Trial Magazine

In recent months, the landscape of our familial, social, political, and physical lives has been transformed with little evidence of when or if there will be a return to what we understand as “normal.” As our nation continues to reckon with systemic racism and socioeconomic disparities worsened by the pandemic, attorneys have a unique opportunity to bring about meaningful change and work toward true equity and equality for all clients and for all colleagues.¹ To do that, the legal profession must be proactive from the top down. Here are some basic building blocks to get you on that path.

Advancing Equity, One Client at a Time

As attorneys, we decide what experience our clients will have with us and, in many ways, with the legal system itself. There are many stories underlining the lack of accessibility, inequitable representation, biased and microaggressive behavior and language (brief but repeated slights and insults based on race, gender, or sexual orientation), and in some cases, outright dismissiveness and rudeness toward marginalized people and communities.²

For example, an attorney of Latin American descent may be repeatedly mistaken as the interpreter or a female attorney may be assumed to be the court reporter. Other examples include referring to women as “girls,” “honey,” and “sweetheart” and addressing women and people of color by their first name instead of using an appropriate honorific.

There are no quick or easy fixes, yet opportunities exist every day to challenge how the system operates. The justice gap—the difference between legal needs and the services available—has been well-documented.³ When you help someone or a group from a marginalized population successfully access legal representation, you give them a chance to be seen and heard.

Equity considers the historical context responsible for current disparities and makes adjustments to meet the social, economic, educational, and emotional gaps created by that context. To create a more equitable and meaningful experience for clients, legal professionals first must recognize that we have different cultural experiences, backgrounds, assumptions, and biases based on our experiences.⁴ Our ability to mitigate bias and microaggressive behavior is anchored in our willingness to 

• engage in mindfulness activities such as pausing, slowing down, and reflecting on what’s happening in the moment⁵
• cultivate self-awareness about our clients’ and our own backgrounds, experiences, beliefs, and assumptions
• understand our own cultural positions and how they differ from and are similar to those of others⁶
• understand the differences in the social and economic reality in which attorneys and clients may live and work.⁷

On the surface, these brief strategies may seem easily attainable, but application often is fraught with unspoken fears, feelings of vulnerability, unconscious (implicit) bias,⁸ and the need to be in control. We all want to be in control of our lives, decisions, and actions—this is a natural desire connected to our sense of self and the need for safety. But how does the need for control intersect with our sense and position of power? And what obstacles to equity are formed by that intersection?

Barriers and Bias

When people of color and other marginalized groups enter the legal profession, they often do not begin on a level playing field. According to a 2020 American Bar Association report, 86% of all lawyers are non-Hispanic white, 5% are Black, 5% are Hispanic, 2% are Asian, and 0.4% are Native American.⁹ The report also revealed that as minority populations have grown in the U.S., minority representation in the legal profession has not kept pace.¹⁰

It’s not just racial minorities who are impacted. A 2015 nationwide literature review conducted by the Washington State Bar Association examined the status of women, people of color, LGBTQ people, and people with disabilities in the legal profession and found that “the problem . . . is not simply a matter of diversity, nor is the solution anchored in creating a pipeline to recruit more diverse lawyers. Instead, people from underrepresented communities face multiple barriers—linked to larger social, economic and political forces—to successful legal careers.”¹¹

The literature review also found that female attorneys, attorneys of color, and LGBTQ attorneys face significant barriers to securing leadership roles and that their cases can be negatively impacted due to their perceived or known social identity.¹²

The social, economic, academic, and emotional impact, and, for some groups, the harm physically incurred simply because of their identity influence ways of existing, engaging with others, and making decisions.

These factors can be a recipe for bias, oppression, and exclusion of people and groups outside of the dominant identity. So often, whether we acknowledge it or not, we hold affinity biases (a positive bias toward those we have things in common with) and believe that the “other” is inferior.¹³ And the insidiousness of implicit bias proves that we can hold these beliefs even if they are not overtly played out.

We all have a shared responsibility to refrain from perpetuating bias and microaggressions. But we do not all share the same ability to enact systemic change. If we are brutally honest with ourselves and others about how power is maintained through inequitable laws, policies, and practices that target and oppress underrepresented groups, then we have taken the first step.

So how do we get from that first step to equity? An easy answer does not exist. We are all people with complex lives, intersectional identities,¹⁴ and varying lived experiences. People need different things to enter, thrive, and lead within the legal profession. The unwillingness to engage in honest discussions about systemic inequities and our roles in continuing them is a significant hindrance to becoming an ally and advocate. It’s time to choose differently, to become your own impetus for change, and to willingly remove the protective blinders that can perpetuate oppression.

Diversifying the legal profession, creating equal opportunities, and transforming the experience of legal professionals and clients will be a long process. But each day, each one of us has the opportunity to advance that goal. Attorneys, firms, and law schools can take the following steps to work toward equity, diversity, and inclusion, both within the profession and in client interactions. Regardless of your place in the system, you can help build a more equitable legal profession.

