Dressing-Up Professionalism: How Legal Professionalism Reinforces Social Power Structures through Attire and How Civility Could Help Us Change

by Tori DeLaney, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

The tension between wanting to be yourself and the reality that other’s perception of you and your abilities might waiver if you diverge from style-norms is particularly acute in more conservative professions like law.¹ In the legal field, attire is directly related to professionalism and “looking like a lawyer.”² The legal professional appearance is rigidly gendered, frequently racialized, and continues to embrace elitist formalities established by “gentleman” culture – a culture which centered around wealthy, white, men and expressly excluded others.³ While some law offices have relaxed dress-code standards to allow attorneys to wear jeans, courts still largely require strict, formal attire.⁴ Unsurprisingly, women, people of color, religious minorities who wear faith-based clothing, and LGBTQ+ individuals (particularly transgender and non-binary people) struggle to define their “professional” style more than white, cisgender, men because legal environments historically excluded everyone who was not a wealthy, white, man.⁵

Many scholars have discussed how legal attire reinforces the gender binary, racial hierarchy, and classism within the profession.⁶ Many have even offered solutions like:

Professionals must educate themselves further on the history and continued biases that exist within the legal profession;
Legal employers and law schools must create more “culturally proficient environments”;
Implementation of express (genderless) dress-code policies that embrace personal style, promote inclusion, and carry forward professional characteristics like confidence, which would benefit both employers and employees.⁷

However, no scholars seem to have discussed disrupting appearance standards using another professional standard, civility.⁸ The decision not to use civility is not wholly surprising because “notions of civility,” much like appearance, are often “thinly disguised tools for exclusion and hierarchy.”⁹ The profession holds civility as a core tenant that sets legal professionals apart from other professionals.¹⁰

This article explores how professionalism upholds and contradicts itself through unspoken dress codes and the notion of civility. Section II provides background on the concept of civility and its importance to the profession. Section III discusses how civility and attire are used to reinforce existing narratives around professionalism that sustain historical power dynamics and how the rejection of that narrative could support attorneys in the profession with diverse identities. Finally, Section IV concludes that the existing professionalism narrative that reinforces strict attire standards will be difficult to change but that such changes are necessary to promote civility and diversity in the legal profession.

II. Background

Civility is considered essential to legal professionalism and effective advocacy.¹¹ Civility is framed as the “behavioral code of decency” lawyers are expected to include in their practice.¹² It demands that lawyers act with “courtesy, dignity, and respect” towards clients and legal opponents.¹³ Lawyers are meant to believe that civility is one aspect of the profession that sets it apart from other professions.¹⁴ In theory, incivility is unprofessional, violates ethical standards, and causes a lawyer to “los[e] a client’s case” or face “ostracism from the legal community.”¹⁵ In practice, these consequences do not come to fruition unless an individual judge imposes sanctions as a way to maintain deference to the court.¹⁶ A ten-year case study between 1998 and 2008 found that 80% of cases mentioning incivility involved men, and the predominant “sanction” against uncivil lawyers was only written or verbal reprimands (77.6%).¹⁷ Courts, disciplinary bodies, and other professional organizations like state bar associations have attempted to curtail incivility but with little success.¹⁸

Historical writings around professional, legal conduct centered on wealthy, white, men.¹⁹ Authors of these historical texts assumed any future lawyer would be a man with “gentlemanly manners and deportment” of a similar social status.²⁰ When historically excluded groups like women, people of color, and lower-income individuals joined the profession, existing attorneys (e.g., wealthy, white, (cisgender) men) expected these new members to learn how to “behave” like lawyers and criticized those who did not.²¹ The behavioral expectations included how to act, speak, and dress like a lawyer (e.g., how to behave like wealthy, white, (cisgender) men).²² The profession continues to use these behavioral and dress standards to hold non-white, non-male lawyers to professionalism standards that insulated white, binary-gender supremacy.²³ For example, the implementation of a character and fitness examination and mandatory bar fees initially existed to exclude people who did not meet elitist male standards of “gentlemanly” manners and dress.²⁴ These same systems continue to exclude individuals based on socio-economic background and disability, particularly mental illness. The legal profession may be able to build a healthier, more diverse profession by using civility to negate its “gentleman” roots and to expand what it considers professional manners and attire.²⁵

