Addressing Bias in the Legal Profession [Self Study CLE]

Yolanda Jackson

Earn one hour of Elimination of Bias MCLE credit by taking this self-evaluation exam.

Study the article below and answer the accompanying test questions. You will find the questions at the end of the article.

When you’re done, simply mail the coupon and answers with a $25 payment to: Peter Gillen, The Bar Association of San Francisco, 301 Battery Street, Third Floor, San Francisco, CA 94111.

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The California State Bar Rules of Professional Conduct prohibit discriminatory conduct in a law practice. Rule 2-400 entitled: Prohibited Discriminatory Conduct in a Law Practice, part (B) states “In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in: (1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or (2) accepting or terminating representation of any client.”

Connection Between Bias and Discriminatory Conduct

Bias, also known as automatic preference, can lead to discriminatory conduct. In beginning to assess your personal biases and the biases of others, it is extremely important to recognize that every human being has biases. Whether or not you are a person of color, a female, LGBT, or a person with disabilities, you do, in fact, have biases. The key is to recognize your own biases and then “address bias from a place of awareness and options, rather than a place of blame.” Recognize when, as part of your legal practice or in general, you are making decisions or are engaged in conduct that is in part a result of what you assume are another person’s gender, race, religion, age, sexual orientation, physical abilities, weight, height, ethnicity, etc. Then pause and think about whether you would act the same or make the same decision if the other person involved did not belong to that particular category or group. As you can imagine, if you are not aware of your own bias, you are in risk of violating the rule of conduct outlined above as you manage your law practice hiring, firing and client representation activities.

According to social cognition research, a fundamental process of the human brain causes humans to categorize and prefer people based on group identity. This function is described as an “indispensable cognitive device for understanding, negotiating, and constructing our social world.” This all takes place within a fraction of a second and before we recognize that it is happening. This all is known as our unconscious bias. A web-based test that was developed by a Harvard-led research team found a significant degree of implicit/unconscious bias among those tested, despite what researchers say were honest assertions by test takers that they harbored no prejudice or bias. This Implicit Association Test (IAT) is designed to detect bias based on several factors including race, gender, sexual orientation and national origin. You might be interested in taking this test:

Now That You Know You Have Bias – Recognize and Control It

First, recognize that it is impossible to escape having biases about different cultures, genders, etc. Second, confront and be aware of your biases and predispositions. Practice identifying your biases. Learn to acquire as much information about your counter-part and client as an “individual” as you can, as opposed to only associating this person with a “group” and thereby making assumptions which are often wrong. Test your assumptions that you have made about others by asking questions.

Treat everything you “think” you know about a particular person as a simple hypothesis that should be constantly tested against your data. Take perspective by raising other possible explanations for why you think certain things are happening.

Enter into client representations with a self-conscious awareness of the tendency we share toward bias and stereotyping. Think about whether you are negotiating the best settlement just as effectively and aggressively for the short, overweight female-of-color client as you would for the tall white male client. Think about whether you have ever made the decision to not hire an equally qualified candidate simply because you would be uncomfortable working around an LGBT person or a person with disabilities.

Avoid generalizing about a culture based on past observations or what you have seen or learned through the media and/or pop culture and learn to apply information only to the situation in which you receive it. Do you recall when a pierced ear on a man lead one to assume that man was gay? Because of style/fashion magazines, pop culture and famous sports figures, it is now common place to see men with pierced ears and think it is “cool” and/or stylish. The point being, much of what we believe to be true or the “norm” comes from the media, celebrities and marketers. Let’s all try to shift our own thinking and beliefs about others and the assumptions we make; and not wait for pop culture to do it for us. Give people who are different from you and with whom you work or whom you represent the same benefit of the doubt you would give someone who you associate with your own group, without first clouding that relationship with assumptions. Don’t assume they are nothing more than an exemplar of people with which you associate them……just as you would not want them to do that with you. In controlling your bias, It is also very important to communicate effectively.

Effective communication includes but is not limited to active listening, seeking clarification as appropriate, not dominating the conversation, and (even when speaking with clients), losing the “white noise” when listening to others, that is, avoiding interference in your listening that comes from your thinking about other things when you should be “hearing” what the other person is saying. Communicate with sensitivity to differences and use both receptive and expressive skills.

Responding When You Are the Recipient of Biased Conduct

Here is some guidance on how to respond to bias in a positive and constructive manner. Begin by carefully listening and trying to understand what the person is saying. Respond by paraphrasing what you think you heard the other person say. Share how you feel about the comment or behavior with an “I feel…” statement. Do not respond with a confrontational statement.

Become comfortable asking questions to clarify what was said and ask why the person made the assumption or where they got their information. For example, think about the very common scenario where the female attorney is presumed to be the court reporter or the client when entering a deposition or approaching the clerk in court, by colleagues and/or court staff. This common assumption takes place in front of clients and is often embarrassing for everyone involved. The female might consider asking the speaker in private, “What made you assume I was the court reporter?” This type of direct response by the female (receiver of the biased statement) lets the speaker know it is the comment or behavior that is problematic and not the person.

It helps to remember that the specific bias we develop in our lives is something we “learn” and is not something with which we are born. Therefore, specific bias can be “undone or reversed” with effort. It is important and can be effective to remain calm and to be non-judgmental when responding to comments and/or behavior that feel like they are based on bias. Responding aggressively is likely to escalate the situation.

Finally, offering alternative information concerning the bias is often effective, that is, educating the speaker about you as an individual. All of these tips may lead the speaker/actor to recall this past experience the next time a similar situation arises; and to think twice the next time they make unfounded assumptions about an individual, especially in a professional setting.

When the discussion of elimination of bias comes up in the context of the legal profession, the topic that immediately surfaces is the importance of having the demographics of the profession reflect the demographics of the general public that it represents. Statements like, “it is important for clients and court users to have access to a court system where lawyers and the judiciary look like them and likely have shared life experiences and backgrounds,” and “the demographics in California are rapidly changing and decision-makers within corporations are becoming more diverse and expect the same level of diversity in their outside counsel,” drive the discussion around the need for sensitivity and cultural competence of lawyers when representing clients and managing a law practice.

Here are a few statistics that will provide a frame of reference. According to a 2006 California State Bar report, based on the U.S. Census Bureau and state bar data here are the general population and attorney demographics from 2001:

State Bar Attorneys California Population
Women 32% 50%
African Americans 2.4% 6.7%
Asian Pacific Islanders 6% 11.2%
Latinos 3.7% 32.4%
Other Minorities 4.9% 3%
Caucasian 83% 46%
LGBT 2.4% 2.1%
Individuals with Disabilities 4% 17.4%
Older (Age 40+) 65% 39%

These demographics provide a clear indication that we as lawyers should educate ourselves on the cultures, needs and behaviors of others. Learning how others (clients, employees, colleagues) process information, make decisions, analyze information, negotiate business deals, deal with family disputes, is important to being effective as a lawyer.

Understanding that there is “more” to being an effective lawyer than just knowing the law and how it applies will serve clients and the profession well.

Yolanda Jackson is the Deputy Executive Director and Diversity Director of The Bar Association of San Francisco. She also is an Adjunct Professor at UC Hastings College of the Law, where she teaches negotiations and settlement courses and classes on Bias/Diversity in Negotiations. She has presented over 100 elimination of bias training sessions for law firms, bar associations, corporations/entities and various law schools.

Examination Questions (True/False) and Instructions

Download the questions and instructions on receiving CLE credit.