Courtroom attorneys are required to wear robes across a broad swath of the judicial world. Some Canadian lawyers want their country’s often rigid “gowning” requirements loosened to accommodate attorneys who are pregnant or have disabilities.
Lawyers contacted in several countries by Tax Notes had mixed reactions to the seemingly crazy quilt of court attire requirements for both judges and attorneys — in their jurisdictions and elsewhere. While some are happy that horsehair wigs have been doffed in many jurisdictions, several said robing requirements add an air of seriousness to judicial proceedings and serve as an equalizer among attorneys.
The rules for acceptable attire vary considerably between — and even within — countries, depending on the specific court and the nature of the legal proceeding. While the rule for attorneys in the United States is business formal across almost the entire judicial spectrum, commonwealth countries frequently are more hidebound when it comes to what a lawyer can wear in court. Variations on the dress code for judges often apply to the advocates who appear before them as well.
In the United Kingdom, solicitors and barristers must be familiar with court attire requirements that might seem — at least to those without a vested interest — almost as complicated as some of the laws they have to interpret. “Judges in the [U.K.] Supreme Court and the lowest tribunals do not wear gowns,” said Judith Freedman, professor of taxation law and policy at the University of Oxford. “In other courts, the rules vary on wigs and gowns. As with everything British, this is complex.”
Although U.K. criminal courts and many others still require judges and lawyers to wear wigs and gowns, a judge might dispense with these requirements in hot weather. Family division courts normally suspend court dress rules if children involved in the proceedings could be intimidated by the antiquated costumes.
In some jurisdictions, fashion is woven into the traditions that distinguish one class of advocate from another. In the United Kingdom and a handful of other commonwealth countries, some lawyers — almost always barristers — are awarded the title of Queens Counsel (QC) based on merit and expertise in their given areas of specialization. QCs normally wear a black frock coat and waistcoat under a silk gown, and are allowed to sit within the bar of the courtroom. A lawyer’s designation as a QC is informally known as “taking silk” and attorneys so honored are often referred to as “silks.”
Katy Barnett, a lecturer at Melbourne Law School, said that while judges in the High Court of Australia, the Federal Court of Australia, and the Supreme Court of Victoria no longer wear wigs on the bench, they still don formal black robes in court. Although Australian High Court judges have not worn wigs since 1988, they remain obligatory for the barristers appearing before them.
In Canada, gowning requirements are often as varied as they are in the United Kingdom and some other commonwealth countries. Superior courts require lawyers to wear black robes and white neck tabs, but not wigs. Provincial courts frequently allow attorneys to appear in business attire. Lawyers arguing cases before the Tax Court of Canada do not have to gown if the amount in dispute is below a specified threshold, depending on the tax type, said Nathalie Goyette, a tax lawyer with Davies Ward Phillips & Vineberg LLP in Montreal and chair of the Tax Court Bench and Bar Committee of the Canadian Bar Association (CBA). Lawyers involved in higher-value tax cases must robe. “However, when appearing on motions, counsel are not required to gown except if witnesses are to be presented,” she said.
Carly Romanow, executive director and staff lawyer at Pro Bono Law Saskatchewan, said courts with gowning requirements can be divided into three categories. The first includes courts with no exemptions for any reason and the second allows exemptions for pregnant attorneys. “The final category provides for exemptions to gowning for ‘personal circumstances,’ which may include pregnancy or disability, which would require counsel to wear altered robes,” Romanow said in an email. “The majority of the courts in Canada, including the majority of the Courts of Appeal, fall under the first category, having no explicit gowning exemption.”
Goyette and Sabrina Bandali, chair of the Canadian Bar Association’s Women Lawyers Forum, wrote a letter on November 8, 2019, to Eugene Rossiter, chief justice of the Tax Court, recommending that exemptions be allowed for lawyers who are pregnant, disabled, or have a medical condition, and that “a discreet and dignified process” be established for attorneys to advise the court of their requests to wear modified attire. Similar letters were sent to the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada. “Traditional gowning is meant to be a symbol of equality, but for lawyers in some circumstances, it can be a barrier to appearing in court,” Bandali and Goyette said.
Two of the lawyers contacted by Tax Notes had a different read on robing exemptions for pregnant women. “My only reaction is that a gown seems like a great idea if you are pregnant,” said Freedman. “It hides everything!”
Barnett said she wore robes in court during several pregnancies. “I had to borrow a bigger jacket off a friend during the later stages of pregnancy (and despite having a disability which sometimes requires me to use a walking stick),” she said in an email. “However, I can appreciate that if I was regularly in a wheelchair — I have had to use one at one point in my life before, although not while I practiced — the dangling sleeves might be a problem and get caught in the wheels.”