Individuals:

1. Identify, own, and work to mitigate your own biases. Take the Implicit Association Test.¹⁵
2. Learn what microaggressions are and how to prevent them. Recognize that dismissive attitudes are harmful and avoid making assumptions about and labeling people.
3. Identify what your work, communication, and conflict management styles are. Our work environment is transformed when we have a better idea of how we experience and respond to the world.
4. Develop a robust internalized commitment to equity and inclusion with an “accountability partner.” This partner should be someone you trust but also someone not influenced by your personal or professional position. The key is authentic feedback with a goal of consistently developing personal strategies for cross-cultural dialogue and relationship building. 
5. Participate in activities that naturally expose and connect you to people from different cultures. People with marginalized identities have been required to live in a white-dominated culture for generations; change demands working toward a greater understanding of other cultures.
6. Become active in a group or organization that teaches anti-racist principles such as Race Forward and the Kirwan Institute for the Study of Race & Ethnicity.
7. Join or start an affinity group that moves beyond simple conversation by offering learning and development strategies.¹⁶
8. Learn how to speak up and interrupt biased and microaggressive behavior with communication strategies such as those in the “Open the Front Door” framework.¹⁷
9. Be vocal and affirm the efforts of others who are advocating for equity and justice. There is power, safety, and solidarity in numbers.

Supervisors:

1. Facilitate a team training focused on work and communication styles, conflict management skills, and cross-cultural communication.
2. Recognize that microaggressive instances occur on a daily basis in the workplace and that employees are likely to experience them. Prepare yourself emotionally and professionally to support your staff. Model the ability to have your own microaggressive statements interrupted without defensiveness or retaliation.
3. Recognize that implicit bias exists for everyone and is not inherently evil or bad. 
4. Foster an environment that encourages employees to discuss their experiences openly. You can accomplish this during initial meetings or through a “supervision contract”—a written agreement by the supervising staff and the employee to address conflict directly with an opposing party. The contract explains the level and method of support the supervising staff will provide.
5. Develop team- and department-level expectations regarding self-awareness of biases. The goal should be reconciliation and problem-solving rather than repercussions.
6. Develop anti-racist values and norms for communication and interpersonal relationships for your team or department that are aligned with your organization—and include these as part of meetings, check-ins, and onboarding. 
7. Develop an “interruption of biased and microaggressive behavior norm” based on the unique culture of your team or department. Establish and model a baseline expectation of interrupting problematic behavior and language by asking clarifying and probing questions such as:
   •  What did you mean when you said . . . ?
   •  Did I understand you when you said . . . ?
   •  How did you determine . . . ?
   •  How did you conclude . . . ?
   •  What is the connection between . . . and . . . ?

Law Schools

1. Foster an inclusive and supportive environment by ensuring your institution’s physical space reflects a diverse representation of human beings. For example, examine the race, gender, and ableism reflected in the art and pictures displayed in the entryway and hallways.
2. Include staff of all levels in transparent decision-making processes, especially when the majority of staff are people of color or represent other marginalized groups. 
3. Seek out and collaborate with groups and organizations that are committed to intentionally and actively addressing issues of diversity and inclusion. 
4. Offer trainings, workshops, and opportunities for continuing education on topics including implicit bias and microaggressions, cross-cultural communication, inclusive leadership, and unbiased decision-making.

Executive-level leaders and HR representatives:

1. Require HR staff to be regularly and consistently educated on all types of bias and microaggressions.
2. Review hiring and promotion trends for inequalities. Redact all demographic data from hiring materials once a candidate pool has been established.
3. Ensure all staff have the opportunity for professional development regardless of their position. Hire or promote staff to leadership who have demonstrated a consistent willingness to engage in self-reflection, be held accountable for missteps, navigate conflict and pursue reconciliation rooted in non-biased behavior and language.
4. Hire an outside firm with a proven track record to review HR processes at least once every three years. The firm should analyze the activities and effectiveness of HR at the operating level, anonymously survey staff to gain meaningful input and a holistic picture of HR’s reputation within the firm, and engage a small group of executive-level staff to address accountability and needed change.
5. Work with external consultants to implement a comprehensive anonymous staff and organization culture survey. This will help you establish a baseline and allow you to track the progress of equity and inclusion initiatives. 
6. Provide staff with data on the perpetuation of bias, stereotype threats, and double standards of those who are “othered.” Educate and equip all staff on how to engage in, manage, and recover from difficult conversations and conflict.
7. Develop, maintain, and refine supervisory and management strategies at the executive level that are congruent with stated equity and inclusion values.
8. Educate and equip leaders with equitable decision-making tools. Develop and require the use of an equity tool kit to work toward mitigating bias in decision-making across all aspects of organizational development.¹⁸
9. Develop a clearly articulated policy for discipline without punishment with a focus on tiered staff involvement.¹⁹

