A fascinating story unearthed by master ethics sleuth Fred:
In Danville, Va., a customer specifically asked that a Lowe’s delivery be administered by delivery personnel who was not an African American. Marcus Bradley, the black driver assigned to the delivery, was called back to the store, and replaced. When the woman who made the request was interviewed, she said, “I got a right to have whatever I want and that’s it…No, I don’t feel bad about nothing.”
For hiss part, Bradley said that he was surprised that the store didn’t stand up for him, but that he would stay in his job. “I mean I gotta work. I’m going to keep going to work like I’ve always done. But I would think Lowe’s would take it into consideration to think about what they’re doing next time,” he said.
Lowe’s corporate office, when informed about the incident, released a statement that said in part… last week, and they said they’d look into it. Wednesday, we received this statement:
“The situation brought to our attention was troubling and an investigation was immediately undertaken. Under no circumstances should a discriminatory delivery request be honored as it is inconsistent with our diversity and inclusion core values and the request should have been refused. The investigation has concluded and the individuals involved [ that is, the manager who pulled Bradley off the delivery] are no longer with company.”
This is obviously the correct response. This awful woman can refuse to admit anyone into her house she chooses, but she can’t make a company discriminate on her behalf.
Delivery men and hardware chains are different from doctors, lawyer, hospitals and law firms, however. The AMA has held, for example, that where a patient’s irrational racial or ethnic bias against a doctor undermines his trust in his treatment, it is not unethical for the hospital to acceded to his wishes, and may ne unethical for it to force medical personnel on him that might make his recovery less certain. Then there is this, a hypothetical that I have given for years to D.C. lawyers:
Lon is a partner in a large D.C. law firm. He has been given the key job of closing the deal to represent the irascible Horrible old man Bob Gogmagog, founder of Gogmagog’s Grog. If Lon fails, the firm almost certainly will go under.
“Get this client, whatever it takes!” commanded Tina Turner, the senior partner. “He’ll want to make a deal on the spot, so you settle the terms… don’t come running back to us, it will just foul the deal.”
From the moment Gogmagog walked in the door, Lon smelled trouble. “I expect to pay a lot of money, that’s fine,” said the horrible old man. “But I want a lawyer I can relate to, get it? Do you have a good female environmental law specialist?”
“Why, yes,” stuttered Lon. “Minnie Cooper, one of our partners, is the best…”
“Don’t want her!” shouted Gogmagog. “Women have no damn business being lawyers anyway! Besides, don’t think I could trust myself with her, if she’s a looker, if you get my drift. Har! Har! Got any men who can do the job?”
“Well, certainly, uh…I have a background in environmental law, and…”
“GOOD!” yelled Gogmagog. “You’re my man! “
QUESTION : Can Lon accede to Gogmagog’s insistence on a male lawyer?
1. Yes…DC Rule 1.2 requires the attorney to consult the client regarding means.
2. Yes. The client can hire whoever he wants to.
3. No. Not without getting Minnie Cooper’s consent.
4. No. DC Rules forbid it.
5. He can, but he shouldn’t.
The most chosen answers are 2. and 5, and they are both correct. Nothing in the ethics rules requires a firm or a lawyer to accept a client it finds repulsive, though the traditions of the profession dictate that lawyers don’t judge their clients or their objectives. Lawyers exist to provide skilful access to the law, and the client’s objectives, beliefs, motives and attitudes need not be in agreement with the lawyer’s in any way. [ ABA Model Rule 1.2 b: (b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.] Thus the better answer is that a firm can accept the client and provide the client with a lawyer or lawyers that he will feel comfortable working with to achieve his legal objectives. The client’s biases are still his own, and if he doesn’t want a young lawyer, a black lawyer, an old lawyer or a female lawyer and the firm can accommodate him without harming the lawyers he doesn’t want while still serving his needs competently and zealously, then the firm breaches no ethics principles, and no laws, by acceding to the client’s sexist, in this case, demands.
Why is allowing a bigoted or sexist client to reject a qualified minority or female attorney within the scope of legal ethics, and yet Lowe’s doing so justifies firing with cause? The distinction is this: professions in the formal sense exist, selflessly and entirely, to serve the essential needs of human beings as those human beings see them. This even extends, in some cases, to indulging bigotry. If a dying Catholic wanted an Irish priest to deliver last rights, the Church would be unethical, placing the needs and beliefs of others over those of the human being in need, to refuse. In the case of law firm clients, they must work closely with their lawyers, and the firm cannot ethically force them to work with a lawyer they can’t and won’t trust. The lack of a good working relationship may have tangible harm to the client.
The fact that the delivery man isn’t trusted by the racist customer, however, won’t stop the delivery or harm her receipt of what she purchased. She should have been told that her options were to admit the black employee, arrange delivery by another source, or get a refund and take her business elsewhere. Since the store’s duty to the client does not exceed its duty to its employees, the Lowe cannot tolerate discriminatory conduct. Zealous representation, however, means that a lawyer subordinates his or her own beliefs and needs to those of the client.
That’s one reason they are paid more than deliverymen.