Tending to the garden of the legal profession

Rule of Professional Conduct 8.4.1 provides in part that, whether in representing clients or operating a law firms' operations, lawyers may not unlawfully harass or discriminate against persons on the basis of any protected characteristic. Whereas this is a standard lawyers must meet, aiming to achieve the minimum legal requirement feels woefully insufficient, especially right now.

On Memorial Day, our nation had a moment. Emotions were raised across a large portion of the population from a combination of things. Some eyes were opened. Some ire was raised. Much sadness was felt. And many flocked to the streets to protest, and voiced that they had had enough.

So, the seeds of a social evolution were sown in a garden nourished not just by the pain of George Floyd, but the blood and tears of many others who have been discriminated against based on the color of their skin. But this garden needs to be tended -- and tended to regularly -- for the seeds to blossom, flourish, and survive for seasons and years to come.

In these days of social distancing and shelter-in-place restrictions, it is fairly common to see a professional post pictures of their landscaping. These sometimes have relatively dramatic before and after pictures. This transformation is the result of substantial labor both to eliminate the weeds and other unwanted growth, and to plant what is desired. But, we also know that if the soil is not properly fertilized and watered, and the sprouts of weeds are not timely removed, that same garden is subject to being overgrown again with the unwanted. And the longer that happens, the more work it will be to return it to its desired state.

Tending to our social gardens are not so different. And it is difficult to imagine many concepts that have deeper roots than social stratification and racial subjugation. Indeed, on our soil, they predate the founding of our country; The White Lion, a privateer ship, brought the first slaves to Jamestown, Virginia in 1619. And slavery across the globe reaches back to some of the earliest civilizations, such as Mesopotamia, and is even addressed in the Code of Hammurabi, which was created in approximately 1860 B.C.

Accordingly, we will have to dig deep. And even when we no longer see these problems on the surface, we should be aware that they may be lurking underneath. It is not just unlawful discrimination that causes damage, it is the prejudice that we may not even be aware of. Bias is not just explicit, but often implicit. It could be an attempted joke or comment that targets the individual or their racial identity. It could be the application of a stereotype in an everyday encounter. Or it could be simply bad service or a lack of courtesies, especially when others around them receive better.

Of course, the most effective way to counteract discrimination is to change social norms. And that is one area where the legal profession has room to grow. Based on various surveys, there are lower percentages of people of color in leadership roles within the profession -- those with equity interests in private firms, leadership positions in public firms, and members of the bench -- than there are corresponding percentages in our general population. That is, statistically, it is easier for a white person to obtain leadership opportunities within the legal profession than it is for anybody else.

Looking at recent law school classes, this should not be attributed to the composition of those interested in entering the profession. For example, U.S. News and World Report indicated that approximately 62% of the 2019 class was white. That number is roughly equivalent to the general population numbers. So, why is it that the National Association for Law Placement reported minorities overall make up less than 10% of all partners and shareholders? And how do we ensure that these aspiring lawyers, who will soon be new associates, have a fair opportunity to succeed? Unfortunately, data shows that people of color are more likely to leave firms than their white contemporaries.

A potential step in addressing this could be routinely conducting a self-assessment to see where each person may have prejudice or bias. For example, every three years, temporary judges take the Implicit Association Test as part of their training on bench conduct and demeanor. This helps identify potential situations where a person serving on the bench may be prone to rule either in favor of or against people with different racial backgrounds. Whereas these leanings may continue to exist in the individual, the idea of going through the exercise is to create awareness so that the judge may consciously consider whether the bias or prejudice, rather than just the merits, is leading toward a decision in a particular matter.

Once lawyers have addressed this issue, it may be easier to assess their approach to firm and case management in a manner that is more conducive to allowing lawyers of color the same opportunities to develop, succeed, and help the firm do the same. Begin by presuming competence. Make sure that each lawyer receives meaningful assignments. Perhaps this can be accomplished by randomizing distribution of the more desirable assignments and trials. Otherwise, the rainmakers of each firm are signaling a lack of trust that the lawyers of color who work there simply are not trusted the same way that white lawyers are. And, it is hard to imagine anybody wanting to stay if they perceive they are not trusted. Perhaps just as importantly, firm leadership should then follow that up with meaningful training and mentoring, providing the same support to lawyers of color that their white counterparts receive.

Next, allow all to contribute their talents and be heard. A law firm's diversity program should be more than merely a promotional opportunity. Rather, lawyers of color should have opportunities to be the faces of representations and presentations. Opportunities are wasted if law firms do not utilize the talent they have. Indeed, that may be worse than not even considering hiring a person in the first place.

Also, lawyers should consider how the choices they make may reflect implicit biases. Addressing lawyers only when the subject of their race arises, routinely introducing them last, or not inviting them to participate in brainstorming sessions related to their practice areas all provide for an environment that discourages growth. Indeed, even when advocating or socializing outside the firm, lawyers' conduct may send messages of marginalization to those they work with. For example, if younger lawyers of color see partners ignoring other people of color, treating them disrespectfully, or otherwise singling them out (such as, for example, using all juror challenges on members of a particular race), it may be more difficult for the less seasoned lawyers to have confidence that they will have the same opportunities for growth that white lawyers will receive.

These are just some ideas to consider. There are countless ways we can take this moment and carry the momentum forward. This is a moment in time for the legal profession, to not just follow the standards set forth in the fairly new Rule of Professional Conduct 8.4.1, but to strive to far, far exceed this minimum threshold.

The legal profession has taken some lumps in recent years. The iconic images of Atticus Finch have faded into those of "My Cousin Vinny." And the profession's trustworthiness now ranks somewhere between that of real estate agents and car salesmen. This is our opportunity to lead. To conquer biases. To truly embrace diversity, equity and inclusion. To allow the garden of the legal profession to bloom and flourish for the benefit of all who utilize our system of justice. 