than me deciding not to wear a flag lapel pin even if I think I’m “more likely to be taken seriously” with one? Does that make me fit only for document review, too? Or is the ranting just for women’s choices?

    1. SHG Post author

      First, read more carefully. She doesn’t ask about “straight hair and wear makeup, skirts and heels,” but asserts that “I have learned (both from professionals at my school and from studies on subliminal biases) that female attorneys are more likely to be taken seriously” if that’s how they appear. No moderately intelligent person would take that so literally as to think this means that curley-haired women need not apply.

      Second, your analogy with a lapel pin sucks.

      Third, her question was “But do I have to conform to gender norms I find oppressive if there is a chance it will help my client?” The answer has nothing to do with gender. The same would be true of a man who wanted to go tieless. Just because the questioner put gender in the mix as to her motivation doesn’t change the lawyer’s ethical duties whatsoever.

      1. Matthew Stiegler

        I don’t know any other way to read her question other than to be asking whether she is ethically required to wear make-up, a skirt instead of a pants-suit, and high heels instead of flats. The fact that she is asking that question, in my opinion, does not make her an appropriate target for your overheated post.

        And it’s your no-tie analogy that fails. Not wearing a tie is not dressing professionally. The same is not true about a woman wearing a pants suit and non-heeled shoes. That is professional dress (just like a men’s suit minus flag lapel pin, you’ll note). If you think women can only dress professionally if they have lipstick and heels and show a little leg, you’re further gone than I thought.

        And I think these sorts of debates have everything to do with gender. Women are the targets for this sort of nonsense, not men.

        1. SHG Post author

          Did you not read this in the OP?

          What that means, as far as what she should wear or put on her eyes and lips, is worthy of debate, but the ethics are clear. No, you don’t have to dress like a Barbie Doll, but asserting your “right” to fight gender norms at your client’s expense is off the table.

          What part of this eludes you?

          And as for your “Women are the targets for this sort of nonsense, not men,” you’re just plain wrong.

          1. Rick Horowitz

            I am saddened that after wading through all of this, I never found the post on “Why it’s wrong to wear your ‘I’m with Stupid’ t-shirt to court.”

            1. SHG Post author

              Now I feel bad about disappointing you. But you have to admit, it was funny, no?

              Funnier still is the silence when people who think I engage in the same BS arguments they do, and then find out that I actually do what I say I do. They want to play gotcha with me, only to learn that they’re shooting blanks. And lack the integrity to apologize for their self-serving assumptions. That’s funny too, no?

  10. Peter H

    One of the things I love about doing patent law is that I am working today in shorts and a T-shirt. Everything with the USPTO is done on paper (e-filed) or via telephone on rare occasion for less important matters.

    1. SHG Post author

      When I was a young lawyer, I wore a white shirt and suit every day, whether I was in court or not. But then, I was a baby, and wanted to be taken seriously, so I tried to make myself appear more “lawyerish.” Now that I’m old, I can wear anything I please in the office. But I still dress in uniform to go to court. Always.

  11. Edward Gemmer

    I don’t agree. One does have a duty to clients, but to particular clients. A study could conceivably find that juries are more likely to give a not guilty verdict if the defense attorney is white. Does this mean the defense bar needs to push for fewer minority lawyers? I may feel people take me more seriously when my beard is short. Does this mean I am unethical if I grow my beard long? Such a thought is silly. Beards and makeup are not grounds for ethical queries.

    1. SHG Post author

      Explain how silly it is to the guy who’s facing life in prison. His life is on the line, but your only concern is your entitlement to do what you want? It’s not your call to make.

      You mouth the mantra, “One does have a duty to clients, but to particular clients.” You write that as if it’s trivial, and qualify it as if some clients are worth it and others are dog meat? You have a duty to all clients. Every single one. And it’s a duty you better take with the utmost seriousness. Every single client deserves no less.

      And lest you think me disingenuous, I was retained to defend a client in Kentucky. After a few appearances, I advised my client that my inability to speak like a local and New York ways would be a detriment to his case, and I advised him to retain another lawyer from Kentucky to try the case. This wasn’t because I thought he was a better lawyer than I was, but because my being the defendant’s lawyer, as an out-of-towner, would work to his detriment. It’s all about the client. It’s always about the client.

