Sherlock Holmes and Ethical Rules Addressing Discrimination:
A Cinematic Journey
© 2017 Gregory R. Hanthorn1
In 2015, the American Bar Association amended the Model Rules of Professional
Conduct to make clear that any form of harassing or discriminatory “conduct in relation to the
practice of law” is “professional misconduct.” This program at the 2017 Section Annual
Conference of the Section of Litigation of the American Bar Association will use the lenses
provided by Sherlock Holmes movies across the decades to examine where legitimate and even
laudable “observation” ends and improper “discrimination,” “prejudice,” and “bias” begin.
Throughout the “Screening the Films” section of this paper questions will be peppered to suggest
ways the Holmes novels, short stories, movies, and television series can be used as a jumping off
point to view our own perceptions and conduct.
ENTERING THE THEATER
Before turning to the Holmesian canon, let’s set the stage with a brief examination of new
Model Rule 8.4(g) and its comments. Following multiple revisions and discussion, at the 2015
Annual Meeting of the American Bar Association Model Rule 8.4 was amended to provide:
It is professional misconduct for a lawyer to:
....
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or
discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age,
sexual orientation, gender identity, marital status or socioeconomic status in conduct
related to the practice of law. This paragraph does not limit the ability of a lawyer to
accept, decline or withdraw from a representation in accordance with Rule 1.16. This
paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
Model Rule of Professional Conduct 8.4(g): Misconduct. The phrases “harassment or
discrimination” and “conduct related to the practice of law” were addressed in the comments to
Model Rule 8.4, which were amended to add comments 3 and 4:
[3] Discrimination and harassment by lawyers in violation of paragraph (g)
undermine confidence in the legal profession and the legal system. Such discrimination
1
Any presentation by a Jones Day lawyer or employee should not be considered or
construed as legal advice on any individual matter or circumstance. The contents of this
document are intended for general information purposes only and may not be quoted or referred
to in any other presentation, publication or proceeding without the prior written consent of Jones
Day, which may be given or withheld at Jones Day's discretion. The distribution of this
presentation or its content is not intended to create, and receipt of it does not constitute, an
attorney-client relationship. The views set forth herein are the personal views of the author and
do not necessarily reflect those of Jones Day.
includes harmful verbal or physical conduct that manifests bias or prejudice towards
others. Harassment includes sexual harassment and derogatory or demeaning verbal or
physical conduct. Sexual harassment includes unwelcome sexual advances, requests for
sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The
substantive law of antidiscrimination and anti-harassment statutes and case law may
guide application of paragraph (g).
[4] Conduct related to the practice of law includes representing clients; interacting
with witnesses, coworkers, court personnel, lawyers and others while engaged in the
practice of law; operating or managing a law firm or law practice; and participating in bar
association, business or social activities in connection with the practice of law. Lawyers
may engage in conduct undertaken to promote diversity and inclusion without violating
this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining
and advancing diverse employees or sponsoring diverse law student organizations.
Amended Comments 3 and 4 to Model Rule of Professional Conduct 8.4. The comments make
clear that the intent of the amendments was to expand the scope of what constitutes “professional
misconduct” beyond the pre-amendment boundary for biased or prejudiced actions that “are
prejudicial to the administration of justice.”2 And the listed bases for improper discrimination go
beyond those frequently denominated in state statutes or in federal law. See, e.g., Va. Code
§§ 2.2-3900, et seq. (Virginia Human Rights Act) (prohibiting “unlawful discrimination because
of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions,
age, marital status, or disability” in multiple contexts including employment and education;
quote drawn from § 2.2-3900(B)(1)); O.C.G.A. §§ 45-19-21, et seq. (Fair Employment Practices
Act) (designed to “promote the elimination of discrimination against all individuals in public
employment because of such individuals' race, color, religion, national origin, sex, disability, or
age thereby to promote the protection of their interest in personal dignity and freedom from
humiliation.” § 45-19-21(a)(3)); see also federal statutes collected by the federal Equal
Employment Opportunity Commission at https://www.eeoc.gov/facts/qanda.html
The amendments to Model Rule 8.4 were met with a variety of responses. See, e.g., Amy
Mattson, “Harassment and Discrimination Now Violate ABA Model Ethics Rules,” in p. 8 of
Litigation News (Winter 2017), also posted online December 6, 2016, at:
https://apps.americanbar.org/litigation/litigationnews/top_stories/120616-ethics-harassmentdiscrimination.html; and Brad Abramson, “American Bar Association Attacks Attorney Speech
Rights,” JURIST Twenty posted online August 17, 2016, at:
http://www.jurist.org/hotline/2016/08/brad-abramson-speech-rights.php
Criticisms ranged from stating concerns that the rule has “a potential to stifle free speech and
debate” (Thomas Wilkinson, cited in “Harassment and Discrimination Now Violate ABA Model
Ethics Rules,” supra) to asserting that the adoption of the amendments illustrated “[t]he ABA's
willingness to violate the constitutionally protected freedoms of those whose interests it purports
2
Prior comment 3 to Model Rule 8.4. Other, unchanged portions of Model Rule 8.4
make clear that it is professional misconduct to “engage in conduct that is prejudicial to the
administration of justice;” and “commit a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects.” Model Rule 8.4(d) & (c).
2
to represent [and as] nothing less than shocking . . . , an example of ideology overriding any
commitment to legal reasoning or constitutional liberty” (Brad Abrahamson, “American Bar
Association Attacks Attorney Speech Rights,” supra). And a third commentator conceded that
“not everyone is going to agree with where the lines are drawn” but noted that the “amendments
are designed to be a statement that the profession takes its responsibility not to engage in this
conduct very seriously.” Gregory Hanthorn, cited in “Harassment and Discrimination Now
Violate ABA Model Ethics Rules,” supra.
While changes to the Model Rules are not self-executing and must be adopted state by
state,3 and while many states may not adopt the amended Rule or its commentary,4 the amended
Rule and comments bring into focus the need for ethical lawyers to ask themselves how they
perceive, draw inferences, make deductions, and take actions concerning other people. The
Sherlock Holmes canon, expanded to include movies based on the original 56 short stories and
four novels by Arthur Conan Doyle, provides a lens through which to examine and discuss both
appropriate and inappropriate forms of making inferences and drawing conclusions. And
because inappropriate inferences and conclusions, once acted upon, can result in harassment and
discrimination, the examination is both timely and appropriate.5 The underlying premise of this
examination is that once we as lawyers see both appropriate and inappropriate “deductions”
3
For a list of states that have adopted at least some form of the Model Rules, see
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_pro
fessional_conduct/alpha_list_state_adopting_model_rules.html. A more detailed comparison
chart, rule by rule, can be found at
http://www.americanbar.org/groups/professional_responsibility/policy/rule_charts.html
4
For example, as of January 31, 2017, neither Georgia nor Virginia has adopted the
amendments to the Rule and comments. See Georgia Rule of Professional Conduct 8.4 and
Virginia State Bar Professional Guideline 8.4. But the concerns expressed in the amendments
are far from irrelevant. For example, the Georgia Bar’s “Aspirational Statement on
Professionalism” includes a “General Aspirational Ideal” for a lawyer to aspire to “avoid all
forms of wrongful discrimination in all of my activities including discrimination on the basis of
race, religion, sex, age, handicap, veteran status, or national origin” and stating that “[t]he social
goals of equality and fairness will be personal goals for me.” General Aspirational Ideal (c),
available from Georgia Bar website online at
https://www.gabar.org/aboutthebar/lawrelatedorganizations/cjcp/lawyers-creed.cfm With or
without adoption of the amendments the underlying anti-discriminatory policies have been
embraced by the bars in many states.