Law firms:

1. Regularly collect feedback from clients to better understand the experience your firm is creating for them.
2. Intentionally build relationships with community service organizations and understand the need for pro bono services.
3. Regularly highlight the rules of professional conduct underpinning civility, ethics, diversity, equity, and inclusion to all attorneys, and set an expectation of adherence to these in the employee contract. Ensure that HR operations are aligned to support this expectation.
4. Hire an external consulting firm to conduct a culture and demographic survey. Use the data to develop a realistic equity plan and to inform summer associate, mentorship, and other programs.
5. Ensure that partners have a reasonable number of attorneys to supervise. Overtaxing people with an oversized team is a recipe for affinity bias to manifest.
6. Review compensation levels for all partners and associates. It is helpful to have an independent review of compensation levels with a team empowered to challenge any inconsistencies discovered. Be prepared to quickly and transparently address any incongruencies found. 
7. Require participation in diversity initiatives by staff based on compensation level. Require minimum participation in at least two non-CLE-based workshops on equity and bias annually to expand perspective and deepen learning.
8. Ensure that a diverse team approach is used in conducting outreach and recruitment. This can show both the diversity of the law firm’s employees and expand the opportunity for new ideas. But be sure to resist tokenism as a means of representing diversity.²⁰

Karine Joy (KJ) Williams is the founder of RISEWITHKJ in South King County, Wash., and was formerly the Washington State Bar Association’s diversity program manager. She can be reached at kjwilliams@risewithkj.com.

Notes

1. Equality creates access and opportunity for all regardless of their social identity. Equity is the tangible fulfillment of access, fairness, and safety for everyone.
2. For more, see Marjorie A. Silver, Emotional Competence, Multicultural Lawyering and Race, 3 Fla. Coastal L.J. 219 (2001–2002), https://tinyurl.com/yxaq4c5v.
3. See Rebecca Buckwalter-Poza, Making Justice Equal, Ctr. for Am. Progress, Dec. 8, 2016, https://tinyurl.com/y2zstql9.
4. See All. for Equal Just., 2018–2020 State Plan for the Coordinated Delivery of Civil Legal Aid to Low-Income People, Dec. 4, 2017, https://tinyurl.com/y6r3xsk4.
5. See Scott Rogers, The Mindful Lawyer: Furthering the Cause of Justice, Fla. Bar, July 24, 2020, https://tinyurl.com/y68nfl4b. 
6. See Paul Hodkinson, Industry Is ‘Elitist’ and ‘a Bit of a Bubble’, Say London Lawyers, Law.com, Sept. 12, 2019, https://tinyurl.com/yy7m5gjz. 
7. For more on how class affects experiences, see Res. Generation, Class Distinctions & Income Brackets, https://tinyurl.com/y2t6ygbn. 
8. For more on implicit bias, see Bailey Reiners, 12 Unconscious Bias Examples and How to Avoid Them in the Workplace, Built In, Sept. 1, 2020, https://builtin.com/diversity-inclusion/unconscious-bias-examples. 
9. Am. Bar Ass’n, ABA Profile of the Legal Profession 2020, at 33, July 2020, https://tinyurl.com/y4mk5mhu.
10. Id.
11. Wash. St. Bar. Ass’n, Diversity Research Project: Literature Review, 2015, https://tinyurl.com/y3b72esn.
12. For more on bias against LGBTQ attorneys, see p. 50.
13. For more on affinity bias, see Jeffrey Davis, The Bias Against Difference, Psych. Today, June 25, 2020, https://tinyurl.com/y6sxhgvm.
14. For more information and resources on intersectionality, see Holman Library, Diversity, Equity, Inclusion, and Culturally Responsive Education: Intersectionality & Identity, Nov. 14, 2020, https://tinyurl.com/y32entgy. 
15. See Project Implicit, Implicit, https://implicit.harvard.edu/implicit/education.html.
16. For more on starting an affinity group, see Alyse Kalish, How to Start an Affinity Group at Work, According to Real People Who Did It, The Muse, https://tinyurl.com/y47tnvga. 
17. For more on this framework, see T.J. Souza, Facilitating Difficult Dialogues in the Classroom, 2012, https://tinyurl.com/yyzrlgne.
18. For more on organizational development, see Mike Gibbons, What Is Organizational Development + Why Startups Should Care, People Managing People, Feb. 8, 2020, https://peoplemanagingpeople.com/topics/organizational-development-startups/. (“Organizational development . . . is the action-oriented practice of moving an organization toward achieving the organization’s purpose and/or objectives by enabling and motivating people to manage, drive, and embrace organizational change.”). 
19. For more, see John Huberman, Discipline Without Punishment, 42 Harv. Bus. Rev. 62 (1964).
20. For more on tokenism, see Tonie Snell, Tokenism: The Result of Diversity Without Inclusion, Medium, May 30, 2017, https://tinyurl.com/y8y8d5h9.