The Ethics of Decolletage

My Three Commandments of Criminal-Defense Ethics:

I. Thou shalt not break the law.

II. Thou shalt put thine client’s interests above all else.

III. There will be times when (I) and (II) seem to clash; at those times thou shalt consult ethics counsel.

From Judge Richard Kopf, who has recommenced blogging at Hercules and the Umpire, in regard to lawyers wearing short skirts and low-cut blouses in court:

I have three rules that young women lawyers should follow when considering how to dress for court:

1. You can’t win. Men are both pigs and prudes. Get over it.

2. It is not about you. That goes double when you are appearing in front of a jury.

3. Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down.

I’m with the judge, more or less (I think men are only prudes when prudishness either benefits them socially or helps them keep the female competition down), on the first two rules.

But I don’t think there are many women lawyers who don’t already know these things, and the third rule strikes me as patronizing, as though women who dress for effect don’t know exactly what they are doing.

I wear well-tailored suits because a suit that fits well makes a man look better—taller, fitter, a more suitable mate: in short, more attractive. And more attractive people are viewed as more credible.  I know what I’m doing; women—who have been socialized since birth to take care of their appearances since —do as well.

Women who dress to show some skin in court do so for the same reason. As an added bonus, they know that we men—whether opposing counsel, judge, or juror—have difficulty thinking in the presence of pulchritude. It’s effortless razzle-dazzle:

So what about those female law clerks who “seethe and sneer” and call the “really good” woman lawyer “unprofessional” behind her back because she “wears very short skirts and shows lots of her ample chest”? They may be motivated by envy, by the idealistic aspiration that women be treated the same as men in court, or by the secret desire that no woman succeed any more than the least successful. Girls are mean to each other for myriad reasons.

But the motivation doesn’t matter, because the law clerks don’t matter. They are not deciding the client’s case. All that matters is the jury and occasionally the judge. Of course any performer must know her audience—for a chambers conference with a female judge and her female law clerks, the costume might well be different—but if it benefits the client for the male judge and a mostly-male jury to get a flash of boob, then boob must be flashed.

That’s the natural consequence of the second rule, both mine and Judge Kopf’s. Patronizing or not, Kopf’s third rule is nonsense. Just as “it” is “not about you,” it is not about the female law clerks. It is about the client.

Nobody wants to see me in a short skirt—my best assets are above the neckline—but if I knew I could get an edge for my client by wearing a miniskirt and a low-cut blouse, I’d do it without hesitation. Any woman lawyer needs the same attitude, regardless of the backroom nitpicking of the female clerks.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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14 Responses to The Ethics of Decolletage

  1. Turk says:

    But the motivation doesn’t matter, because the law clerks don’t matter. They are not deciding the client’s case. All that matters is the jury and occasionally the judge.

    Why would the emotional response of the law clerks be different than the emotional response of the jurors?

    The clerks matter, the same way any mock jury matters.

    • Mark Bennett says:

      Because (from the CDL perspective) we only need one juror, and that juror may be a man.

      Also, the law clerks are closer to being in competition with the lawyer—similar background, similar education—and women dearly love to pull each other down.

      Finally, law clerks have different sensibilities than any jury I’ve ever tried a case to. Worst mock jury ever.

  2. Miranda Meafor says:

    If I have a matter in front of a certain judge, I wear a skirt. Not a short one, but not pants. And I always wear skirts in front of juries because I’ve seen research showing that both men and women prefer female lawyers to wear skirts.
    But where does that line of thinking end? It might benefit my clients if I got a boob job and dyed my hair blonde but I’m not going to do it. Does that make me less dedicated to my clients?

    • Mark Bennett says:

      All of the criticism I’ve seen of this post rephrases my point as, “if it might help, do it.”

      You’ll notice that I didn’t say “might.” I said, “if I knew I could get an edge for my client by wearing a miniskirt and a low-cut blouse, I’d do it without hesitation.” I’m not going to do it just because it might help my client for me to do so—which it might (if the jury’s leader has a fetish for cross-dressing lawyers of a certain age).

      Knowing you can get an edge for the client is a high hurdle; it gives the lawyer plenty of discretion to say, “it might help, it might hurt.” And maybe the clerks are a barometer of whether it will help or hurt—though I would take their chattering with a grain of salt, since women do their best to drag those of their own class down in ways that men don’t.

      The lesson, for those who aren’t bent on outrage, should be that gossiping clerks are not the audience that ultimately matters. There are ethical reasons for dressing for the jury; there are no such reasons for dressing for the clerks.

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