[The hypothetical is inspired by two recent events I witnessed in the past week.]
Preface: The state requires new bar admittees to take a one-day course covering the basics of practicing law in the jurisdiction—how the courts work, special procedural rules, unique aspects of local practice, horror stories, the works. They must complete the course or they can’t be certified, and the court-ordered series of lectures and presentations is held only once a month.
A company runs the mandatory curriculum under contract to the state, and is required to confirm in writing to the courts that its requirement have been fulfilled. One key requirement is that every attendee must be present for every minute of the presentations, except for brief emergencies, like using the rest rooms. The course administrators carefully monitor attendance. The published description of the course directs that once the course begins, theoretically at 9 am sharp, no late-comers will be admitted.
As you might imagine, missing the session can be quite a hardship, as participants often live and work in other jurisdictions.
The Event: It is 9:08 am on the day of the program, and the introductory video that begins the orientation is almost finished. It consists of interviews with members of the bar about the benefits of practicing in the state, the importance of ethical practice, etc: to say it is not substantive is an understatement. Literally nothing that is said and shown in the video is anything but boilerplate.
A young man, sweating profusely, bursts in the door, looking unhappy and desperate. “I’m sorry I’m sorry!” he babbles. He says that he had to drive up from a neighboring state and had an accident. “Can I still get in?” he pleads.
The male staffer responsible for the session chats briefly with an associate. The program was late starting, and this late arrival will miss nothing if he goes in now. “All right,” the honcho says as the young man heaves a sigh of relief. “I shouldn’t do this, but you haven’t missed anything.” As he goes into the auditorium, one can here the opening remarks of the first speaker, a judge. It is now 9:12 am, and another young man bursts through the door on a dead run. “My crazy cabbie’s been driving me all over the city for an hour!” he shouts. “I flew in last night from Arizona! Please, please, don’t make me do this again…I barely was able to afford this trip.” The administrator is wondering if he had seen the previous guy go into the auditorium. He’s heard this judge’s spiel many times: all that has been missed, to be honest, are a few (lame) jokes. “All right, all right, get in there quick!” he tells the new supplicant. “I’ll finish your paperwork during the break!” The kid looks like he’s going to cry, he’s so relieved.
I’m there, watching this (I’m on the program) and say to the administrator, “I bet this happens every time.” He says, “It does. I know that nobody misses anything that isn’t in the printed materials until 9:15, so it’s a hard stop after that.”
And another late arrival bursts through the door. It’s a bit after 9:14. The staffer has just told me that the final final deadline is 9:15, and it’s not that yet. This poor guy is bleeding through his pants, has a big bruise on his face, and is saying something about a bicycle accident. By the time he gets himself settled—he is told that there is no time to clean up—it’s past 9:16. He starts toward the auditorium door as the other staffer says, “OK, that’s IT,” and starts to take the registration materials and lists away….just a very stressed young African-American woman enters, in plenty of time to see the bicycle rider, who is white, enter the auditorium. I can hear the judge through the open door. He’s still telling jokes, longer this time than usual.
Issues and Observations
1. The young woman was not admitted, and told that she had to come back another month. She too was from out of state. She also had a legitimate-sounding excuse.
- Was that fair to her?
- Should it have mattered that the program had not yet reached a serious stage?
- She was told that 15 minutes was the absolute, unwaivable deadline. That was true, but it was not the deadline the company was contracted and pledged to enforce. That deadline was 9:00 am.
2. Should the explanations used by the latecomers play any part in the decision to allow them in? Why?
- They can’t be checked. There is no hardship policy.
- Moreover, these are lawyers; being late for trial and court proceedings risks serious sanctions. This is the profession they have chosen.
- If it’s the excuses that matter, does that mean that a student who arrives later but with a better sob story should get a pass, while an earlier but still late arrival who says, “I set my alarm clock wrong last night!” gets blocked at the door?
3. I asked the administrator, as an on-the-spot hypothetical for him (ethicists tend to do this—it’s really obnoxious), “What do you think the last woman would do if told her, “you know, they just let in three late registrants minutes before you: all male, one Asian, and the other two white. Just FYI”?
- He said, “Oh, God. I didn’t even notice.”
- Isn’t it good that he didn’t notice?
- Would that help him if the woman complained?
- Would the woman be justified in feeling, from her perspective, that she had been discriminated against on the basis of race or gender?
- If she came back to the administrator, after my revelations, and protested, should she have been allowed into the program?
- What if she didn’t feel that prejudice was involved, but, desperate to complete the course that day, she “played the race card,” anyway, alleging bias. Would that be unethical?
- Why should it matter how she feels?
4. The company has to certify that all of the court’s requirements have been met. Can it?
- Can it argue that the they were met, according to the spirit of the specifications.
- If it so certifies, is the leeway granted to late arrivals (before 9:15) still ethical?
Please consider and discuss.