Denver Bar Association
October 1999
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Women Dress Less Nowadays

by Robert Cervone

I have a friend who is a fine associate. Her research memoranda are extensive and cover everything. Her briefs are short, tight and engaging. Still, she’s got problems at work. The partners in her firm don’t like that her clothes are more like her briefs than her research memoranda. She’s
Justice Ginsberg will not have difficulty concentrating on an oral argument because she can see the contours of Alan Dershawitz' sinewy body.
been warned that her hemline is not in line with a lawyer’s sartorial obligations.

Her wardrobe is professional, tasteful and very expensive. But Ally McBeal has nothing on her. Her skirts are, in a word, short. Her bosses want them longer.

Another friend of mine, and a much-less revealing dresser, quickly quoted the "Matron Maxim," the governing principle of the female lawyer’s dress. It holds that a female lawyer should dress in a way that evokes as much sexual attraction in a male judge or client as would be evoked in them by their mothers.

I was disheartened to learn the harshness of the doctrine, but it seemed to be settled law. I counseled my troubled friend to exchange her credit account at "Garbarini" for one at the "Dress Barn." She, however, rejected this counsel. She says she is going to change the "law." She gave me a summary of her argument to the court of couture, which is as follows:

The true meaning of the Matron Maxim is obscure. There are many interpretations, few guidelines. Some hold that "baggy" clothes are required. But one woman’s baggy is another woman’s spandex. Others hold that a "frumpy" look is required. But recent litigation has proved this view untenable (see Linda Tripp).

The majority view is that one must dress "conservatively." But lawyers expend vast sums on what they view as "conservative" clothing, and they are still indicted for dressing inappropriately. Even if one endeavors to look like Arriana Huffington, the risk of prosecution remains. The rule is too nebulous, judgment under it too arbitrary.

Moreover, "conservatism" cannot be the benchmark for compliance. If it were, the maxim would be known as the "Reagan (Nancy) Rule" or the "Schaffly Standard." But even the most Victorian of senior partners would not suffer on their associates so cruel a doctrine. The Matron Maxim is intended to prevent undue titillation of male judges and clients, not to scare the hell out of them.

It may also be argued that the Matron Maxim is rooted in ancient customs developed to symbolize the lawyer’s role in the judicial system. If you’re in a courtroom and wearing a white wig, you’re either a lawyer or a judge.

But if you’re in a courtroom and you’re frumpy, you’re . . . (testifying about your friend, whose most personal secrets you tape-recorded and turned over to a vindictive prosecutor?).

In America, a white wig symbolizes one’s role in the judicial system as much as being a member of the House of Lords demonstrates one’s qualification to sit on the bench.

If the Matron Maxim is the symbolic manifestation of a female lawyer’s role, it should go the way of the white wig in America. Clothing as a symbol of a person’s role in any "system" is inherently unsound (see, e.g., an "apron" and "bare foot and . . ."). A lawyer’s role is best symbolized by her connection to a just cause prevailing (see, e.g., Thurgood Marshall & Brown v. Board of Education). The connection between clothing and a lawyer’s "role" is simply too attenuated to conclude that clothing somehow symbolizes that role. Respect for the law is best demonstrated by ethical conduct, knowledge of the law, and skill of advocacy.

Finally, it may be argued that the Matron Maxim is necessary to satisfy clients. But this logic has dangerous consequences. The premise is this: a lawyer should tailor her attire to the tastes of the client. Thus, if a client objects to short skirts, the lawyer should wear long ones. But this logic also requires that, if short skirts please the client, the lawyer must wear short skirts. The profession, of course, does not tolerate the latter proposition. But if the premise is accepted, the intolerable conclusion follows. And there is, in reality, no distinction. In either case, without regard to her abilities, a woman lawyer is required to adjust highly personal conduct to the whims of a (probably male) client. Clients, just like everyone else, must learn to judge women on their merits, not on their skirts.

The Matron Maxim is unfair. There is no male corollary. True, male lawyers must dress "appropriately." Also true, the list of acceptable ensembles for male lawyers is about as long as the list of Ken Starr victories. Blue blazer, khakis, suit and tie, that’s about it. (But see Jerry Spence). But if male lawyers are faced with a relatively small range of sartorial options, it is not due to a fear that other modes of dress will unduly tickle the fancy of female clients or judges.

Male lawyers, usually unintentionally, often wear tight-fitting clothes. That suit bought when fresh out of law school doesn’t fit quite the same after 4,000 client lunches. Bespoke suits (renowned for their highly fitted fit) are also perfectly acceptable for any legal endeavor. Few male lawyers, however, are directed to "expand" their wardrobe. Similarly, despite the ridicule heaped on the poor kid in third grade whose parents made him wear "waders" or "floods," male lawyers frequently expose far too much ankle. (This is due, in large part, to pulling one’s trousers above the belly button in an abortive effort to conceal a protruding gut. Cf., 4000 lunches supra.) But how many senior partners have chided a male associate for revealing too much argyle?

In other words, the profession does not worry itself that these "tight and short" male outfits will inordinately excite the female jurist. Justice Ginsberg will not have difficulty concentrating on an oral argument because she can see the contours of Alan Dershawitz’ sinewy body. Few female clients are induced to sleep with their attorney because his skin-tight, high-water Dockers make his buttocks seem sublime.

The profession expects woman will evaluate a male lawyer qua lawyer, whatever he is wearing. Thus, male lawyers are permitted to wear "tight and short" clothes. Men are expected to salivate upon seeing a woman in the equivalent clothing. Thus, female lawyers are saddled with the Matron Maxim. In short, women are punished because men are less sophisticated human beings.

Abandoning the Matron Maxim does not mean there should be no standard. A lawyer’s countenance should reveal power (reflecting knowledge and ability) and passion (reflecting an understanding of the gravity of the lawyer’s responsibility to society). If male judges and clients are too puerile to concentrate on a lawyer’s work, instead of her legs, the profession should address its energies to correcting those male failings.

The Matron Maxim should be replaced by the less familiar, but sounder, maxim: De se bene gerenda no a concellis curiae explodi. Loosely translated, "If I do my job, mind your own damn business."

Robert Cervone is a trial attorney with the National Labor Relations Board in Denver.

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