5
Many types of improper harassment and discriminatory conduct in connection with the
practice of law are already illegal for a company or law firm acting as an employer whether or
not the amendments to Model Rule 8.4 are adopted. See generally, e.g., Title VII of the Civil
Rights Act of 1964, Age Discrimination in Employment Act of 1967 (ADEA), Titles I and V of
the Americans with Disabilities Act of 1990, as amended (ADA), Title II of the Genetic
Information Nondiscrimination Act of 2008 (GINA), and other statutes collected by the federal
Equal Employment Opportunity Commission at https://www.eeoc.gov/facts/qanda.html
3
illustrated by familiar fictional characters, then we will be able to turn the same lenses and
lessons upon our own behaviors, unconscious biases, and presuppositions.
SCREENING THE FILMS
Sherlock Holmes may be the ultimate fictional observer. “Typically (there are, in the
sixty stories [including the four novels], many exceptions, of course), a new client comes to the
rooms, with or without an appointment. Holmes makes deductions about the person based on his
or her manner, dress, callosities, and the mud spatters on his or her clothing. The client pours out
a problem. The rest of the story is Holmes’s unraveling of it.”6 Holmes observes, infers,
deduces, and concludes. As we compare and contrast his observations and conclusions to those
of other characters within the canon we find contrasts in approach, including the degree of
reliance, if any, to be placed upon presuppositions. Because we may be more willing to judge
the recorded approaches of time-tested, fictional characters than our own more recent actions and
presuppositions, a clear-eyed view of the fiction may found a basis for a later clear-eyed view of
our own actions and attitudes.
Drawing Conclusions From Appearance
The publication of A Study in Scarlet in Beeton’s Christmas Annual 18877 introduced the
world to the character of Sherlock Holmes. Throughout the novel Holmes and the police draw
conclusions regarding people, crimes, and events. One of the earliest conclusions is also one of
the most famous. Notice from A Study in Scarlet (whether from the novel itself, the 1954
Ronald Howard television series, or the BBC One episode “A Study in Pink”8), Sherlock
6
William DeAndrea, Encyclopedia Mysteriosa: A Comprehensive Guide to the Art of
detection in Print, Film, Radio, and Television, at 168 (entry for “Holmes, Sherlock”) (Prentice
Hall 1994).
If you run across an unowned copy of Beeton’s Christmas Annual 1887, grab it and
hold on. Only eleven complete copies are known to exist, plus about another 22 partial copies.
Auction and private sale prices have run from about $15,000 for less than complete copies in
1985 and 1997 to $156,000 from an auction of a complete copy in 2007. Sales price data taken
from http://www.bestofsherlock.com/beetons-christmas-annual.htm7 By 1951 Beeton’s
Christmas Annual 1887 had already become so rare “that in spite of advertising and inquiries in
the London Times, no copy of Beeton’s could be found for the Sherlock Holmes Exhibition held
during the Festival of Britain until a public-spirited citizen turned up with a copy he had acquired
for sixpence at a London stall.” William S. Baring-Gould, The Annotated Sherlock Holmes
(Vol. I), at 12 (Clarkson N. Potter Publisher 1967) (emphasis in original).
7
8
A very partial list of Holmesian film and television material that is readily available on
DVD appears at the end of this paper and will be used in the live presentation at the 2017
Litigation Section Annual Conference. For a more complete discussion of Holmes on film and
screen see generally Alan Barnes, Sherlock Holmes on Screen: The Complete Film and TV
History (Titan Books 2011).
4
Holmes’s explanation of his series of ratiocinations supporting his first deduction uttered to Dr.
John H. Watson, “’You have been to Afghanistan, I perceive.’”:9
“Observation with me is second nature. You appeared to be surprised
when I told you, on our first meeting, that you had come from Afghanistan.”
“You were told, no doubt.”
“Nothing of the sort. I knew you came from Afghanistan. From long habit
the train of thoughts ran so swiftly through my mind, that I arrived at the
conclusion without being conscious of intermediate steps. There were such steps,
however. The train of reasoning ran, ‘Here is a gentleman of a medical type, but
with the air of a military man. Clearly an army doctor, then. He has just come
from the tropics, for his face is dark, and that is not the natural tint of his skin, for
his wrists are fair. He has undergone hardship and sickness, as his haggard face
says clearly. His left arm has been injured. He holds it in a stiff and unnatural
manner. Where in the tropics could an English army doctor have seen much
hardship and got his arm wounded? Clearly in Afghanistan.’ The whole train of
thought did not occupy a second. I then remarked that you came from
Afghanistan, and you were astonished.”
“It is simple enough as you explain it,” I said, smiling. “You remind me of
Edgar Allen Poe’s Dupin. I had no idea that such individuals did exist outside of
stories.”10
Sherlock has decided several things about Dr. Watson based solely upon looking at him.
To what extent is it appropriate to draw conclusions based upon “looks”? What are the inherent
hazards of doing so?11
Upon careful reading, Holmes’s conclusions drawn from observations were narrowly
drawn. “When he sized up strangers, he usually made only a few deductions. The facts and
evidence before him put a limit on what he could observe and deduce. If he saw limited
evidence on a stranger, he could only make limited inferences about the stranger. Yet, Holmes
9
Quotes in this paper from the canonical works of Arthur Conan Doyle are drawn from
William S. Baring-Gould’s influential two-volume The Annotated Sherlock Holmes (William S.
Baring-Gould, editor) (Clarkson N. Potter Publisher 1967). The three-volume The New
Annotated Sherlock Holmes (Leslie S. Klinger, editor) (W.W. Norton & Co. Vols. I and II 2004,
Vol. III 2005), is also a terrific collection. Yet, just as Irene Adler will always be “The Woman”
for Sherlock Holmes, so somehow William S. Baring-Gould will always be “The Annotator” for
the author of this CLE paper. A Study in Scarlet appears at pp. 143-234 of The Annotated
Sherlock Holmes (Vol. I), and the Afghanistan quote is on page 150.
10
Annotated Sherlock Holmes (Vol. I), at 1160, 162.
Hint – read on to the “unconscious bias” problem mentioned later in this paper. And
realize that all of the negative examples of improper conclusions, biases, and prejudice are drawn
from statements made by fictional characters who no doubt “thought” that their words and
actions were appropriate.
11
5
would always justify his deductions by explaining the exact fact or detail upon which he based
his conclusion.”12 By basing his deductions upon specific, exact facts and details that could be
explained, Holmes generally avoided falling into stereotypes, bias, and prejudice.13
In one sense, observing someone is simply gathering evidence. In effect, Holmes has
made himself a percipient witness as contemplated by the Federal Rules of Evidence.14 After
observing Dr. Watson’s posture, fading tan, stiff shoulder, and a variety of other evidence,
Holmes has determined that these items have a “tendency to make a fact [Dr. Watson’s recent
service in the military in Afghanistan] more … probable than it would be without the evidence.”
Federal Rule Evidence 401(a). In effect, Sherlock has applied the Federal Rules of Evidence and
reached a conclusion.
But notice what types of observations Holmes has not made (and in general does not
make throughout the canon)—he has not proceeded to determine that all friends of John
Stamford (who introduced Watson and Holmes to each other) are drunkards and wastrels (even
though Watson and Stamford had recently met at the Criterion Bar15), or that all doctors
necessarily will make good (or bad) roommates. At least as to these observations Holmes does
not posit that anyone acted in conformity with only an assumed “habit” (contrary to the dictates
of Federal Rule of Evidence 406). Holmes’s observations and conclusions are limited to
verifiable, factual matters. Also, Holmes does not observe clients and others in order to render
moral judgments about them or as a prelude to dismissing them as beneath his notice. “Like a
12
Mark A. Williams, Sr., How to Instantly Size-Up Strangers Like Sherlock Holmes, at
145 (Real Deal Publications 2014) (emphasis added).
