Judge Recuses Over Policy Encouraging Underrepresented Lawyers

A Manhattan federal judge recused himself from a case involving PayPal Inc.'s investment program for Black and Latino-led emerging venture-capital funds, after lawyers accused him of including racial preferences in his courtroom policies.

US District Judge Dale Ho’s courtroom policies encourage “the participation of less experienced attorneys,” including “attorneys from backgrounds that historically have been underrepresented in the federal bar” where the lawyers played a substantial role in preparation for the case. Final decisions around who speaks for the client is up to the lead attorney on the case, not the court, the policies say.

Lawyers from Consovoy McCarthy representing the plaintiff challenging the investment program as illegally discriminatory alleged that Ho’s practices “regarding preferences based on race create at least a perception that the Court tolerates the practices that are at issue in this case.”

The case was reassigned to US District Judge Jesse Furman on Feb. 19, after the lawyers filed the motion on Feb. 14.

Ho’s practices violate the Constitution’s equal protection guarantees and Canon 2A of the Code of Conduct for US judges, which requires them to “respect and comply with the law” and to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” the lawyers argued.

Consovoy McCarthy, which successfully challenged affirmative action before the US Supreme Court in Students for Fair Admissions v. President and Fellows of Harvard College, cited the landmark case to argue that the “core purpose” of the Constitution’s equal protections is to do “away with all governmentally imposed discrimination based on race”

The lawyers also alleged violation of Canon 3C, which says that judges should “disqualify” themselves “in a proceeding in which the judge’s impartiality might reasonably be questioned, including” where the judge knowingly has an “interest that could be affected substantially by the outcome of the proceeding.”

Other Judges

This is the second time the lawyers have sought reassignment for the case over a judge’s courtroom policies. Consovoy McCarthy argued that US District Judge Analisa Torres’ previous court standards that encouraged “relatively inexperienced attorneys—in particular women and underrepresented minorities—to participate in all courtroom proceedings,” amounted to racial preferences.

Those standards also made way for multiple attorneys to speak for a client “if it creates an opportunity for a lawyer who is relatively inexperienced or from an underrepresented group.”

Torres has since changed the language under her “Participation of Junior Attorneys” section.

Other federal judges have also come under scrutiny for similar policies.

Three Illinois district court judges rescinded policies in 2024 that encouraged more opportunities for “newer, female, or minority” lawyers in standing orders that were challenged by an ethics complaint filed by a conservative legal group.

Many judges have opted for race-neutral policies that focus on nurturing all newer lawyers joining the profession. These orders nudge—but don’t force—law firms, their senior attorneys, and their clients to expand the roles junior lawyers play in cases.

Many of these policies note that fewer cases go to trial, that speaking opportunities for newer lawyers have shrunk as a result, and that the ultimate decision of who argues on behalf of a client rests with lead counsel, not the judge.

The case is: Desai v. PayPal Holdings Inc., S.D.N.Y., No. 1:25-cv-00033, complaint, 2/19/25