“He is the principal attorney of the Law Offices of Michael S. Ross where he focuses his practice on attorney ethics,” Stern continued. “He is a former Assistant U.S. Attorney for the criminal division in the Southern District of New York and also is a professor at Cardozo School of Law and Brooklyn Law School.”

The two attorneys had clearly done the CLE before as they successfully got a room full of attorneys to be active participants in a dialogue on ethics and diversity by introducing a hypothetical situation and examining its implications.

The hypothetical situation was introduced — a fictional Long Island law firm with 20 attorneys. The lone female African-American woman at the firm is a working mother with a lot of child care responsibilities that keeps her from bringing in new business or making referrals. She is an extremely skilled and experienced trial attorney who is making 15 percent less than her peers. She confronted her supervisors and explained that she is uncomfortable with the pay gap.

When asked if anyone was familiar with this hypothetical situation, a couple of female attorneys immediately raised their hands with one shouting, “Oh, yes!”

“She’s not bringing in new business and we’re told that she’s a working mom,” Whittingham said. “Do we treat her differently because she is a working mom? How do we treat her? A great first step is addressing it with her manager because you cannot change something if people don’t know about it.”

Ross pointed out that there has been no law, court case or opinion that has provided with a clear answer on the situation. Whittingham pointed out that the right or wrong way it’s handled likely depends on the law firm’s policy and its transparency.

“Was that something that was set up in the beginning?” Whittingham said. “Did she know that going in. If you bring in more business, then you will get this amount. If those parameters were set in the beginning, then there is nothing to talk about. Right. It’s not that you are being treated differently, you are being told that this is how you behave.”

The two attorneys continued the discussion, adding additional facts to the hypothetical to change the situation as the discussion continued.

The BBA and the NYS Academy of Trial Lawyers will host their next joint-CLE on Nov. 2, the 2018 annual update. That is an all-day CLE that starts at 9 a.m. and continues through 5 p.m., and is worth a total of eight credits including one Ethics credit and seven Professional Practice credits. That will take place at the BBA in Brooklyn Heights.

The next BBA CLE will be the 2018 Bankruptcy Update on Thursday at 6 p.m. Attorneys David J. Doyaga and Gregory M. Messer will be the lecturers for that 2.5 credit seminar.

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