Lawyers with Bias

The brain relies on shortcuts. It forms quick associations from what it has seen, heard, and been told, often without our noticing. Those mental reflexes help us get through the day, but they can also shape whom we hire, how we evaluate a colleague's work, what we charge a defendant with, and how long a sentence we impose. Lawyers and judges are not immune.

In this TalksOnLaw interview, Joel Cohen sits down with Paulette Brown, the first woman of color to serve as President of the American Bar Association, to examine implicit bias in the legal profession: what it is, how it shows up in law firms, courtrooms, and law schools, and what individual lawyers can do about it.

What Implicit Bias Is

Brown describes implicit bias as associations that operate without our awareness and influence decisions we believe are neutral. They form early and are reinforced by culture and the media. She recalls childhood Westerns in which the good guys rode white horses and the bad guys rode black ones. Exposure shapes expectations too. After spending time in her courtroom, where every judge he met was a woman, her young nephew was surprised to meet a male judge. When decision-makers all come from the same background, Brown says, decisions suffer. She cites Justice Sandra Day O'Connor's reflection that Justice Thurgood Marshall's presence broadened her own thinking.

Confirmation Bias on the Bench

Confirmation bias leads people to notice what fits what they already believe. As ABA President, Brown commissioned implicit bias training videos for judges, prosecutors, and public defenders, in which judges spoke candidly about their own biases. One Black judge, accused of bias by a white defendant, reviewed his sentencing record and found the opposite of what he expected: he had been sentencing Black defendants more harshly.

Where the Profession Stands

Brown notes that progress for women, people of color, LGBTQ lawyers, and lawyers with disabilities, including invisible disabilities, has been modest. To understand how the profession got there, she says, we have to look "upstream." People gravitate toward others like themselves. At her trainings, attendees sort themselves by department when choosing where to sit. And people with unearned advantages often assume everyone "started on third base."

"What Lawyer Inspired You?"

Brown grew up in Baltimore, attended segregated schools until tenth grade, and was the first in her family to attend college. When she helped with on-campus recruiting, she found that the firm's interview form asked what lawyer had influenced the candidate to go to law school. The well-meaning interviewer, raised by doctors, could not imagine a student who had never known a lawyer. Questions like that, Brown explains, quietly favor candidates from privileged backgrounds.

Maternal Wall and Leniency Bias

In law firms, Brown identifies the "maternal wall": assumptions that women, married or not, are less available or less committed, and closer scrutiny of lawyers who step away for family and log back on later. It combines with "leniency bias" when a partner decides, without asking, to take a returning mother off the big deal. Leniency also appears in evaluations when supervisors avoid giving honest criticism, which happens especially often to lawyers of color. Without feedback, they cannot improve. They are quietly left off matters, and their departure is then taken as proof. Brown rejects the excuse that fear of accusations justifies soft reviews. She also stresses that diversity without inclusion is just a revolving door.

Clients, Resolution 113, and the Model Diversity Survey

To the claim "I'm not biased, my clients are," Brown points to her presidency, when the ABA adopted Resolution 113, urging purchasers of legal services to direct more of their spending to diverse lawyers, and launched the Model Diversity Survey so that clients could compare firms consistently and track attrition. Giving diverse lawyers credit for the work and business they generate, she argues, lets them stay, gain influence, and sponsor others. Clients also notice the cost of turnover when they pay for new associates to get up to speed.

Prosecutors and the Pipeline

Brown calls prosecutors the most powerful actors in the criminal justice system because charging decisions often dictate the sentencing options available to a judge. She urges prosecutors to review their own charging records, which many found unsettling. She points to disparities in which juveniles are transferred to adult court. She also recalls that Black law students of her era rarely considered the prosecutor's office, and says representation matters everywhere: a team of nine star pitchers could never win a game.

Law Schools, the LSAT, and Rankings

Brown criticizes rankings pressure and heavy reliance on the LSAT. She notes that her own unremarkable score did not stop her from earning a full scholarship on her grades or passing the bar on her first try.

What Lawyers Can Do

Brown's prescription starts with self-knowledge, such as the Implicit Association Test, a timed exercise measuring how quickly people pair concepts. She admits that her own results associated women with family and men with careers. She urges lawyers to move toward discomfort, as they do when they push themselves into business development, and to audit how diverse their personal universe is: their neighbors, their congregation, the movies and music they choose. Biases do not vanish, she says, but lawyers can train themselves not to act on them.

What to Know Now

Several initiatives from Brown's presidency have lasted. The ABA adopted Model Rule 8.4(g), addressing harassment and discrimination in conduct related to the practice of law, at the end of her term. States have divided over it, and some versions have drawn First Amendment challenges. Many jurisdictions now require CLE on bias. California, for example, requires every lawyer to complete implicit bias training, and New York requires credit in diversity, inclusion, and the elimination of bias. Courts have also acted on jury selection. Washington's GR 37 asks whether an objective observer aware of implicit bias could view race as a factor in a peremptory strike, California adopted a similar statute, and Arizona abolished peremptory challenges altogether. The ABA's tougher bar passage standard for accreditation, adopted over objections that it would burden historically Black law schools, remains a subject of debate, as does the role of admission tests.

The broader climate has become more contested. After Students for Fair Admissions v. Harvard (2023) and federal actions in 2025 against diversity programs, many firms and companies scaled back or restructured diversity initiatives, several large companies dropped the diversity requirements they had placed on outside counsel, and the ABA suspended and then, in September 2026, repealed its law school diversity standard. Researchers also continue to debate how well the Implicit Association Test predicts individual behavior and whether bias training changes conduct. Some argue that structural fixes, such as consistent evaluation criteria, transparent assignments, and data review, work better than awareness training alone. Critics of diversity programs argue they can conflict with equal treatment. Supporters argue that bias remains a measurable problem. The practices Brown emphasizes are available to every lawyer and do not depend on any one program: honest and timely feedback, fair allocation of work, reviewing one's own track record, and broadening one's professional circle.