III. Discussion

The legal profession can alter the impact of its elitist, racist, and gendered narrative around professionalism by emphasizing civility for others rather than “respect” and “conformity” to the largely unwritten rules of the profession, like attire.²⁶ Legal professionalism was constructed around middle-class, white men and often used professionalism to force women, people of color, immigrants, and others to assimilate to existing “gentleman” culture in law. ²⁷ Legal professionals, particularly those from underrepresented groups, are still forced to assimilate to legal culture by forgoing or diminishing key aspects of their identity to be considered “professional.”²⁸ For example, a non-binary person may have to commit to dressing “like a man” or “like a woman” to avoid ridicule.²⁹ Black women may be forced to straighten their natural hair to conform to a company or court’s grooming standards.³⁰ This assimilation takes a mental and financial toll on individuals while not assimilating could lead to ostracization, derogatory comments, and potential loss of employment or cases.³¹

The legal profession should disrupt and dismantle its ostracizing, “gentlemanly” standards of attire by using a broader understanding of civility.³² Non-white, non-male lawyers who do not come from economically privileged backgrounds must struggle to exist in the legal profession, a profession that never intended to include them.³³ The legal profession’s current interpretation of civility reinforces a uniform “gentleman’s” culture.³⁴

However, civility as a broader, historical term created a behavioral system that promoted decency and respect between individuals in a shared community.³⁵ The legal community should embrace this broader definition to create a profession where the emphasis is on how attorneys treat others rather than how attorneys look.³⁶ This change in perspective means courts, disciplinary boards, and other legal environments would (formally or informally) punish attorneys for disrespect and microaggressions rather than alienate attorneys for not wearing pantyhose or a tie.³⁷ Employers, courts, law school counselors, and other entities who advise attorneys about attire should begin to emphasize respect for others within our legal community and reimagine what it means to dress like “a professional.”³⁸

IV. Conclusion

The way people dress conveys an aspect of who they are, including self-esteem, self-confidence, and identity.³⁹ It can also reinforce societal and professional narratives about who belongs.⁴⁰ By using a broader definition of civility that centers around people rather than the profession, the legal community may be able to diversify its professionals and loosen its attire standards.⁴¹ This broader standard could also help bolster civility more broadly in the profession.⁴²

Fighting current professional attire standards and incivility will be difficult because of the law’s history as a “gentleman’s” profession and individuals’ propensity to lash out against “stressful” societal or communal change.⁴³ Change will also be difficult because of the controversies around gender identity and racial equality.⁴⁴ However, change is possible if the profession is willing to implement incremental and drastic measures to expand the definition of “appropriate” and “professional” workplace attire.⁴⁵ It is time for the legal profession to build a new narrative and redefine who can be a legal professional and how a legal professional appears.⁴⁶

Cover Photo by Ketut Subiyanto on Pexels

Tori DeLaney

Tori DeLaney focused their undergraduate research on how "acceptable" gender identities fluctuated in novels and, by extension, society over time. Tori later worked as a Family Law and Guardianship paralegal where they observed the impact of gender on the law and vice versa. Tori hopes Law Review can be an avenue to examine the obvious and subtle ways gender and law mingle.

