Legal Profession

Title

Combating Silence in the Profession

Document Type

Law Review Article

Publication Date

6-2019

Keywords

diversity in the legal profession, ABA Model Rules of Professional Conduct, Model Rule 8.4(g), employment discrimination, implicit bias

Abstract

Members of the legal profession have recently taken a public stance against a wave of oppressive policies and practices. From helping immigrants stranded in airports to protesting in the face of white nationalists, lawyers are advocating for equality within and throughout American society each and every day. Yet as these lawyers go out into the world on behalf of others, they do so while their very profession continues to struggle with its own discriminatory past.

For decades, the legal profession purposefully excluded women, religious minorities, and people of color from its ranks, while instilling a select group of individuals with the privilege of power and prestige. And while the profession often attempts to take concrete steps to address its history of exclusionary conduct—most recently through the passage of Model Rule 8.4(g)—the vestiges of its discriminatory past continue to affect all corners of the profession, particularly for communities of color. When one looks at the partnership ranks of large law firms, the clerks who work for Supreme Court Justices, the faculties that educate law students, and even the members of law review editorial boards, the continued challenge of creating an inclusive and diverse profession remains apparent. These challenges, at least in part, are related to the covert discrimination that confronts women and people of color each and every day both within and outside the legal profession.

And yet, there are steps that the profession can take to address the most insidious forms of discrimination that remain within its ranks today. Drawing on scholarship from the fields of professional responsibility, employment discrimination, and organizational behavior and management, this Article argues that members of the legal profession should adopt policies and practices that (i) address covert discrimination throughout the profession and (ii) encourage individual attorneys to stop remaining silent and instead give voice to their experiences of discrimination, harassment, and bias. Research suggests that traditionally unrepresented groups within the profession often exist within a shroud of silence. They are often forced to silence themselves, their opinions, their views, and their experiences for fear of being labeled angry, troublesome, sensitive, or unwilling to be a “team player.” That silence, it turns out, is quite damaging. As such, the profession should adopt policies targeted at “Combating Silence in the Profession” that will encourage underrepresented groups to voice their concerns and experiences, so that a more inclusive profession finally comes into being.

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