NEW YORK COUNTY LAWYERS’ ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 688
TOPIC: ATTIRE; ADMINISTRATION OF JUSTICE
DIGEST: THE CODE DOES NOT PROHIBIT A FEMALE ATTORNEY FROM WEARING AN APPROPRIATELY TAILORED PANTS OUTFIT IN A COURT APPEARANCE.
CODE: DR 1-102(A)(3) & (5), DR 7-106(C)(6), EC 7-19, EC 7- 20, EC 7-34, EC 7-36, EC 8-7, Canon 9
May a female lawyer wear appropriately tailored pant suits or other pant-based outfits in a court appearance?
We have been asked whether female lawyers may wear appropriately tailored pants in a court appearance, and have been told that judges in this state have remarked negatively in open court on the attire of women lawyers appearing before them.
The purpose of this Committee is to give opinions on the propriety of proposed conduct under the Code of Professional Responsibility. We do not consider ourselves to be arbiters of taste or fashion. Lawyers, according to EC 8-7, should be persons of integrity, professional skill and dedication to the improvement of the legal system. Sartorial skill is not part of the job description.
Similarly, the interpretation of any court rules that may apply to this subject is a question of law that is beyond our jurisdiction. We note, however, that judges have some degree of latitude to regulate the conduct of lawyers in their courtrooms. People ex rel, Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487, which is supported by the power to cite for contempt. See also EC 7-20 (a tribunal must be aided by rules appropriate to an effective and dignified process). Finally, equality of attire in the courtroom also could be deemed a constitutional question. Questions of constitutionality are questions of law, and, as such, are likewise beyond the scope of our jurisdiction.
The physical appearance of lawyers is not a subject directly covered in the Code. Although appearance is mentioned in Canon 9, it is the appearance of professional impropriety, not the lawyer’s outward aspect or image with which it is concerned. As one commentator has noted, “the rules on dress are strictly a matter of custom and very seldom articulated.” 61:1341 ABA/BNA Lawyers’ Manual on Professional Conduct at 7.
Our analysis therefore begins with DR 1-102(A), which defines professional misconduct. Although there are seven subsections to this disciplinary rule, we believe only three are arguably relevant. The wearing of pants in the courtroom by a woman lawyer would violate this section only if it (a) violated a disciplinary rule, (b) were prejudicial to the administration of justice, or (c) adversely reflected on the lawyer’s fitness to practice Jaw. Since we do not believe fitness to practice law is affected by clothing, we will concentrate on the first two elements.
As noted above, there is no disciplinary rule that directly covers the subject of dress. DR 7-106(C)(6) states that, in appearing before a tribunal, a lawyer may not engage in undignified or discourteous conduct which is degrading to the tribunal. Similarly, EC 7-36 urges lawyers to be respectful, courteous and above-board in relations with a judge, and enjoins conduct that offends the dignity and decorum of proceedings.
Taking DR 7-106(C)(6) as our guide, we learn only that a lawyer’s clothing should be dignified and respectful. Women’s pants, like men’s, run the gamut from sloppy through casual to formal. While some no doubt would fail to qualify as dignified and respectful, we are equally certain that a variety of “pant suits” and pants with appropriate blouses, jackets or other tops are appropriately dignified and respectful. Indeed, women’s pants have become an accepted mode of dress in many places of business and on formal social occasions.
There are several court opinions which discuss the attire of lawyers in terms resembling the language of DR 7-106(C)(6). For example, in Peck v. Stone, 32 A.D.2d 506, 304 N.Y.S.2d 881 (1969), the issue was whether a judge had abused his discretion in prohibiting a female attorney from appearing in his court in a “mini-skirt”. The Appellate Division commented that the lawyer’s appearance had not created a distraction or in any manner disrupted the ordinary proceedings of the court. Neither was it so immodest or revealing as to shock one’s sense of propriety:
[T]he test to be applied is not what the Court personally thinks, but whether there is a reasonable basis for the determination made. Whatever may be one’s personal judgment as to the propriety of petitioner’s dress, we are compelled to conclude that it has become an accepted mode of dress, not only in places of business or recreation, but, to the consternation of some, in places of worship.”
The Appellate Division concluded that any regulation imposed upon attorneys must be based upon factual conditions which leave no doubt that the proscribed conduct will result in a disrespect for order and an impairment in the administration of justice.” See also La Rocca v. Lane, 37 N.Y.2d 575, 376 N.Y.S.2d 93 (1975)(The lawyer is subject to the regulation of the judge in matters of attire when that regulation is reasonably related to the preservation of order and decorum of the courtroom, the protection of the rights of parties and witnesses, and generally to the furtherance of the administration of justice.)
A court in our neighboring state of New Jersey has addressed the question of pants in the courtroom. In Matter of De Carlo, 141 N.J. Super. 42, 357 A.2d 273 (1976), the trial judge had taken offense when a female lawyer appeared before him in gray wool slacks, a matching grey sweater and green open-collared blouse. The appellate court reversed the contempt order, on the grounds that this outfit could not be fairly labeled “disruptive, distractive or depreciative of the solemnity of the judicial process.”
We find it difficult to see how an appropriately tailored pants outfit could diminish the order and decorum of the tribunal, affect the rights of parties or witnesses, or impair the administration of justice. Cf. EC 7-26, which discusses impairment of the proper administration of justice in terms of suppressing evidence or advising a witness to leave the jurisdiction so as to be unavailable to testify; EC 7-19, which discusses safeguarding the impartiality essential to the judicial process in terms of extrajudicial communications with members of the jury panel; EC 7-34, which contains a similar discussion about bribing the judge.
The Code of Professional Responsibility does not prohibit a female lawyer from wearing appropriately tailored pant suits or other pant-based outfits in a court appearance.
November 6, 1991