References

1
Rebekah Hanley & Malcolm MacWilliamson, Model Dress Code: Promoting Genderless Attire Rules to Foster an Inclusive Legal Profession, 34 J. Civ. Rts. & Econ. Dev. 125, 129 (2021); Elizabeth B. Cooper, The Appearance of Professionalism, 71 Fla. L. Rev. 1, 5 (2019); Shannon Cumberbatch, When Your Identity is Inherently “Unprofessional”: Navigating Rules of Professional Appearance Rooted in Cisheternormative Whiteness as Black Women and Gender Non-Conforming Professionals, 24 J. Civ. Rts. & Econ. Dev. 81, 87 (2021).
2
Karen DaPonte Thornton, Parsing the Visual Rhetoric of Office Dress Codes: A Two-Step Process to Increase Inclusivity and Professionalism in Legal-Workplace Fashion, 12 J. ALWD 173, 174 (2015); Ann Juliano, How to Look Like a Lawyer, 34 J. Civ. Rts. & Econ. Dev. 151, 155-57 (2021).
3
Cooper, supra note 1, at 10 n.35, but see 11 n.36; see also Jennifer Bricker, Suit Up!: Decoding the Attorney Dress Code, 77 Or. State B. Bill 19, 20-23 (2017) (providing testimonies of attorneys; noting the societal shift towards comfort over the last 100 years has inspired many professions, including law to rethink the dress requirements); Ciera Berkemeyer, New Growth: Afro-Textured Hair, Mental Health, and the Professional Workplace, 44 J. Legal Prof. 279, 282-83 (2020); Cumberbatch, supra note 1, at 91-104 (explaining the gendered and racialized appearance standards in the legal profession and under a more general understanding of “professionalism”); M.H. Hoeflich, Dressing for Success: Lawyers & Clothing in Nineteenth Century America, 69 U. Kan. L. Rev. 527, 530-31 (2021).
4
Cooper, supra note 1, at 10 n.35, but see 11 n.36; Bricker, supra note 3, at 23; Cumberbatch, supra note 1, at 88.
5
Cooper, supra note 1, at 10 n.35, but see 11 n.36; Thornton, supra note 2, at 174-75; Cumberbatch, supra note 1, at 89-91; Hoeflich, supra note 3, at 530-31, 536-37; Bricker, supra note 3, at 23; Cumberbatch, supra note 1, at 88-89 (using the Virginia Bar as an example where men’s attire was strictly defined as “coat and tie” but women’s attire was defined using vague terms like “traditional business attire”).
6
Cumberbatch, supra note 1, at 90-91, 106, 115; Hoeflich, supra note 3, at 530-31, 536-37; see Hanley & MacWilliamson, supra note 1, at 142-43; Amy R. Mashburn, Making Civility Democratic, 47 Hous. L. Rev. 1147, 1149 (2011).
7
Leah Goodridge, Professionalism as a Racial Construct, UCLA L. Rev. (Mar. 29, 2022), https://www.uclalawreview.org/professionalism-as-a-racial-construct/ [https://perma.cc/8ZNZ-Z5GN]; Cumberbatch, supra note 1, at 122-23 (concluding that legal professionals must educate themselves further on the history and continued biases that exists within the legal profession); Cooper, supra note 1, at 63 (concluding that legal employers and law schools must create more “culturally proficient environments”); Thornton, supra note 2, at 192-93 (concluding that express dress-code policies that embrace personal style, promote inclusion, and carry forward professional characteristics like confidence, would benefit both employers and employees); Hanley & MacWilliamson, supra note 1, at 148 (concluding that one of the first step to alleviate gender-bias in law is express, genderless dress-codes).
8
David Grenardo, A Lesson in Civility, 32 Geo. J. Legal Ethics 135, 138 (2019) [hereinafter, Grenardo, A Lesson in Civility]; David Grenardo, Making Civility Mandatory: Moving from Aspired to Required, 11 Cardozo Pub. L. Pol’y & Ethics J. 239, 241-42, 245 (2013) [hereinafter, Grenardo, Making Civility Mandatory] (referring to civility as a legal version of the “golden rule”); Jayne R. Reardon, Civility as the Core of Professionalism, Am. Bar Ass’n (Sept. 18, 2014), https://www.americanbar.org/groups/business_law/publications/blt/2014/09/02_reardon/ [https://perma.cc/8W6K-9EJF].
9
Mashburn, supra note 6, at 1215 (quoting John Keane & Norbert Elias in Richard Boyd, Uncivil Society 25 (2004)).
10
Mashburn, supra note 6, at 1153-54; Grenardo, A Lesson in Civility, supra note 8, at 138; Reardon, supra note 8; Goodridge, supra note 7; Grenardo, Making Civility Mandatory, supra note 8, at 241.
11
Grenardo, A Lesson in Civility, supra note 8, at 138; Grenardo, Making Civility Mandatory, supra note 8, at 241-42, 245 (referring to civility as a legal version of the “golden rule”); Reardon, supra note 8.
12
Reardon, supra note 8; Grenardo, A Lesson in Civility, supra note 8, at 138.
13
Reardon, supra note 8; Grenardo, A Lesson in Civility, supra note 8, at 138.
