Systemic racism continues to be embedded in every fabric of our society and, in light of recent events, the world can no longer ignore the disproportionate impacts on African-American and Black communities stemming from systemic racism. In response to the deaths of George Floyd, Ahmaud Arbery, Breonna Taylor, and countless other African-Americans, the leadership of the Business Law Section (“Section”) of the American Bar Association issued a statement in support of Black Lives Matter and to stand, without presumption, in solidarity with the Black community and with all people seeking an end to racism and intolerance. The statement reaffirms the Section’s fundamental commitment to diversity, inclusion, and social justice, and names the Section’s commitment to redouble its efforts to eliminate systemic racism and to advocate for needed legal reforms through the power of business law, business lawyers, and business court judges.
Under Model Rule 8.4(g) of the American Bar Association Rules of Professional Conduct (the “Rule 8.4(g)”), it is professional misconduct for a lawyer to 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.
Before the adoption of Section (g), Rule 8.4 already prohibited misconduct related to the practice of law, including violating or attempting to violate the rules, committing certain criminal acts, engaging in dishonesty/fraud/deceit/misrepresentation, engaging in conduct prejudicial to the administration of justice, communicating an ability to influence improperly a government agency, or helping a judicial officer to engage in unethical conduct. Section (g) added to the concept of misconduct, but specifically states that it 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.”
Section (g) helps the legal profession by helping with public perception. The community will benefit from a legal system that is fair and unbiased. A positive public perception of an unbiased system assists the operation of the courts and the practice of law. The section also helps lawyers by providing clear definitions and parameters of what is prohibited and setting out guidelines and comments to protect the operation of law practice and right to free speech, thought, association, and religious practice. Consistent rules from jurisdiction to jurisdiction also aid legal practitioners and their clients engaging in interstate business.
Despite the positive benefits of the Model Rule, in the two years following the rule, Vermont was the only state to officially adopt the rule. Several states had either formally or informally declined to adopt or consider adoption. The objections to the rules ranged from “religious liberty” objections to more academic and politically philosophical objections.
In light of current events, including the deaths of George Floyd, Ahmaud Arbery, Breonna Taylor, the push for states to adopt the Model Rule has resurfaced. On July 15, 2020, the Standing Committee on Ethics and Professional Responsibility issued (“Formal Opinion”) offering guidance on the purpose, scope, and application of Model Rule 8.4(g). The Formal Opinion addresses many objections to the adoption of the rule by outlining several representative situations for application of the rule. The Formal Opinion again encourages states to adopt the rule, stating, “Enforcement of Rule 8.4(g) is therefore critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”
Anti-racism is the active process of identifying and eliminating racism, and this is a call for action for the legal profession to not stay silent or passive in this movement when the Section has committed to advocate for the elimination of systemic racism. The legal profession must take action to combat the imbalances within the legal profession. The following are some actions that the legal profession can take to address racism and its effect:
- Education. Achieving equity requires understanding not only the current experience of marginalization and oppression but also the broader social structure and how a history of lost opportunities and disenfranchisement have widened the race gap. A lack of education and understanding contributes to bias, which in turn creates barriers and impedes the retention and advancement of diverse lawyers.
- Improving Systems to Reduce Bias. Unconscious bias training at regular intervals should be provided in the workplace. This training is especially important for those in interviewing and hiring positions and decision-making roles for promotions and advancement opportunities. Existing processes should be examined to see how bias affects staffing and advancement. For example, assessing whether the work allocation system is based on objective merits whereby technical skills, judgment, and work ethic will earn placement on challenging, high-profile, and career-advancing files, or whether the system leaves room for subjective preferences based on soft skills and who “fits” in with the team.
- Culture. Key support comes from top-down. Leadership in the workplace should commit to creating a culture where all members can be their authentic self and to taking active and meaningful action to address systemic racism within the legal profession.
- Assessing Data. In-house counsel who are decision-makers when selecting which law firms or service providers to retain can request data related to the demographics of the lawyers at the firm to assess whether the firms are meeting diversity benchmarks and metrics. In-house counsel can also engage in continuous review of existing relationships to determine whether diverse lawyers are billing on their files and in lead counsel roles.
Each of us in the legal profession has a role to play in eliminating systemic racism. Lawyers are advocates at the forefront of change, so let us all take steps in advocating for equity and justice within our profession.