Indeed, it is not too far of a stretch to see that Holmes’s ability to explain the exact fact
or detail that drives his conclusions provides the same type of explanation that a lawyer
exercising a peremptory challenge should be able to provide in response to a Batson challenge.
See Batson v. Kentucky, 476 U.S. 79 (1986) (in a criminal case holding race-based reasons for
peremptory challenges unconstitutional); Edmonson v. Leesville Concrete Company, 500 U.S.
614 (1991) (extending Batson to civil cases); and J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127
(1994) (extending Batson rationale to peremptory challenges based on gender).
13
14
Or one can argue that he is acting as an expert witness pursuant to Fed. R. Evidence
702, and that the facts and observations upon which he discourses are the material upon which he
relies as contemplated by Fed. R. Evidence 703. Either analogy should serve.
15
Later in A Study in Scarlet Holmes questions a constable named John Rance who had
allowed a suspect to go free because Rance simply dismissed the man as “an uncommon drunk”
beneath his notice. Rance proves unable to provide even a basic description of the man, much to
Holmes’s chagrin. Annotated Sherlock Holmes (Vol. I), at 177. Holmes is driven to observe: “I
am afraid, Rance, that you will never rise in the force. That head of yours should be for use as
well as ornament. You might have gained your sergeant’s stripes last night. The man you held
in your hands is the man who holds the clue of this mystery, and whom we are seeking.” Id.
6
doctor, Holmes does not pass judgment on his ‘patients,’ regardless of what they might have
done to put themselves in their present predicament.”16
In A Study in Scarlet Holmes engages in a puzzling yet exhaustive study of a crime
scene. Scotland Yard Inspectors Lestrade and Gregson watch in amusement, while Watson is
befuddled. Holmes then propounds a series of deductions, including contradicting Inspector
Lestrade’s belief that the name “Rachel” was intended to be written in blood on the wall with the
final letter missing. Holmes expostulates that the scrawl “Rache” was completed and is the
German word for revenge.
How did Inspectors Lestrade and Gregson, on the one hand, and Holmes, on the other,
each test or fail to test his theories?
What does this testing or failing to test suggest?
For an interesting contrast, view either the pilot or episode one of the BBC television
series “Sherlock”,17 entitled “A Study in Pink.” Notice how Benedict Cumberbatch’s Sherlock
Holmes draws an entirely different conclusion with respect to the writing “Rache” from that
drawn by Inspector Greg Lestrade within that fictional tele-verse.18 What lesson can be learned
from the contrasting conclusions drawn by the canonical Holmes and Cumberbatch’s character?
Bias Based On An Observed Trait
Not all “conclusions” drawn from observation are valid, supportable, or even proper.
Although it may be perfectly appropriate to notice that a particular person has a particular
characteristic, care must be taken not to then draw an unreasonable or biased conclusion from
that characteristic. For example, in the short story “The Problem of Thor Bridge” characters
other than Holmes engage in the type of bias based upon national origin that is eschewed by
Model Rule 8.4(g). In the story, a British constable (Sergeant Coventry) is aware that the
husband of an apparent murder victim is an American. The constable blithely informs Holmes
and Watson that the American husband of the victim is sure to have a pair of matching pistols
(rather than only one pistol found in a case) whether they can find the second pistol or not.
Sergeant Coventry suspects the husband because “these Americans are readier with pistols than
16
David Acord, Success Secrets of Sherlock Holmes: Life Lessons from the Great
Detective, at 66 (Penguin Group 2011).
Both the pilot and first episode are available on “Sherlock: Season One”) (DVD BBC
Worldwide Americas 2010).
18
The canonical Holmes works are referenced in interesting ways in “Sherlock.” For a
useful study of the first three seasons see Valerie Estelle Frankel, Sherlock: Every Canon
Reference You May Have Missed in BBC’s Series 1-3 (Lit Crit Press 2014), and for companion
material regarding the first two seasons see Guy Adams, The Sherlock Files: The Official
Companion to the Hit Television Series (HarperCollins Publishers 2013).
17
7
our folks are.”19 In effect, Sergeant Coventry goes well beyond the boundaries of Federal Rule
of Evidence 406 (and analogous state statues such as Va. Code § 8.01-397.1 and O.C.G.A. § 244-406) to urge that the American must have had a routine practice or habit of using firearms
rashly (an assumption) and then acted in accordance with that assumed routine practice or habit.
The constable skipped right past the need to show that the activity was “a person's regular
response to repeated specific situations.”20
This bold assumption that all, or even most, members of a particular nationality share a
particular outlook, trait, or disposition is the type bias addressed in Model Rule 8.4(g), and an
arrest based on that bias would have been the type of conduct that, for a lawyer, would be
professional misconduct. Sergeant Coventry had no reason to conclude that all Americans carry
multiple firearms or that the particular American was a murderer. Note, however, that there are
inferences that could logically have been drawn. Based upon the existence of the Second
Amendment to the United States Constitution, Sergeant Coventry might well have inferred that
some form of firearms ownership was viewed as more important by many Americans than by
British citizens. And from that a further inference might have been drawn that a British citizen
would less likely than an American citizen to own a firearm. Yet the constable’s “explanation”
went beyond what was supported by facts.21
How does Sergeant Coventry’s “conclusion” demonstrate bias?
If the Sergeant actually knew at least one American who owned two firearms, would the
proposition be any more or less valid?
The author of this paper is also indebted to his colleague Daniel Merrett for pointing out
yet another subtle bias inherent in the presentation of “The Problem of Thor Bridge.” Sergeant
Coventry hales from the county town of Winchester in Hampshire, near the southern coast of
England. The narrator Watson notes that the Sergeant is “a decent, honest fellow who was not
too proud to admit that he was out of his depth.”22 Both the bluff honesty and tendency to find
oneself out of his depth conform to stereotypical views of many Londoners of their more rural
fellow countrymen. Throughout the short story Sergeant Coventry’s accent, mannerisms, and
conclusions fit the Southern-Englishman stereotype—or at least this paper’s author’s colleague
“The Problem of Thor Bridge,” pp. 588-606 of The Annotated Sherlock Holmes (Vol.
II), at 597.
19
20
This requirement is imposed by statute in some states, such as in Va. Code § 8.01397.1(B), and by case law in others.
21
Incidentally, it turns out the American does own a pair of pistols. But the bias that
Sergeant Coventry expressed and that Dr. Watson unconsciously may have echoed keeps both
from correctly identifying the shooter of Mrs. Gibson.
22
The Annotated Sherlock Holmes (Vol. II), at 597.
8
convinced him so, and because the colleague has an authentic British accent what he explained
must be true.
Relying upon bias or prejudice is a form of allowing preconceived theories to blind one
to facts. “As a detective, Holmes was aware of the dangers of locking in on a false theory—it
could lead you away from the true criminal and, even worse, convince you that an innocent
person is actually guilty. Making decisions in your business or personal life without first having
a sufficient amount of data can cause serious problems.”23 One author compares Holmes’s
insistence upon relying upon observed data as a form of avoiding the “Garbage In, Garbage Out”
or GIGO error that IBM technician George Fuechsel warned against. “GIGO is true not only in
computing but in life as well. Making decisions in your business or personal life without first
having a sufficient amount of data—and the right quality of data—can cause serious problems.
