One hopes that judges will scrutinize class action settlement proposals closely. It's not clear, however, that scrutiny of the racial and sexual composition of the law firms should be part of that scrutiny.
In an order signed this week, U.S. District Court Judge Harold Baer (S.D.N.Y.) required two firms serving as co-lead counsel in a securities class action to "make every effort" to assign at least one minority and one woman to the case. "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," wrote the judge.
Baer had himself appointed these same firms to lead the case two years ago.
According to the American Lawyer, judge Baer has made supporting diversity a priority. Indeed, his order references a ruling in another case that co-lead counsel must assign one woman and one minority lawyer to the case.
If the lawyers' pleadings are insufficient in their representation of the class, a judge should properly intervene. But is 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? 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?