      You think that’s silly? I don’t. And you can bet your beard that no defendant would knowingly risk prison for your entitlement to facial hair.

  12. Jane S.

    Guys, Stop with the oversized attention to women’s dress in the courtroom. Women who never wear make up or skirts may be as uncomfortable in such attire as you would be, Sirs. But most of us have no problem conforming to the standard uniform of a dark suit.

    Why the vitriol over a law student’s desire to wear pants? Reminiscent of the rancor over bloomers in the mid 19th century, the heart of the matter is gender roles and not duty to a client.

    1. SHG Post author

      No, the heart of the matter is duty to a client, not gender roles. It wouldn’t matter if it was a man or woman, and it isn’t about a woman wearing pants or a dress. That Klosterman’s question came from a woman is the only reason why a woman is the subject of discussion.

      Had it come from a man who refused to be a slave to gender roles, wear a suit jacket, wear a tie, wear a dress, wear those stupid black sneakers as if he thought nobody would notice that he wasn’t wearing shoes, the answer would be the same. That’s because it’s entirely about duty to client.

      If she wants to wear a Pikachu costume on her own time, who cares. But in court, she dresses for the job, not her gender politics.

      1. Jane S.

        Are those stupid black sneakers worthy of a blog post? And so many comments? As you say, the interesting bit is in the gender politics.

            1. SHG Post author

              This isn’t vitriol. You mistook this for tea time at the Dorchester? While I can’t control who or how many people comment, perhaps the lack of controversy is that the targets of the post can take criticism without trying to turn it into a gender issue.

              And don’t think you get away that easy, with your “Yes, but.” That’s a notably passive-aggressive reaction. Come on. Say it…say it…

              Edit: And an hour later…

  13. Charlesmorrison

    As I understand the context of the specific question, no one is forcing her to dress a certain way. Rather it’s an observation she’s made and coincides with the beliefs of others whose opinion she trusts.

    So, use it to your advantage, if you honestly believe it to be true. Doesn’t she want to win? Suck it up, go home, immediately change after you get the acquittal and laugh at the idiots you got over on. Your enlightenment as to the problem you loathe can be a source of power.

    While I seriously question the underlying premise that a skirt vs. pants would truly make any appreciable difference, if she feels differently, then utilize the knowledge. Worrying about the observation itself does no one any good. Paint a banner the next Saturday and march on the courthouse, or write an op ed, or start another group to “educate folks.” Lots of ways to try and correct the “problem.” But honestly believing your client will be disadvantaged by your “choice” forecloses any possibility that you a choice at all.

    Is this really any different than wearing a wedding band, when unmarried, if you feel your credibility in the eyes of the jury may be impacted by that, given the particular facts of the case? Nothing wrong with giving it a shot. Observations and gut senses are what we are supposed to account for. If the court ordered you to wear a wedding ring, then we might have an issue to get stirred up about.

  14. Alex Bunin

    Except for about six months, during the 1980’s when a matching blue jacket and skirt, and droopy bow-tie, was considered a suit for women, I do not recall a standard courtroom female outfit. Looking professional is a matter of style that cannot be reduced to a few necessary items. It goes without saying that one should present an appearance that will be taken seriously. That will always benefit clients. To the extent Mr. Klosterman disagreed that presentation is not essential to defending a client, he is wrong. However, beyond the kind of obviously unprofessional-looking attire like flip-flops and singlets, it would be difficult to create rules for women’s attire that are not sexist (such as mandatory pantyhose) and yet do nothing to benefit clients.

  15. Jon

    If subjugating yourself is to the benefit of the client then you better damn well do it. If you cannot do the job effectively because the dress attire (or whatever form the subjugation takes) sticks in your craw then /you cannot do the job/. When in Rome do as the Romans do or stay out of Rome, no?

    Instead of worrying about the presuming misogyny from what “professionals at my school and…studies on subliminal biases” claim perhaps you should worry about, you know, being a forceful and effective advocate for your client?

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