Even though Fuechsel hadn’t coined his memorable phrase at the time Conan Doyle was writing,
the author understood the importance of quality data and emphasized it throughout his Holmes
stories. In fact, he has the master detective repeat a variation of the maxim ‘Don’t theorize
before you have all the evidence’ at least three times.”24
Where in our own practices of law might we make similar mistakes based upon national
(or regional) origin? Based upon any other trait?
Unconscious Bias
The problem of unconscious bias may very well be hard-wired into our unexamined
thinking processes. “One of the things that characterizes Holmes’s thinking—and the scientific
ideal—is a natural skepticism and inquisitiveness toward the world. Nothing is taken at face
value. Everything is scrutinized and considered, and only then accepted (or not, as the case may
be). Unfortunately, our minds are, in their default state, averse to such an approach. In order to
think like Sherlock Holmes, we first need to overcome a sort of natural resistance that pervades
the way we see the world.
23
David Acord, Success Secrets of Sherlock Holmes: Life Lessons from the Master
Detective, at 30 (Penguin Group 2011).
24
Success Secrets of Sherlock Holmes, supra, at 31-32 (emphasis in original). The three
stories, by the way, are “The Adventure of the Speckled Band” (“‘I had,’ said [Holmes], ‘come
to an entirely erroneous conclusion, which shows, my dear Watson, how dangerous it always is
to reason from insufficient data.’”) (The Annotated Sherlock Holmes (Vol. I), at 261), “A
Scandal in Bohemia” (“It is a capital mistake to theorise before one has data. Insensibly one
begins to twist facts to suit theories, instead of theories to suit facts.”) (The Annotated Sherlock
Holmes (Vol. I), at 349-50), and “The Adventure of the Second Stain” (“It is a capital mistake to
theorize in advance of the facts.”) (The Annotated Sherlock Holmes (Vol. I), at 311). To these
three short stories we can add the novel A Study in Scarlet (“‘No data yet,’ [Holmes] answered.
‘It is a capital mistake to theorize before you have all the evidence. It biases the judgment.’”)
(The Annotated Sherlock Holmes (Vol. I), at 166).
9
“Most psychologists now agree that our minds operate on a so-called two-system basis.
One system is fast, intuitive, reactionary—a kind of constant fight-or-flight vigilance of the
mind. It doesn’t require much conscious thought or effort and functions as a sort of status quo
autopilot. The other is slower, more deliberative, more thorough, more logical—but also much
more cognitively costly. It likes to sit things out as long as it can and doesn’t step in unless it
thinks it absolutely necessary.
“. . . .
“When we think as a matter of course, our minds are preset to accept whatever it is that
comes to them. First we believe, and only then do we question.”25 And when we leap from
preconceived, unexamined belief to an unquestioned conclusion, we are falling prey to
unconscious bias.
“The Problem with Thor Bridge”26 presents an example of unconscious bias misleading
Dr. Watson. In a scene shortly after Sergeant Coventry has expressed his belief that Americans
are likely shooters, Watson poses a theory of the crime. By the end of the short story (and of the
excellent Granada Television adaptation staring Jeremy Brett) it turns out that Watson’s
reconstruction is correct in almost every detail save one; Watson has identified the wrong
shooter. Watson’s imaginative reconstruction put the stereotypical gun slinging American in the
shooter’s role.
25
Maria Konnikova, Mastermind: How to Think Like Sherlock Holmes, at 17-18 (Viking
Penguin 2013). Konnikova dubs the “fast, intuitive, reactionary” system “the Watson system”
and the “slower, more deliberative, more thorough, more logical” but “more cognitively costly”
system “the Holmes system.”
As an aside, “The Problem of Thor Bridge” provides clear proof that Conan Doyle’s
style goes well beyond mere “plotting.” The 1915 short story “The Red-Haired Pickpocket,” by
Frank Froëst and George Dilnot, was published seven years before Conan Doyle’s “Thor Bridge”
appeared. “The solution to ‘The Problem of Thor Bridge’, published in The Strand Magazine in
two parts in February and March 1922 and collected in The Case-Book of Sherlock Holmes, is so
similar, even down to the small mark on the side of the bridge, that it doesn’t need Sherlock
Holmes to deduce that Conan Doyle must have read the Froëst and Dilnot story.” David Brawn,
“Introduction,” pp. v-x, in F. Froëst & G. Dilnot, The Crime Club, at ix (HarperCollins 2016).
Yet while Conan Doyle may well have borrowed key elements of the plot, including those
discussed in this paper involving the suspect American, a mark on a bridge, and a victim
determined to throw suspicion elsewhere; “Red-Haired Pickpocket” is a vastly different story
from “Thor Bridge.” While “Red-Haired Pickpocket” involves a helpful dose of coincidental
recent painting, “Thor Bridge” presents a more plausible clue. “Red-Haired Pickpocket”
presents an obvious insurance motive, while “Thor Bridge” finds the motive in more nuanced
human behavior. And, of course, the interplay between Divisional Detective-Inspector Lionel
Whipple and Detective-Sergeant Newton is nothing like the byplay between Holmes and Watson
or even Holmes and the local constabulary. Cf. “The Problem of Thor Bridge,” supra, with F.
Froëst & G. Dilnot, “The Red-Haired Pickpocket,” pp. 3-20, in The Crime Club (HarperCollins
2016).
26
10
Although Watson does not echo Sergeant Coventry’s expressed beliefs about Americans
and firearms, to what extent might his reconstruction have been influenced by similar, if unstated
and even unexamined, beliefs?
Unconscious bias is difficult to overcome. “While we may be aware of our conscious
attitudes towards others, we are typically clueless when it comes to our unconscious (or implicit)
biases.”27 Simply put, unexamined biases can influence behavior, and, actions based upon those
unconscious biases can also lead to improper discrimination. Unconscious biases that are
particularly worrisome include: confirmation bias, attribution bias, availability bias, and affinity
bias.28
What steps could Watson have taken in the story or television episode to avoid his
unconscious bias? How did Holmes avoid the same misstep?
In “The Problem of Thor Bridge” Holmes tells Watson, “you have seen me miss my mark
before, Watson. I have an instinct for such things, and yet sometimes it has played me false.”29
How does this statement, which immediately precedes Holmes’s correct reconstruction, suggest
that Holmes is constantly attempting to deal with his own unconscious biases?
Holmes’s quote continues, “[O]ne drawback of an active mind is that one can always
conceive alternative explanations which would make our scent a false one. And yet—and yet—
Well, Watson, we can but try.”30 And yet—and yet—“[g]ood intentions are not enough; if you
are not intentionally including everyone by interrupting bias, you are unintentionally excluding
someone.”31
And confronting and overcoming unconscious bias is a process, not a one-time event.
Individual behavior changes that can expose and address unconscious bias include deliberately
doubting and challenging your own objectivity (much as Holmes admitted that his “instinct for
such things [has] sometimes played me false”), deliberately exposing yourself to models and
images that counter stereotypes, shifting perspectives, seeking commonalities with colleagues
and others “who have different social identities from you,” and similar techniques.32 While
Holmes may at times try to overcome unconscious bias, and discourses throughout the canon
upon these types of imaginative techniques and thought experiments to combat bias, even he
Kathleen Nalty, “Confronting Unconscious Bias,” pp. 27-34 in The Federal Lawyer
(January/February 2017), at 27.
27
28
Nalty, “Confronting Unconscious Bias,” supra, at 28.
29
The Annotated Sherlock Holmes (Vol. II), at 605 (emphasis added).
30
The Annotated Sherlock Holmes (Vol. II), at 605.
