Attire Before a Jury

Judges have more discretion to control an attorney’s appearance in the context of a jury trial. A California court upheld a trial judge’s authority to request that a female attorney remove an inappropriate hat. In that case, the trial judge merely requested, in front of the jury, that the attorney remove the hat because it was a distraction to the jurors. The attorney moved for a mistrial based on the judge’s suggestion. The reviewing court noted: “Parading a freakish hat before a jury could only be characterized as pure exhibitionism and courtroom exhibitionism indulged in by either men or women lawyers is a type of aberration which merits only disapproval.” People v. Rainey 224 Cal. App. 2d 93, 97 (1964). Similarly, a New York case upheld a trial judge’s order that an attorney, who was also a Catholic priest, remove his clerical garb before appearing before the jury in a criminal trial. The attorney, who represented the defendant, contended that the trial judge’s order violated his First Amendment right to free exercise of religion. The appellate court noted that the guarantee of a fair trial is so fundamental, that the court’s order must be upheld and to do otherwise would potentially subject the defendant to religious prejudice. LaRocca v. Lane 37, NY 2d 575 (1974).

Attire at Bench Trials and Hearings

Attorneys do not surrender all Constitutional rights upon entering the courtroom and an attorney arguably has more freedom to dress as he or she pleases outside of the jury’s presence. For example, a San Diego Superior Court judge informed a plaintiff’s attorney that he could not appear before the court wearing a turban unless he demonstrated a legitimate reason for wearing it. Absent a showing that the turban interfered with justice in the courtroom, the appellate court granted the attorney’s writ of mandamus permitting him to appear before the judge in the turban, without explaining its purpose. The court commented: “We hold to the belief no person need declare his or her faith, or lack of it, to engage in the practice of law. Courtroom inquisition concerning physical condition or cosmetic appearance is an invasion of privacy.” Jensen v. Superior Court of San Diego County, et al. 154 Cal. App. 3d 533, 541 (1984).

Conclusion

Judges are entitled to require attorneys to dress formally for court appearances and may require that attorneys avoid wearing articles of clothing that distract or interfere with the administration of justice in the court room. Courtroom rules that fall reasonably under these principles appear to commonly be upheld by higher courts. Because courts are governmental bodies, however, that line may be crossed when any courtroom rule restricts an attorney’s ability to wear religious garb, as such a rule may violate an attorney’s Constitutional rights.

Of course, an attorney’s personal taste may be outweighed by the interest of his or her client if the attorney’s appearance may prejudice the client. As most judges require that attorneys dress in business attire in their courtrooms, conservative dress, which may or may not include pantsuits for women, is generally the best way to avoid the wrath of a fashion conscious judge.

During my first year of law school, the career counselor advised female law students to avoid wearing pantsuits to interviews, because senior attorneys were accustomed to courtroom rules often prohibiting pantsuits. As old-fashioned as that sounded, judges have prohibited female attorneys from wearing pantsuits in court as recently as 1999, when a female Seattle Superior Court judge stated that pantsuits were not sufficiently formal for her courtroom and threatened possible sanctions against two female attorneys in violation of her rule. She later recanted her statements after she consulted with other local judges and nearly all of them disagreed with her position.

The Basics

California judges may impose minimum dress codes for attorneys where an attorney’s attire tends to cause disorder or interferes with the functioning of the court. Jensen v. Superior Court of San Diego County, et al. 154 Cal. App. 3d 533, 541 (1984). Other jurisdictions provide similar rules. For example, Alaska permits judges to enunciate a dress code as long as the dress code is not unreasonable and is not based on matters of personal esthetic taste. Friedman v. District Court, 611 P.2d 77 (Alaska 1980). Courtroom dress codes are rarely challenged and what constitutes a reasonable dress code varies depending upon the circumstances. In California, attorneys have a duty to “maintain the respect due to the courts of justice and judicial officers” under California Business & Professions Code Sections 6068(b) and (f). Failure to properly conduct oneself before the court is punishable by contempt and disciplinary procedures in the form of sanctions or, in extreme cases, suspension. California Code of Civil Procedure, Section 1209.

Many courts follow the dress code set forth in the United States Supreme Court Notice to Counsel, which requires attorneys to appear in “conservative business attire, preferably in a dark color keeping with the dignity of the court.” San Bernardino County Superior Court Rule 1900 uses similar language, applying the standard to attorneys, litigants, witnesses and spectators. Los Angeles County Superior Court Rule 8.2 states: “Persons in the courtroom should not dress in an inappropriate manner such as to be distracting to other or usual sensibilities . . . Attorneys and court personnel should be dressed in accordance with current customs as to their business or work attire.”

In the United Kingdom, barristers (the equivalent of litigators in the U.S.) are required to wear robes and wigs in court, eliminating the need to address fashion faux pas during trial. The British House of Lords addressed the matter of traditional courtroom garb in a series of Consultation Papers which noted that the robes and wigs maintain a “sense of solemnity and dignity of the law” and tended to create a sense of “sameness” amidst barristers, so that jurors may focus on the matters at hand rather than the barristers themselves. In the United States, however, courtroom attire can be a strategic tactic in a jury trial. Attorneys sometimes hire jury and image consultants for advice on how to dress and present themselves in court. In one memorable example, Los Angeles County prosecutor Marcia Clark made headlines with her “makeover” during the infamous O.J. Simpson trial to soften her image before the jury and public.

Courtroom attire is an important consideration for attorneys, who must balance self-expression with the need to “maintain the respect due to the courts of justice and judicial officers.” The next entry will address the legal and Constitutional implications of dress code restrictions in the context of jury trials, bench trials and hearings.