14
Mashburn, supra note 6, at 1153.
15
Grenardo, A Lesson in Civility, supra note 8, at 138; Reardon, supra note 8; Goodridge, supra note 7; Grenardo, Making Civility Mandatory, supra note 8, at 241; Mashburn, supra note 6, at 1153-54.
16
Mashburn, supra note 6, at 1153-54 (noting that although courts and other disciplinary bodies have the power to discipline attorneys for incivility, they often do not or, if such enforcement is done, it is at the individual discretion of a presiding judge).
17
Mashburn, supra note 6, at 1162-65.
18
Mashburn, supra note 6, at 1153; Grenardo, Making Civility Mandatory, supra note 8, at 242 (noting 140 state and local bar associations have attempted to implement civility codes).
19
Hoeflich, supra note 3, at 536-37.
20
Id. at 534.
21
This author would like to acknowledge people with disabilities, people who practice a minority religion, and other groups who continue to be underrepresented in the legal field have faced these same barriers. Hoeflich, supra note 3, at 534, 536-37 (noting how Abraham Lincoln, as a Western attorney from a less formal legal culture, was criticized by legal elites on the east coast); see Jon Bauer, The Character of the Questions and the Fitness of the Process: Mental Health, Admissions and the Americans with Disabilities Act, 49 UCLA L. Rev. 93, 98 (2001); Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 Yale L.J. 1, 3 (1995).
22
Hoeflich, supra note 3, at 533-34 (outlining how elite, white, cisgendered, men who controlled the legal profession used “character” or manners (e.g., civility and ethics) and appearance to limit the legal profession to a homogenous group of wealth, white, men); Reardon, supra note 8 (noting that civility is not just good manners but also that the bar admissions standards around character and fitness are used to ensure bar candidates have “exemplary conduct” that reflects the “civility imperative” built into bar admission standards).
23
Goodridge, supra note 7; Mashburn, supra note 6, at 1149, 1162-63; Hoeflich, supra note 3, at 533-34; Hanley & MacWilliamson, supra note 1, at 129-32; Cumberbatch, supra note 1, at 83; Karen Grigsby Bates, When Civility Is Used As a Cudgel Against People of Color, Nat’l Pub. Radio (March 14, 2019), https://www.npr.org/sections/codeswitch/2019/03/14/700897826/when-civility-is-used-as-a-cudgel-against-people-of-color [https://perma.cc/DBY3-GGV7].
24
Hoeflich, supra note 3, at 531-32, 534 (explaining how the characteristics expected of Bar applicants on the East coast emulated the manners and customs of the legal elite; noting that the characteristics of Western attorneys at the time were more relaxed manner and appearance standards because many Western lawyers were not generationally wealthy).
25
Infra Part III; see Mashburn, supra note 6, at 1150, 1153; Cumberbatch, supra note 1, at 82, 84-85, 111-12 (noting how assimilation and uniformity do not lead to greater respect for the legal process); Cooper, supra note 1, at 6-8, 7 n.23 and accompanying text; Hanley & MacWilliamson, supra note 1, at 131; Bricker, supra note 3, at 23; Reardon, supra note 8.
26
See Mashburn, supra note 6, at 1150, 1153; Cumberbatch, supra note 1, at 82, 84-85, 111-12 (noting how assimilation and uniformity do not lead to greater respect for the legal process); Cooper, supra note 1, at 6-8, 7 n.23 and accompanying text; Hanley & MacWilliamson, supra note 1, at 131; Bricker, supra note 3, at 23.
27
Hoeflich, supra note 3, at 536-37; Mashburn, supra note 6, at 1162-63.
28
See Hoeflich, supra note 3, at 536-37; Hanley & MacWilliamson, supra note 1, at 142 n.95, 143; Mashburn, supra note 6, at 1162-63; Goodridge, supra note 7 (noting that an individual who calls-out another for incivility in the form of racism or sexual harassment is often viewed as the disruptive party rather than the person who made the misogynistic, racist, or otherwise harassing comments); Cumberbatch, supra note 1, at 114 (explaining the “invisible labor” that minority groups have to perform to assimilate to dominant culture’s expectations and to be perceived as not disruptive); Cooper, supra note 1, at 4, 6-8 (explaining the stress minority attorneys when assimilating to legal culture’s expectations; noting the microaggressions they experience if they do not cover their non-confirming identity); Juliano, supra note 2, at 155, 184 (discussing the difficulty transgender and gender non-conforming students have when dressing like a lawyer; noting how students and other new attorneys assimilate to the culture of their employer).