31
K. Nalty, “Strategies for Confronting Unconscious Bias,” supra, at 33.
32
The behavior changes listed above are drawn from among those discussed in K. Nalty,
“Strategies for Confronting Unconscious Bias,” supra, at 32-33 (quoted phrase from p. 33).
11
falls victim to it. Perhaps one of the most famous Holmes short stories is “A Scandal in
Bohemia,”33 the story in which Irene Adler is introduced. The story ends by noting “how the
best plans of Mr. Sherlock Holmes were beaten by a woman’s wit. He used to make merry over
the cleverness of women, but I have not heard him do it of late. And when he speaks of Irene
Adler, or when he refers to her photograph, it is always under the honourable title of the
woman.”34 How does the manner in which Irene Adler Norton outwits Holmes during the course
of the story demonstrate that Holmes had not entirely conquered his unconscious biases? How
do the concluding lines note both that (i) Holmes has made progress combating an unconscious
bias against women, and (ii) vestiges of his (and Watson’s) unconscious bias remain?35
In “A Scandal in Bohemia” Holmes notes: “It is a capital mistake to theorise before one
has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.”36
How did Holmes’s failure to follow his own advice led to his being outwitted at the end of the
story by Irene Adler Norton?
And what does Holmes’s observation about “twist[ing] fact to suit theories” point out
about the dangers of unconscious bias?
To the extent that Holmes did overcome unconscious bias, one can credit self-awareness.
“Watson says it admirably. Holmes, rather than being a mere machine, and something scarcely
human, was a man even as you and I—but he had himself well in hand. He knew himself, and,
like the old Greek, had attained the mastery of self and serenity of spirit that are the results of
self-knowledge.”37
Conversely, attorneys and judges who do not seek to uncover their own unconscious
biases can wind up appearing clueless when those biases are exposed publicly. For example, in
December of 2015 a judge was quoted as saying that he was “absolutely baffled” when people
33
The story appears in The Annotated Sherlock Holmes (Vol. I), at pp. 346-367.
34
The Annotated Sherlock Holmes (Vol. I), at 367.
For a different view from that expressed above, see S.C. Roberts, “Sherlock Holmes
and the Fair Sex,” pp. 177-199 in Baker Street Studies, at 194 (H.W. Bell, Ed.) (Otto Penzler
Books 1934) (urging that the moniker of “the woman” for Irene Adler Norton is not a negative
observation regarding all other women, but instead “is a purely intellectual tribute—an outburst
of admiration for the woman who outwitted him. To the scale of Holmes’ emotional values it
has no kind of relevance.”). While S.C. Roberts is correct to note that “the common impression
that Holmes was a misogynist or that women only interested him as ‘cases’” (id. at 193) is
overstated, by the twenty-first century one cannot help but look back and see that Holmes and
Watson did not entirely escape the prejudices of their era.
35
36
The Annotated Sherlock Holmes (Vol. I), at 349-50.
George Simmons, “Sherlock Holmes—The Inner Man,” pp. 42-47, in Sherlock Holmes
by Gas-Lamp: Highlights from the First Four Decades of The Baker Street Journal, at 44 (ed.
Philip Shreffler) (The Baker Street Irregulars 1989).
37
12
took offense at his comments in open court, including turning to the gallery during a domestic
violence felony assault trial during the testimony of the witness/victim and stating, “I’m sorry
folks, but I can’t slap her around to make her talk louder,” and musing aloud while sentencing a
defendant, “[h]as anything good ever come out of drinking, except for sex with a pretty girl?”38
The judge’s apparent bafflement at how anyone could have taken offense will likely, itself, prove
baffling to most readers of this paper; yet hopefully this will serve as a prod to examine our own
preconceptions to see if similar unexamined and unstated attitudes are lurking—and well before
those unexamined, unstated attitudes lead to utterances that get picked up in national legal
blawgs or even hard copy publications.
Draw Your Own Conclusions
Throughout the Holmes canon, Sherlock does not simply accept at face value what is
reported to him by others. Instead, in order to draw conclusions, we see him examining minute
details himself.
In The Hound of the Baskervilles, Holmes and Watson each carefully examine Dr. Henry
Mortimer’s walking stick. What conclusions does each correctly draw as presented in both the
novel and the familiar Basil Rathbone film?
In first the Holmes novel, A Study in Scarlet, Holmes travels quickly and immediately to
the scene of a murder so he can engage in firsthand observations. After walking through the
scene, he makes a number of observations regarding the gender, nationality, and physical
description of the killer:
“I’ll tell you one thing which may help you in the case,” [Holmes]
continued, turning to the two detectives [Inspectors Gregson and Lestrade].
“There has been murder done, and the murderer was a man. He was more than six
feet high, was in the prime of life, had small feet for his height, wore coarse,
square-toed boots and smoked a Trichinopoly cigar. He came here with his victim
in a four-wheeled cab, which was drawn by a horse with three old shoes and one
new one on his off fore leg. In all probability the murderer had a florid face, and
the finger-nails of his right hand were remarkably long. These are only a few
indications, but they may assist you.”
Lestrade and Gregson glanced at each other with an incredulous smile.
“If this man was murdered, how was it done?” asked the former.
“Poison,” said Sherlock Holmes curtly, and strode off. “One other thing,
Lestrade,” he added, turning round at the door: “‘Rache,’ is the German for
‘revenge;’ so don’t lose your time looking for Miss Rachel.”
With which Parthian shot he walked away, leaving the two rivals openmouthed behind him.39
38
Online articles containing the quotes, last accessed February 27, 2017, can be found at
www.adn.com/crime-justice/article/nome-judge-admits-inappropriate-comments-recommendedcensure/2015/12/11/
39
The Annotated Sherlock Holmes (Vol. I), at 172.
13
Later, in the cab, Holmes explains to Watson the bases for his conclusions:
“You amaze me, Holmes,” said I [Watson]. “Surely you are not as sure as
you pretend to be of all those particulars which you gave.”
“There’s no room for a mistake,” he answered. “The very first thing which
I observed on arriving there was that a cab had made two ruts with its wheels
close to the curb. Now, up to last night, we have had no rain for a week, so that
those wheels which left such a deep impression must have been there during the
night. There were the marks of the horse’s hoofs, too, the outline of one of which
was far more clearly cut than that of the other three, showing that that was a new
shoe. Since the cab was there after the rain began, and was not there at any time
during the morning—I have Gregson’s word for that—it follows that it must have
been there during the night, and, therefore, that it brought those two individuals to
the house.”
“That seems simple enough,” said I; “but how about the other man’s
height?”
“Why, the height of a man, in nine cases out of ten, can be told from the
length of his stride. It is a simple calculation enough, though there is no use my
boring you with figures. I had this fellow’s stride both on the clay outside and on
the dust within. Then I had a way of checking my calculation. When a man writes
on a wall, his instinct leads him to write about the level of his own eyes. Now that
writing was just over six feet from the ground. It was child’s play.”
“And his age?” I asked.
“Well, if a man can stride four and a-half feet without the smallest effort,
he can’t be quite in the sere and yellow. That was the breadth of a puddle on the
garden walk which he had evidently walked across. Patent-leather boots had gone
round, and Square-toes had hopped over. There is no mystery about it at all. I am
simply applying to ordinary life a few of those precepts of observation and
deduction which I advocated in that article. Is there anything else that puzzles
you?”
“The finger nails and the Trichinopoly,” I suggested.
“The writing on the wall was done with a man’s forefinger dipped in
blood. My glass allowed me to observe that the plaster was slightly scratched in
doing it, which would not have been the case if the man’s nail had been trimmed.
