Legitimate References to Listed Factors

Rule 2.3(D) carves an exception out of the two prohibitions that precede it: the restrictions of paragraphs (B) and (C) "do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding."¹ Paragraph (B) bars a judge from manifesting bias, prejudice, or harassment, by words or conduct, on grounds such as race, sex, religion, and disability. Paragraph (C) requires the judge to make lawyers refrain from the same conduct.² Paragraph (D) draws the boundary around both. The rules forbid expressing or exploiting prejudice, and a reference to a characteristic that the issues in the case require does neither.

Courts hear many cases that turn on the very characteristics the rules list. An employer is said to have fired a worker because of race. A witness's age or disability may bear on what she could perceive. A dispute may depend on a party's marital status. None of these cases can be tried without naming the characteristic aloud. If every mention of a listed factor counted as manifesting bias, judges could not decide such cases and lawyers could not present them. The prohibition targets prejudgment by category, which decides a matter on assumptions about what a group is like. A reference that the claim or the evidence calls for uses the characteristic to answer a question the case presents, so it involves no prejudgment.

The dividing line, then, is relevance to an issue in the proceeding. The bare fact that a protected characteristic was mentioned decides nothing. The text protects legitimate reference to a factor that is relevant, so the claimed connection to an issue has to be real. A speaker who asserts that race, religion, or national origin bears on the case, but who offers nothing linking the characteristic to an issue except an assumption about how members of the group behave, has presented prejudice under the label of relevance. The claims, defenses, and evidence actually before the court measure relevance, and the speaker's own say-so does not establish it.

The exception is symmetrical, because paragraph (D) covers "judges or lawyers" alike.³ A judge who discusses a plaintiff's race in a race-discrimination case stands on the same footing as the lawyer who pleaded it. The symmetry matters for the judge's supervisory duty under paragraph (C). A judge who cut off counsel's relevant reference to a listed factor would enforce the rule beyond its terms and obstruct a party's presentation of its own claim. The exception also reaches "similar factors" as well as the named ones, a breadth that parallels the "including but not limited to" phrasing of paragraphs (B) and (C).⁴

Tipton v. Aaron, a custody appeal, shows what racial material looks like when no issue supports it. The appellee had already testified about racial bias. Other witnesses were then called, and the opinion found that the apparent purpose of eliciting their testimony was to persuade the trial court by sheer prejudice.⁵ It added that this testimony did nothing to help reach a correct legal result on custody in light of Palmore, and that it was cumulative and redundant.⁶ The passage addresses Palmore, not Rule 2.3(D), so it serves only as a contrast. In a discrimination suit, race is the subject of the claim. In that custody dispute, the racial testimony did not help decide the legal question and served only to appeal to prejudice.

In each of those scenes, something in the case itself ties the characteristic to an issue: the claim alleges that race or political affiliation caused the firing, and the witness's disability bears on what she could perceive. The testimony condemned in Tipton v. Aaron had no such tie. It was offered only to move the court through prejudice.

Exam Analysis Steps

Because the exception depends on what a reference is doing in the case, run it as a short sequence that ends in a judgment about relevance:

Identify the characteristic that was mentioned and confirm that it is one of the listed factors or is similar to one of them.
Identify who made the reference, a judge or a lawyer. The same relevance test governs both, and the speaker determines whether paragraph (B) or paragraph (C) is the rule in play.
Identify the issue in the proceeding that the characteristic is said to bear on, such as an element of a claim, a defense, or a witness's ability to perceive what the witness describes.
Ask whether the case's own claims, defenses, or evidence actually connect the characteristic to that issue, or whether the connection rests only on an assumption about what members of the group are like.
Conclude that the reference is legitimate if the connection is real. If it is missing, paragraph (B) or (C) applies, and the judge must stop a lawyer's reference of that kind.

The fourth step does the real work, because the first three only locate the characteristic, the speaker, and the issue. A stem that labels a reference "relevant" has not supplied the connection, so check whether anything in the facts links the characteristic to an issue. A stem that merely reports a protected characteristic being discussed does not describe a violation either, since a judge who makes or allows a relevant mention, as in the employment case, has complied with the rules. The reverse error also costs points. A judge who lets a lawyer's irrelevant, prejudice-driven reference run on has not met paragraph (C), even when the other side never objects.

Legitimate References to Listed Factors

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