Romanow said the Women Lawyers Forum’s decision to pursue the issue was sparked by the experience of a pregnant attorney who had to appear before the Court of Appeal. The lawyer was unsure how to go about requesting permission to modify the traditional gowns. “Generally speaking, counsel that are pregnant may not be able to button up the black vest/jacket and/or white tabbed shirt that is required for traditional gowning,” she said in an email. “In the end, the lawyer had to ask leave from all three Court of Appeal justices that were presiding over the matter to wear modified gowns. From that story, we decided that advocating for changes to gowning practice directives across the country would allow for greater inclusivity in courts, especially for women.”
It is unclear whether the personal circumstances exemption allowed by some Canadian courts applies to religious beliefs. Goyette said she is not aware of any explicit gowning exemptions in the tax court for a Sikh attorney wearing a turban or a Muslim lawyer dressed in a burqa or hijab. Akash Karmarkar, a lawyer with Khaitan & Co. in Mumbai, said Sikh lawyers are allowed to wear turbans in Indian courts.
Justice Should be Blind to Fashion
The CBA said in a November 2019 posting on its web site that while gowning requirements for lawyers serve an important purpose, flexibility is required in some cases. “Far from being considered anachronistic, the hundreds-year-old practice of lawyers wearing robes to court is in modern times seen to be a great equalizer, forcing the attention to what lawyers are saying in court rather than what they’re wearing,” the CBA said. “But the current rules make some more equal than others. For those who are unable to don the prescribed mantle of equality for reasons of pregnancy or other personal circumstances such as a disability or medical condition, there is a lot of confusion about what they can or can’t do, or when and to whom they must explain why modifications to their attire are necessary.”
Patricia Glaser, head of the litigation department of Glaser Weil Fink Howard Avchen & Shapiro LLP in Century City, California, said that while there are no specific dress codes for lawyers in U.S. courts, she likes the idea of wearing robes like those required of attorneys appearing in French courts. “They are somewhat like school uniforms and serve as a great equalizer,” Glaser said. “I personally like the concept of advocates wearing essentially a black robe or cloak of some kind. I think it creates a little more dignity in the courtroom and shows respect for the system.”
Barnett said she agrees with the idea that a robing requirement helps iron out possible inequalities in the way attorneys are perceived in court. “I suspect the robes will be retained because they convey a sense of gravitas and anonymity, but I am glad the dress requirements have been relaxed,” she said. “I found that it was like a uniform, which made me equivalent to any other barrister, solicitor, or associate. I am not sad to see the wigs go, however. They are scratchy and uncomfortable.”
Karmarkar said court attire requirements are considered a significant equalizer in India. “Given the demographics of India and the substantial socioeconomic disparities, including amongst lawyers, this may be an effective way to ensure that courts and litigants are not prejudiced by how a lawyer is dressed,” he said in an email. “Uniform attire for lawyers also serves a more functional purpose in India; it makes it easier for clients/litigants to identify lawyers in court. In India, where litigants can be from marginalized communities which are underexposed to laws and legal processes, it is often necessary to establish an easy way to identify lawyers.”
Even if attorney robing and wig requirements do have a leveling impact in courtrooms, satisfying them doesn’t come cheap. According to the online catalog of Stanley Ley Ltd., a London legal outfitter, a judge’s full-bottom, horsehair wig costs £2,495, excluding VAT, while a shorter bench wig runs £1,329. Both are available in light grey and dark blond. At £457, a barrister’s wig is a relative bargain and comes in additional shades of “pure white” and “grey graded.” Although a barrister’s cloth robe sells for £121 to £200 at Stanley Ley, a QC could pay as much as £1,329 for the courtroom clothier’s pure silk Ottoman gown.
The issue of the deductibility of costly courtroom attire in the United Kingdom gave rise to a 1983 decision — often cited in other cases — involving taxpayer claims that purchases of clothing used at work can be offset against taxable income. Barrister Ann Mallalieu wanted to deduct the cost of the dark suits she wore exclusively in court, even though they were not unlike clothing often worn by other women in public.
The House of Lords, which at the time held final appellate authority over U.K. courts, overruled decisions by the High Court and the Court of Appeal, which had both ruled in favor of the taxpayer (Mallalieu v. Drummond [1983] 57 TC 330). While the precedent established by the law lords presumably does not apply to a barrister’s wig and court robes, it clearly provides that no deduction is allowed for clothing that forms part of an everyday wardrobe, even if the lawyer exclusively wears the garments in a courtroom setting. “Most professionals have to keep up appearances, but their clothing costs are not allowable, even where they amount to a quasi-uniform, as in Mallalieu v. Drummond,” HM Revenue & Customs said in its business income manual.