I gathered up some scattered ash from the floor. It was dark in colour and
flakey—such an ash as is only made by a Trichinopoly. I have made a special
study of cigar ashes—in fact, I have written a monograph upon the subject. I
flatter myself that I can distinguish at a glance the ash of any known brand, either
of cigar or of tobacco. It is just in such details that the skilled detective differs
from the Gregson and Lestrade type.”
“And the florid face?” I asked.
“Ah, that was a more daring shot, though I have no doubt that I was right.
You must not ask me that at the present state of the affair.”
I passed my hand over my brow. “My head is in a whirl,” I remarked; “the
more one thinks of it the more mysterious it grows. How came these two men—if
14
there were two men—into an empty house? What has become of the cabman who
drove them? How could one man compel another to take poison? Where did the
blood come from? What was the object of the murderer, since robbery had no part
in it? How came the woman’s ring there? Above all, why should the second man
write up the German word RACHE before decamping? I confess that I cannot see
any possible way of reconciling all these facts.”
My companion smiled approvingly.
“You sum up the difficulties of the situation succinctly and well,” he said.
“There is much that is still obscure, though I have quite made up my mind on the
main facts. As to poor Lestrade’s discovery it was simply a blind intended to put
the police upon a wrong track, by suggesting Socialism and secret societies. It
was not done by a German. The A, if you noticed, was printed somewhat after the
German fashion. Now, a real German invariably prints in the Latin character, so
that we may safely say that this was not written by one, but by a clumsy imitator
who overdid his part. It was simply a ruse to divert inquiry into a wrong channel.
I’m not going to tell you much more of the case, Doctor. You know a conjuror
gets no credit when once he has explained his trick, and if I show you too much of
my method of working, you will come to the conclusion that I am a very ordinary
individual after all.”40
In what manner are Holmes’s inferences acceptable? How have overcoming bias and
overcoming prejudice helped him to arrive at sound conclusions?
Are any of these types of inferences inappropriate for a lawyer to make in connection
with the practice of law? If so, which ones and why?
In “The Red-Headed League,” prospective client Jabez Wilson is eyeballed by Holmes,
who then correctly describes Wilson’s past career as a laborer, recent career involving writing,
and travels to China:
The portly client puffed out his chest with an appearance of some little
pride and pulled a dirty and wrinkled newspaper from the inside pocket of his
greatcoat. As he glanced down the advertisement column, with his head thrust
forward and the paper flattened out upon his knee, I [Watson] took a good look at
the man and endeavoured, after the fashion of my companion, to read the
indications which might be presented by his dress or appearance.
I did not gain very much, however, by my inspection. Our visitor bore
every mark of being an average commonplace British tradesman, obese,
pompous, and slow. He wore rather baggy grey shepherd’s check trousers, a not
over-clean black frock-coat, unbuttoned in the front, and a drab waistcoat with a
heavy brassy Albert chain, and a square pierced bit of metal dangling down as an
ornament. A frayed top-hat and a faded brown overcoat with a wrinkled velvet
collar lay upon a chair beside him. Altogether, look as I would, there was nothing
40
The Annotated Sherlock Holmes (Vol. I), at 173-74
15
remarkable about the man save his blazing red head, and the expression of
extreme chagrin and discontent upon his features.
Sherlock Holmes’ quick eye took in my occupation, and he shook his head
with a smile as he noticed my questioning glances. “Beyond the obvious facts that
he has at some time done manual labour, that he takes snuff, that he is a
Freemason, that he has been in China, and that he has done a considerable amount
of writing lately, I can deduce nothing else.”
Mr. Jabez Wilson started up in his chair, with his forefinger upon the
paper, but his eyes upon my companion.
“How, in the name of good-fortune, did you know all that, Mr. Holmes?” he
asked. “How did you know, for example, that I did manual labour. It’s as true as
gospel, for I began as a ship’s carpenter.”
“Your hands, my dear sir. Your right hand is quite a size larger than your
left. You have worked with it, and the muscles are more developed.”
“Well, the snuff, then, and the Freemasonry?”
“I won’t insult your intelligence by telling you how I read that, especially
as, rather against the strict rules of your order, you use an arc-and-compass
breastpin.”
“Ah, of course, I forgot that. But the writing?”
“What else can be indicated by that right cuff so very shiny for five
inches, and the left one with the smooth patch near the elbow where you rest it
upon the desk?”
“Well, but China?”
“The fish that you have tattooed immediately above your right wrist could
only have been done in China. I have made a small study of tattoo marks and have
even contributed to the literature of the subject. That trick of staining the fishes’
scales of a delicate pink is quite peculiar to China. When, in addition, I see a
Chinese coin hanging from your watch-chain, the matter becomes even more
simple.”
Mr. Jabez Wilson laughed heavily. “Well, I never!” said he. “I thought at first that
you had done something clever, but I see that there was nothing in it after all.”
“I begin to think, Watson,” said Holmes, “that I make a mistake in
explaining. ‘Omne ignotum pro magnifico,’ you know, and my poor little
reputation, such as it is, will suffer shipwreck if I am so candid. Can you not find
the advertisement, Mr. Wilson?”41
41
The Annotated Sherlock Holmes (Vol. I), at 419-20. Incidentally, for a contrasting
view on the validity of tattoo marks as a means of inferring occupation, see Inspector
Barraclough’s rejoinder in Frank Froëst & George Dilnot, “Pink-Edged Notepaper,” pp. 150167, in The Crime Club, at 153 (HarperCollins 2016; first published in book form by Eveleigh
Nash 1915, first American publication 1929) (“’You’re a good chap, Cranley, but carrying
deductions too far will bring you into trouble one day. An anchor tattooed on a man’s hand
doesn’t prove that he is, or has been, a sailor, but it’s a mark of identification.’”).
16
Notice the quality of Watson’s initial inferences. How do Watson’s observations that Mr.
Wilson is “an average commonplace British tradesman, obese, pompous, and slow” fall short of
genuine observation? How do Holmes’s inferences differ from Watson’s? Assume for a
moment that each of Holmes’s inferences is acceptable. What unacceptable or prejudicial
inferences would a lesser mind than Holmes’s (within the fiction of the series) be tempted to
draw? What keeps Holmes from falling into these prejudicial, bias traps?
Social Class and “Ins” Versus “Outs”
The canonical Holmes was often a bit at odds with his Victorian milieu. “Holmes’s
clients are an eclectic array, coming from every spectrum of society. In the early days, Holmes’s
clientele came from the mostly lower and middle classes and the police, but as his fame and
reputation grew, so did the status of those who came to Baker Street for help. Throughout the
stories, Homes occasionally name-drops the king, the pope, a government official, and
sometimes even the government itself, which has used his services. Wealthier clients often
bestow great rewards upon him, but the Great Detective doesn’t take these cases for the money.
Nor does he turn away a poor man or woman. ‘I play the game for the game’s own sake,’ he
says. It’s the problem that draws his attention, not the profit.”42
And when he chose to differentiate between upper and lower classes, Holmes did not do
so in a typically Victorian mode. “With all the quirks that comprise Holmes’ personality—and
there are many—his lack of partiality to London’s upper or lower class speaks well of him. If
there existed any hesitation on the part of the detective to work with anyone, it was the members
of the upper class who made him think twice, not the lower class.”43
In “The Adventure of the Three Garridebs” we learn that Holmes had even turned down a
knighthood that had been offered to him in June of 1902.44 In “The Adventure of the BrucePartington Plans” Holmes reiterated that he had no “fancy to see [his] name in the next honours
list,” although at the end of the story he did spend “a day at Windsor” where he received a
“remarkably fine emerald tie-pin . . . from a certain gracious lady in whose interests he had once
been fortunate enough to carry out a small commission.”45 Holmes’s willingness to refuse a
knighthood may have been an example of fiction improving upon reality, for in the same month
and year the fictional Holmes turned down a knighthood, Conan Doyle’s resolve to decline one
had been overcome.46 Conan Doyle had initially decided that he would be willing “to accept an
42
Steven Doyle and David Crowder, Sherlock Holmes for Dummies, at 139 (Willey
Publishing 2010).
