We’ve tried the moral case for diversity—it’s the right thing to do. And the business case for diversity—it’s good for business. Yet the legal profession remains stubbornly non-diverse. Maybe it’s time for a new approach—the ethical case for diversity.
If the purpose of lawyer ethical rules is to prescribe behavior that promotes the public good, including equality under the law, why not rules mandating diversity in the profession? The argument was recently made by David Douglass, a partner at Sheppard Mullin in Washington, D.C., in his ground-breaking presentation, An Ethical and Scientific Case for Promoting Diversity and Equality in the Legal Profession: Moving from Non-Discrimination to Pro-Equality.
I had never heard the argument before. It’s worth considering.
What Are Lawyer Ethics?
Lawyers have an externally imposed code that governs behavior. The Rules of Professional Conduct codify these ethical standards and are adopted by each state supreme court. They vary slightly from state to state, but most follow the general outline of the Model Rules of Professional Conduct as adopted by the American Bar Association.
At a recent Institute for Inclusion in the Legal Profession gathering in Chicago, Douglass traced the development of the ethics governing lawyers back to the role of justice before and in the documents of the founding of America. Douglass explained the role of the American lawyer in society as established first as the selfless pursuit of public good, and second on behalf of individual clients or a single issue.
Noting that there’s an inherent tension between lawyering for the public good and for an individual client, he argued that codified rules of professional conduct arose in response to the secondary development of the commercial practice of law. The rules were established to ensure that the profession collectively fulfilled its duty to advance the public good.
Professionalism and Self-Policing
Law’s defining characteristics are shared by other professions. These elements include: specialized knowledge and training; a fiduciary duty owed to a client; a duty owed to overarching values; and self-policing. The self-policing aspect is codified in the Rules of Professional Conduct. Despite the ethical rules, equality remains unequally enjoyed within the legal profession—and the American populace generally.
The Preamble to the ABA Model Rules points out that lawyers have three distinct roles: a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice. Comment  explains what “a public citizen having special responsibility for the quality of justice” means. It exhorts lawyers to:
seek improvement of the law, access to the legal system, the administration of justice, and the quality of service rendered by the legal profession…A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes people who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.
Although the italicized language was not included in the Preamble to the Illinois Rules of Professional Conduct, it can be inferred that the Illinois Supreme Court supports the notion that lawyers should devote professional time and resources to work to ensure access to our justice system.
First, the Preamble to the Illinois Rules includes comment [6A], which articulates that it’s the responsibility of lawyers to use their training, experience, and skills to provide services in the public interest for which compensation may not be available. Comment [6B] goes on to state that although the Illinois Rules don’t contain a counterpart to Model Rule 6.1 regarding pro bono and public service, the reason is not to limit lawyers’ responsibility to render uncompensated service in the public interest. It’s only because it’s not possible to articulate a disciplinary standard regarding pro bono and public service.
Second, the Illinois Supreme Court created an Access to Justice Commission to promote and enhance equal access to justice. The Access to Justice Commission places an emphasis on access to Illinois civil courts and administrative agencies for all people, particularly the poor and vulnerable.
The Comments to the Rules of Professional Conduct (and the Preamble) generally don’t form the basis of discipline. To be subject to discipline, a lawyer needs to violate a Rule of Professional Conduct itself.
Rules of Professional Conduct Related to Equality
In his presentation, Douglass pointed to the ABA’s 2016 adoption of Model Rule 8.4(g) as progress, albeit an inadequate response to satisfy a lawyer’s obligation to society. One of his strongest criticisms of the ethical Rule is that it contains a mens rea requirement that prohibits only intentional harassment or discrimination.
After protracted study and negotiation the ABA elevated a comment to Rule 8.4, the general Rule defining professional misconduct, to the black letter of the Rule. Model Rule 8.4(g) provides that it’s 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…
The Illinois Supreme Court has not determined whether it will adopt Model Rule 8.4(g). However, the Illinois Rules provide that a lawyer who commits a discriminatory act in violation of a law also commits professional misconduct. Illinois Rule 8.4 provides that it’s professional misconduct for a lawyer to:
(j) violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer’s fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer’s fitness as a lawyer shall be determined after consideration of all the circumstances, including…whether the lawyer knew that the act was prohibited by statute or ordinance….No charge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency of competent jurisdiction has engaged in an unlawful discriminatory act…
Lawyer Ethics Rules Don’t Reflect the Science of Implicit Bias
As regular readers of this blog know, the concept of implicit bias has increasingly been discussed over the past several years. It’s how the brain works. If our brains didn’t make unconscious associations, we’d be paralyzed by indecision. We’d be unable to deal with the complexities of the world around us. Yet without understanding the science of implicit bias, lawyers and judges may be making “gut” decisions that are biased.
These unconscious associations cannot be intuited but can be overcome. Interrupting unconscious bias is the subject of continuing education programs for both lawyers and judges. (The Illinois Supreme Court became one of the first states to require diversity and inclusion CLE. The Commission has online courses you may take for free on this topic.)
In his presentation, Douglass pointed to the ABA’s implicit bias initiative as evidence that it accepts the science of implicit bias. He asked, “Doesn’t this contradict or undermine Model Rule 8.4(g) that prohibits only behavior that a lawyer ‘knows or should know is harassment or discrimination…’?”
He answered his question by concluding that an ethical code that prohibits only intentional prejudice or discrimination is out of step. It isn’t in accordance with prevailing scientific conclusions that implicit or unconscious bias plays a significant role in decision-making.
Lawyers Should be Required to Work for Equality
Douglass concluded by proposing that the ABA adopt a rule acknowledging that lawyers have an ethical obligation to promote the ideal of equality for all members of society. This obligation translates into a professional duty to undertake affirmative steps to remedy discrimination, eliminate bias, and promote equality, diversity, and inclusion in the legal profession.
It’s a novel proposal. Here at the Commission on Professionalism we tend to support inspiration to higher conduct rather than merely compliance with mandated rules. Yet considering the lack of progress and urgency of the mandate, perhaps we should consider options that require greater efforts be made to ensure “equality for all” is a principle reflected in our profession.
David Douglass will speak on the ethical case for diversity at our The Future Is Now 2.019 conference on May 16, 2019, in Chicago. We hope that you will come. Hear him out. Debate the possibilities.