We’ve come a long way from the days when federal courts issued orders banning racial discrimination. Now federal judges hand down orders mandating, or at least encouraging, race-based discrimination.

As reported in the American Lawyer, earlier this week Judge Harold Baer (S.D.N.Y.) issued an unusual order. On Monday, Judge Baer directed two firms serving as lead counsel in a securities class action to “make every effort” to staff the case with at least one minority and one woman:

ORDERED that Co-Lead Counsel, Robbins Geller Rudman & Dowd LLP and Labaton Sucharow LLP, shall make every effort to assign to this matter at least one minority lawyer and one woman lawyer with requisite experience….

If federal judges can run school districts and prison systems, law firms should be a piece of cake, right?

Here’s Judge Baer’s justification:

This proposed class includes thousands of participants, both male and female, arguably from diverse backgrounds, and it is therefore important to all concerned that there is evidence of diversity, in terms of race and gender, in the class counsel I appoint.

Judge Baer’s reasoning could apply to pretty much any sizable class action. This case is a securities class action against an apparel company; it doesn’t involve racial or gender discrimination claims. (In fact, defendant Gildan Activewear seems quite supportive of racial and gender diversity — check out the Benetton-esque models on their website.)

One reader who drew this order to our attention, a Biglaw partner who represents defendants in securities cases, wondered:

What happens if the plaintiffs’ firms reassign a female or minority lawyer to work to comply with the judge’s order, and it turns out to be a less attractive assignment? Does the lawyer get to sue the judge as well as the law firm?

Good question. And here are some more, courtesy of Michael Krauss over at Point of Law:

[I]s Judge Baer of the view that only lawyers of the same race and sex as class members can “represent” them? In a securities class action? Why is that so?

Roger Clegg, writing over at The Corner, offers this answer: “If I were a class member here, I think I’d want the best lawyer available, regardless of race, ethnicity, or sex. But maybe that’s just me.”

More questions from Krauss:

Presumably Judge Baer is not multi-sexual and is perhaps not multi-racial; yet presumably he can nonetheless decide cases impartially. Is Judge Baer making affirmative action a pre-requisite for appearances in his court? Perhaps he has clerks of different races and sexes? If so, is he implying that judges whose chambers are not “diverse” are incapable of rendering justice?

Judge Baer, pictured at right, doesn’t look very “diverse.” But he once was nominated as a federal judicial hottie.

Alas, His Honor’s ordering of race-driven staffing practices strikes me as, to quote Paris Hilton, “so not hot.”

P.S. If companies want to encourage racial or gender diversity by taking law firm demographics into account when hiring outside counsel, as many do, that’s their prerogative — and it may very well be a laudable effort to encourage diversity in the legal profession. But a private actor using its pocketbook to create incentives for diversity is quite different from a federal judge ordering firms to staff a particular case with minorities.

P.P.S. I use the singular “me” in this post rather than “we,” since I suspect my colleague Elie Mystal might feel differently about this case.

Judge Orders Plaintiffs Firms to Add Minorities and Women to Case [American Lawyer]
Judge-Mandated Racial Quotas For Plaintiffs’ Law Firms [Point of Law]
Political Correctness Comes to Securities Class Actions [The Corner / National Review Online]


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