43
Trish White Priebe, A Sherlock Holmes Devotional: Uncovering the Mysteries of God,
at 153 (Shiloh Run Press 2015).
44
The Annotated Sherlock Holmes (Vol. II), at 643.
The Annotated Sherlock Holmes (Vol. II), at 437, 452. The “certain gracious lady”
was doubtless Queen Victoria.
45
46
The honor was not proffered for his Sherlock Holmes stories, but in recognition of
services that included Conan Doyle’s work in 1900 as an unpaid, senior physician in
17
award as a Companion of the British Empire. But not a knighthood.”47 In June of 1902 Conan
Doyle relented. “In that month he had been invited to dinner and was placed by royal command
at Edward VII’s side. Conan Doyle discovered a kindred spirit: energetic and clear-headed, if a
bit too loud at times. He decided that refusing the honor would be a public insult. So in October
he bent the knee at Buckingham Palace and was dubbed Sir Arthur Conan Doyle.”48
Intriguingly, although Holmes declined British honors, we learn in “The Adventure of the
Golden Pince-Nez” that Holmes did accept the French Order of the Legion of Honour as a result
of “the tracking and arrest of Huret, the Boulevard assassin.”49 So Holmes was not completely
averse to recognition.
In addition to having an idiosyncratic view of what honors he would or would not accept,
Holmes also differed from the Victorian norm in how he addressed those with (or without) social
clout or status. Reversing the norm, the higher the social class of a client the more likely Holmes
was to be rude to or dismissive of that client. Near the end of “A Scandal in Bohemia,” the King
of Bohemia is highly aware of the rules of status when he says, “Would she [Irene Adler Norton]
not have made an admirable queen? Is it not a pity she was not on my level?” Holmes replies,
“From what I have seen of the lady, she seems, indeed, to be on a very different level to Your
Majesty.”50 Holmes assesses both the king and the commoner based upon their actions, not their
titles.51
Bloemfontein, South Africa during an enteric fever epidemic as well as for his writings in
support of the British position in the Boer War. See Bill Peschel, Sherlock Holmes Edwardian
Parodies and Pastiches I: 1900-1914, at 102-03 (editor’s note for 1902) (Peschel Press 2015).
47
Peschel, Sherlock Holmes Edwardian Parodies and Pastiches I: 1900-1914, supra, at
103.
48
Peschel, Sherlock Holmes Edwardian Parodies and Pastiches I: 1900-1914, supra, at
102-03; see also Michael and Mollie Hardwick, The Sherlock Holmes Companion, at 226-27
(noting that Conan Doyle might have refused the knighthood but for his mother’s “insistence that
refusal would have been an insult to the King.”) (Bramhall House 1962).
49
The Annotated Sherlock Holmes (Vol. II), at 350. Leslie Klinger notes that Holmesian
scholar Trevor Hall “guess[ed] that Holmes accepted the Legion of Honour in tribute to his
grandmother, the sister of the French artist Vernet.” Leslie Klinger (editor), The New Annotated
Sherlock Holmes (Vol. II), at 1581, n.2.
50
The Annotated Sherlock Holmes (Vol. I), at 367.
For a dissenting view to the above, see Bernard Darwin, “Sherlockiana: The Faith of a
Fundamentalist,” pp. 74-81, in Seventeen Steps to 221B: A Sherlockian Collection by English
Writers, at 78 (James Edward Holroyd, Ed.) (Otto Penzler Books 1967) (“We always think of
[Holmes] as a man of a highly democratic turn of mind, who almost too consciously spurned
personages of high rank. He turned brusquely away when the King of Bohemia extended his
hand to him; he appeared to be bored with the long list of a Duke’s titles; he refused a
knighthood. . . . And yet I have always had a notion that this was to some extent a pose. In his
51
18
How do social convention and individual merit sometimes conflict? And what does
Holmes’s apparent, icy politeness in the face of a claim to merit-due-to-status communicate?
When is bowing to (or rising because of) convention appropriate? What boundaries
exist?
In the 2004 television movie “Sherlock Holmes and the Case of the Silk Stocking,” the
titled Lady Helhoughton proves unable even to identify (at first) her own daughter Miranda
because the daughter has been dressed in clothes more appropriate to a working woman. Holmes
caustically forces Lady Helhoughton to take another look.
How had Holmes been able to tell that the woman was, in fact, Lady Helhoughton’s
daughter?
How do biases or assumptions based upon perceived class distinctions interfere with our
own perceptions?
Class and social status can fuel “in group” versus “out group” dynamics. Notice that the
list of traits in amended Model Rule 8.4(g)– race, sex, religion, national origin, ethnicity,
disability, age, sexual orientation, gender identity, marital status, and socioeconomic status 52 –
either are or have been used to define people outside of one or more privileged “in groups.”
What Maria Konnikova calls the “Watson system” of processing information allows assumptions
about members of “out” groups to drive conclusions and behavior simply because the
assumptions are not examined.53 While “the Holmes system” takes more time and is “more
cognitively costly,”54 it yields infinitely superior results.
Generalizing just a bit, how do our own biases or assumptions based upon a person being
within an “out” group interfere with our own perceptions of that person?
secret heart I believe that he had social aspirations, and that . . . he longed for some more exalted
lineage than the country squires whom he claimed as his ancestors.”).
Much of this list appeared in former Comment 3 to Model Rule 8.4 (“A lawyer who, in
the course of representing a client, knowingly manifests by words or conduct, bias or prejudice
based upon race, sex, religion, national origin, disability, age, sexual orientation or
socioeconomic status violates paragraph (d) when such actions are prejudicial to the
administration of justice. . . .”). The amendments expanded the list of impermissible bases for
discrimination to include gender identity, and moved the list into a new subsection 8.4(g) as an
independent basis for discipline. Before the amendments, discrimination based upon the list was
examined as one possible form of “conduct that is prejudicial to the administration of justice.”
Model Rule 8.4(d).