Decorum, Not Décolletage
According to an article in the National Law Journal about a panel discussion during the Seventh Circuit Bar Association’s annual meeting in 2009, one of the judges at the session responded to an issue brought up by a female colleague by saying that some women had come into his court wearing “skirts so short that there’s no way they can sit down and blouses so short there’s no way the judges wouldn’t look.” A bankruptcy court judge — also male — said the matter was a “huge problem” that needed to be addressed. “You don’t dress in court as if it’s Saturday night and you’re going out to a party,” the second judge said. He then apparently tried to balance his comments by expressing displeasure about lawyers — presumably male — who wore loud ties to court with designs like smiley faces.
“The clothes that lawyers wore should not be what you are thinking about after they finish their argument,” Glaser said. Anything that detracts from your message is a negative, not a positive. You’re there for your client, not for yourself. Sometimes you sit and scratch your head, asking, ‘What were they thinking?’”
Just as the way lawyers dress in court can affect how their arguments are perceived by judge and jury, so too can the appearance of witnesses, Glaser said. She gave as an example a case she won years ago in Oakland, California. “We interviewed the jury after the trial and two of them said our expert witness was inappropriately dressed,” she said. “She was a heavy-set woman and wore a skirt above her knees. Jurors notice that. Fortunately, it didn’t get in the way, but sometimes it does.”
“Courtroom standards have definitely changed,” Barnett said. “Initially, women were not supposed to wear trousers in the court, and old-fashioned judges would say to any woman wearing trousers, ‘I can’t see you,’ because you were not properly attired. In 1987, a female barrister named Ariel Couchman scandalized the Supreme Court of Victoria by wearing trousers that went against the then-strict dress code of the . . . Court. In 1993, Couchman’s supervising lawyer, Sue MacGregor, was thrown out by a Family Court judge when she appeared in court in polka dot stockings and a skirt above the knee.”
Morning Clothes in American Courts
At times sartorial issues make their way into the highest court in the land. According to the U.S. Supreme Court’s website, all attorneys appearing before the Court used to wear formal morning clothes. When a young lawyer, George Wharton Pepper, showed up in “street clothes” in the 1890s, Justice Horace Gray was overheard whispering to a colleague, "Who is that beast who dares to come in here with a gray coat?" Pepper, who was later elected to the U.S. Senate, was refused admission until he borrowed a morning coat.
In 2009 “Miss Manners,” a syndicated advice and etiquette column written by Judith Martin, responded to a reader’s question about what newly appointed Solicitor General Elena Kagan should wear when representing the federal government before the U.S. Supreme Court. By tradition, lawyers from the solicitor general’s office always wore morning attire, which consists of tails, a pearly or black vest, and striped pants, when they appeared before the high court.
Miss Manners said that while morning dress formality “symbolizes the stature of the executive branch's representative, respect for the highest members of the judicial branch, and the importance of the occasion,” it was “ridiculously out of place in a professional context” for women. “One solution has been simply to put the male clothes on females,” the columnist said. “Waitresses in fancy restaurants wear male evening clothes. Miss Manners finds the symbolism offensive, as it symbolically concedes that she is an ersatz male doing a male's job. But neither does Miss Manners approve the female slackness she sees in orchestras, where male musicians wear proper evening clothes and many female musicians slop around in anything black.”
The columnist said that unless a great designer came up with a standardized and professional-looking formal dress, morning attire for female attorneys would have to disappear. “It is a shame, but Miss Manners is afraid that the negative symbolism outweighs the positive,” she said.
Kagan accepted Miss Manners’s advice, appearing before the Court for the first time wearing a dark suit and an open-necked, sky-blue blouse, according to a report in The Washington Post. The Supreme Court justices, whose ranks she was later to join, reportedly told Kagan that she could wear whatever she wanted. The solicitor general’s office subsequently changed its policy, making morning coats optional for its female, but not its male, attorneys.
At least one of the judges on the U.S. Supreme Court has tinkered with court attire tradition in recent decades. In 1995 Chief Justice William Rehnquist added four yellow stripes to the sleeves of his black robe, reportedly in imitation of the insignia on the raiment of the lord chancellor of Great Britain who, at the time, was head of the judiciary of England and Wales. Chief Justice John Roberts, who succeeded Rehnquist, didn’t follow suit.