Tip-Toe through the Courtroom

In a development that may give a whole new meaning to the term "legal footnote," the Memphis Bar Association has recently been taking a close look at lawyers' feet, or more specifically, their toes. To my knowledge, almost all lawyers have toes. I personally have ten of them, five on each foot.

In so far as I know, no other lawyer or judge has ever been concerned about my toes. But the toes of some of my colleagues in the Memphis Bar have now become the subject of judicial inquiry as well as intense scrutiny by the Memphis Bar Association Board of Directors. The issue before the Memphis judges and lawyers is toe exposure, or as one national blogger put it, "toe cleavage."

Memphis trial court judges and the Memphis Bar Association Board of Directors have recently worked on a dress code for lawyers appearing in Shelby County courtrooms. One of the concerns being addressed in the formulation of a new dress code is the propriety of "open-toed shoes," or as they are sometimes called, "peep-toe pumps." These are shoes that expose a lawyer's toes, or at least a portion thereof (hence "toe cleavage"). Such provocative footware is frowned upon by some Memphis judges and lawyers who are offended by the sight of naked or semi-naked toes in the courtroom.

Well, I don't want to step on any toes, but I do not intend to flip-flop on this issue. The issue of visible toes in a courtroom may turn out to be the Achilles heel for lawyers all across the state.

I personally strongly favor a dress code for lawyers. For example, I believe that seersucker suits should not only be permissible but actually mandatory for lawyers making a court appearance between Memorial Day and Labor Day. I also strongly oppose the practice of so-called "casual days," in which lawyers show up for work or even depositions dressed down in, at best, golf shirts and khakis, and at worst, tank tops and speedos.

I say that if a suit fits, a lawyer should wear it. And if it doesn't fit, the lawyer should find a better tailor.

But while I am a strong advocate of high sartorial standards for all lawyers, I am concerned about the possible banning of naked toes or toe cleavage from Tennessee courtrooms. My concern is based on equal protection grounds. Specifically, I believe the enforcement of a ban on courtroom tippy toes could amount to blatant gender discrimination. Why? Simple. To my knowledge, the offending legal toes in question are all feminine, inasmuch as open-toed shoes are almost exclusively a part of women's footware.

Your typical toe cleavage footware is the peep-toe pump. It resembles a small slide with the woman's ankle at the top, the foot plunging downward, and the toes doing a provocative "peek-a-boo" at the bottom. We men folk do not wear peep-toe pumps. Instead, we generally wear wing tips (Air Nixons) or tasseled loafers. There is no such thing as a peep-toe wing tip or a peek-a-boo-I-see-your-toes tasseled loafer model.

The only open-toe footware available to men are sandals or flip-flops. However, in my 30 years as a lawyer, I have never seen any lawyer, male or female, appear in court wearing sandals or flip-flops. Moreover, if a male lawyer does appear in court wearing sandals, I would hope that he would have his toes fully exposed, as there is nothing geekier than the sight of a man wearing sandals with socks.

Also, not to paint with too broad a brush, but I believe that the issue of provocative toe cleavage has more to do with toenails than toes. In and of themselves, toes are not distracting or provocative or even attractive. Rather, it is the sight of painted toenails that stirs the blood and will distract the attention of a judge and/or jury. Here again, we come back to the disparate impact of a ban on toes or toe cleavage. We men folk do not paint our toenails. We may clip them from time to time, but we never paint our toenails bright red or orange, even during football season. Given the fact that our toenails are unpainted, people wouldn't look at them, even if we were wearing a pair of customized peep-toe wing tips.

Finally, I believe the banning of naked toes and toe cleavage in Tennessee courtrooms will put us all on the proverbial sartorial slippery slope. We ban naked toenails and toe cleavage today, and we'll be banning visible tattoos tomorrow.

Before you know it, the bar association will tell me that I can't appear in court wearing my seersucker suit and white bucks. Well, that's never gonna' happen. I'll give up my seersucker when they pry my cold, dead hands off my cotton jacket. And I'll give up my closed-toe, non peep-toe white bucks when they pull them off my cold dead nekkid tootsie toes.


Bill Haltom BILL HALTOM is a partner with the Memphis firm of Thomason, Hendrix, Harvey, Johnson & Mitchell. He is past president of the Tennessee Bar Association and is a past president of the Memphis Bar Association.