52
53
M. Konnikova, Mastermind, supra, at 18.
54
M. Konnikova, Mastermind, supra, at 18.
19
While Holmes did not kowtow to royalty or tug his forelock to the socially elite, he also
did not go overboard in the other direction. For example, even when Holmes was disgusted with
the King of Bohemia at the end of a “Scandal in Bohemia,” Holmes’s words, as noted above,
remained within the bounds of propriety. He did not fall into the trap that has, from time to time,
caught contemporary lawyers.55
As a final aside, Arthur Conan Doyle’s own life may provide an interesting glimpse into
why his fictional detective did not appear to share some of the common prejudices of his time;
Holmes’s creator could rise above ethnic and national prejudice as well. In 1906 Conan Doyle
took up the cause of an imprisoned disbarred junior barrister named George Edalji, who “came
from a quiet, mixed-race family: his mother was Anglo-Saxon; his father, a Parsee Indian, was a
minister with the Church of England.”56 George Edalji had been convicted of repeated nocturnal
cattle mutilations and writing abusive letters to local clergy other than his father, and both the
investigation and prosecution had been fueled by distrust for “the elder Edalji’s [George’s
father’s] Parsee heritage.”57 The initial sentences of Conan Doyle’s defense of George Edalji
could easily have come from the Holmes canon: “The first sight which I ever had of Mr. George
Edalji was enough to convince me both of the extreme improbability of his being guilty of the
crime for which he was condemned, and to suggest some at least of the reasons which had led to
his being suspected.”58 Conan Doyle goes on to note that he observed both the marked
astigmatism that made Edalji unlikely to have carried out the evening cattle assaults and Edalji’s
resulting “vacant, bulge-eyed, staring appearance [due to the uncorrected astigmatism], which,
when taken with his dark skin, must have made him seem a very queer man to the eyes of an
English village, and therefore to be associated with any queer event. There, in a single physical
See, e.g., Kathryn Nadro, “‘Maelstrom of Misconduct’ Generates Bevy of Bench
Slaps,” posted January 19, 2016, on the page of the Ethics and Professionalism Committee of the
ABA Section of Litigation (available online at
http://apps.americanbar.org/litigation/committees/ethics/articles/winter2016-0116-maelstrommisconduct-generates-bevy-bench-slaps.html). Cases referenced include Zappin v. Comfort,
(N.Y. Slip Op. 51399(u), Sept. 18, 2015) (attorney accusing judge repeatedly of lying, including
stating in open court to prior judge, “I am tired of these lies coming from you on the record.”);
and In re Dixon, Case No. 33,713 (Supreme Court of New Mexico August 24, 2015) (public
censure regarding attorney who, while a member of the Disciplinary Board of the New Mexico
bar, allegedly drove his car in a threatening manner to make a judge believe the attorney was
about to run him down).
55
56
Dick Riley and Pam McAllister, The Bedside Companion to Sherlock Holmes: A
Unique Guide to the World’s Most Famous Detective, at 29 (Barnes & Noble 1998 & 2005).
57
A solid summary of the Edalji case can be found online at
https://britishheritage.com/sir-arthur-conan-doyle-and-the-case-of-george-edalji/ (last visited
February 27, 2017).
Arthur Conan Doyle, “The Case of Mr. George Edalji,” available online at
http://gutenberg.net.au/ebooks12/1202671h.html#pt1 (last visited February 27, 2017).
58
20
defect, lay the moral certainty of his innocence, and the reason why he should become the
scapegoat.”59
Conan Doyle “believed a serious miscarriage of justice had occurred and devoted himself
to clearing the man’s name and recovering his position as junior barrister. After great effort
worthy of his fictional detective, [Conan Doyle] gained the public’s sympathy for George Edalji,
though not an official reparation, and, more importantly, stirred up enough outrage throughout
the nation to justify creation of the Court of Criminal Appeal.”60 The racial and social prejudices
of his day had not blinded him to George Edalji’s plight.
OUR “FINAL PROBLEM”
The examples within this paper do not scratch the surface of the good and bad ways in
which deductions and inferences pile up in the Sherlock Homes novels, stories, movies, and
television episodes. As you encounter others, consider applying the same type of analysis set
forth above to how we see Holmes, various members of Scotland Yard, Dr. Watson, and passing
characters each view the world. And then see how we can apply some of the same analytics to
our own perceptions, particularly as we interact with others in the practice of law.
Dr. John Watson famously referred to Holmes as “the best and the wisest man whom I
have ever known.”61 Much of Holmes’s wisdom derived from his unwillingness to let
preconceived notions interfere with what he actually observed of people, events, and evidence,
coupled with his willingness to constantly test old theories with new facts. May we do the same.
And yet Holmes was also a creature trapped within his creator’s time. This paper has not
attempted to present a “balanced” view of Holmes and has, for the most part, avoided his
multiple failures to apply his own logic and his reliance upon views of certain foreigners,
women, the working class, and others to pervade his speech and his conduct.62
Arthur Conan Doyle, “The Case of Mr. George Edalji,” available online at
http://gutenberg.net.au/ebooks12/1202671h.html#pt1 (last visited February 27, 2017).
59
60
The Bedside Companion to Sherlock Holmes, supra, at 29.
These are the last words of “The Final Problem,” pp. 301-318 in The Annotated
Sherlock Holmes (Vol. II), at 317. Of course, “The Final Problem” did not remain the final
Holmes short story. Sherlock returned seemingly from the dead in “The Adventure of the Empty
House.”
61
As but one example, in “The Adventure of the Second Stain” Holmes notes that the
wife of a suspect had “manoeuvred to have the light at her back” so that Holmes and Watson
could not “read her expression.” After Watson notes that “she chose the one chair in the room,”
Holmes mansplains: “And yet the motives of women are so inscrutable. You remember the
woman at Margate whom I suspected for the same reason. No powder on her nose—that proved
to be the correct solution. How can you build on such a quicksand? Their most trivial action may
mean volumes, or their most extraordinary conduct may depend upon a hairpin or a curlingtongs.” The Annotated Sherlock Holmes (Vol. I), at 311.
62
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If and as we interact with the original novels and short stories, in particular, we can take
advantage of the opportunity to observe how tone deaf and bigoted even a literary hero can
sound to our modern ears.
How might we sound a generation from now? Three generations from now?
The game is afoot as opportunities for observation abound. The rest is up to us.
Gregory Hanthorn
Jones Day
1420 Peachtree Street, NE
Suite 800
Atlanta, Georgia 30309
(404) 521-3939
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Movies and Television Clips Used in 2017 SAC Presentation
“The Adventure of the Red-Headed League” from “The Adventures of Sherlock Holmes”
(Granada TV 1985) (Jeremy Brett as Sherlock Holmes and David Burke as Dr. John Watson)
(DVD MPI Home Video 2000).
“The Case of the Cunningham Heritage” (Guild Films 1954) (Ronald Howard as Sherlock
Holmes and Howard Merion Crawford as Dr. John Watson) (Episode 1 of 39-Episode Television
Series) on “Sherlock Holmes: The 1954-55 Television Series”) (DVD Mill Creek Entertainment
2005).
“The Crucifer of Blood” (Agamemnon Films 1991) (Charlton Heston as Sherlock Holmes and
Richard Johnson as Dr. John Watson) (a loose adaptation of “The Sign of Four”) (DVD TNT
Originals 2010).
“The Hound of the Baskervilles” (20th Century Fox Film Corporation 1939) (Basil Rathbone as
Sherlock Holmes and Nigel Bruce as Dr. John Watson) (DVD MPI Home Video 2004).
“The Problem of Thor Bridge” from “The Casebook of Sherlock Holmes” (Granada TV 1991)
(Jeremy Brett as Sherlock Holmes and Edward Hardwicke as Dr. John Watson) (DVD Granada
Media 2004).
“Sherlock Holmes and the Case of the Silk Stocking” (BBC One 2004) (Rupert Everett as
Sherlock Holmes, and Ian Hart as Dr. John Watson) (DVD BBC Video 2204).
“The Sign of Four” (RKO Pictures 1932) (Arthur Wontner as Sherlock Holmes and Ian Hunter
as Dr. John Watson) (DVD Alpha Video 2003).
“A Study in Pink” from “Sherlock” (BBC One 2010) (Benedict Cumberbatch as Sherlock
Holmes and Martin Freeman as Dr. John Watson) on “Sherlock: Season One”) (DVD BBC
Worldwide Americas 2010).
“A Study in Scarlet” from “Sherlock Holmes” (BBC 1968) (Peter Cushing as Sherlock Holmes
and Nigel Stock as Dr. John Watson) on “The Sherlock Holmes Collection” (DVD A&E
Television Networks 2009).
Archived interview with Arthur Conan Doyle taken from “Sherlock Holmes: The Great
Detective” Special Feature included in “The Sherlock Holmes Collection” (A&E Television
Networks 2009).
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