29
The phrase “like and man/woman” in this sentence refers to the expectation that men dress “masculine” in ties and suit jackets while women dress “feminine” in heels and a skirt. See Case, supra note 22, at 2-3; Hanley & MacWilliamson, supra note 1, at 123.
30
Cumberbatch, supra note 1, at 81-82, 87; Goodridge, supra note 7; Thornton, supra note 2, at 173.
31
Goodridge, supra note 7; Mashburn, supra note 6, at 1149; Cumberbatch, supra note 1, at 81-82, 97 n.85 and accompanying text, 98; Cooper, supra note 1, at 7 n.63 and accompanying text, 31-32.
32
See Goodridge, supra note 7; Mashburn, supra note 6, at 1149, 1162-63; Cumberbatch, supra note 1, at 81-82, 97 n.85 and accompanying text, 98; Cooper, supra note 1, at 7 n.63 and accompanying text, 31-32; Hoeflich, supra note 3, at 536-37.
33
See Hoeflich, supra note 3, at 536-37 (noting how professionalism was constructed around middle-class, white men and often used expressly as a way to force women, people of color, immigrants, etc. to assimilate to existing “gentleman” culture in law); Mashburn, supra note 6, at 1149, 1162-63; Cumberbatch, supra note 1, at 85, 97 n.85 and accompanying text, 98; Berkemeyer, supra note 3, at 284-85 (noting one in five women and one in ten men felt they needed to change their natural hair text to succeed professionally).
34
See Hoeflich, supra note 3, at 536-37; Reardon, supra note 8; Grenardo, A Lesson in Civility, supra note 8, at 138; Cumberbatch, supra note 1, at 110-11; Bates, supra note 24.
35
See Grenardo, A Lesson in Civility, supra note 8, at 138; Mashburn, supra note 6, at 1150-51, 1162-64; Reardon, supra note 8 (noting the etymologies of civility define the term as a “behavioral code of decency or respect that is the hallmark of living as citizens in the same state”).
36
See Mashburn, supra note 6, at 1150-54 (stating how the law can only create a democratizing version of civility by incorporating interdisciplinary definitions; noting disciplinary action around incivility is currently not well enforced); Cumberbatch, supra note 1, at 82, 84-85, 111-12.
37
See Mashburn, supra note 6, at 1150-54; Cumberbatch, supra note 1, at 82, 84-85, 111-12; Bricker, supra note 3, at 20-21; Cooper, supra note 1, at 6-7 (discussing how appearance norms contribute to microaggressions to “outsiders” in the legal profession).
38
See Cumberbatch, supra note 1, at 87; Goodridge, supra note 7, at n.15.
39
See Cumberbatch, supra note 1, at 90, 93; Hanley & MacWilliamson, supra note 1, at 126, 148; Juliano, supra note 2, at 191; Thornton, supra note 2, at 174, 181.
40
Cooper, supra note 1, at 4; Cumberbatch, supra note 1, at 95; Hanley & MacWilliamson, supra note 1, at 145.
41
Supra Part III.
42
See Reardon, supra note 12; Goodridge, supra note 7; Grenardo, A Lesson in Civility, supra note 12, at 138; Mashburn, supra note 6, at 1162.
43
Hoeflich, supra note 3, at 536-37; Cooper, supra note 1, at 44-46 (discussing “backfire effect” and emphasizing the importance of legal professionals to build stamina to consciously engage with race).
44
Hanley & MacWilliamson, supra note 1, at 129-30 (noting the growing public awareness around gender controversies); Legislation Affection LGBTQ Rights Across the Country 2021, Am. Civ. Liberty Union https://www.aclu.org/legislation-affecting-lgbtq-rights-across-country-2021?redirect=legislation-affecting-lgbt-rights-across-country [https://perma.cc/PG24-H7GG]; Mary Abowd, Transgender Controversies Can Lead to ‘Gender Panic’ Study Finds, Univ. Chicago News (Nov. 1, 2013), https://news.uchicago.edu/story/transgender-controversies-can-lead-gender-panic-study-finds [https://perma.cc/KMN7-VEU8].
45
See Goodridge, supra note 7; Cumberbatch, supra note 1, at 122-23 (concluding that legal professionals must educate themselves further on the history and continued biases that exists within the legal profession); Cooper, supra note 1, at 63 (concluding that legal employers and law schools must create more “culturally proficient environments”); Thornton, supra note 2, at 192-93 (concluding that express dress-code policies that embrace personal style, promote inclusion, and carry forward professional characteristics like confidence, would benefit both employers and employees); Hanley & MacWilliamson, supra note 1, at 148 (concluding that one of the first step to alleviate gender-bias in law is express, genderless dress-codes).
46
Supra Part III; contra Hoeflich, supra note 3, at 536-37.