On matters of race, lawyers can do better

Sybil Dunlop
BridgeTower Media Newswires

Horrifyingly, I wasn’t surprised when I heard about George Floyd’s murder. But I was surprised by our society’s collective reaction to this event. Perhaps it is because we have been home for months, thinking about what really matters. Perhaps it is because this was a bridge too far — an action that forced white people to confront what has always been obvious to Black people. But collectively, we are all saying “no more.”

How do we fix this problem? Because it isn’t just about our police shooting a massively disproportionate number of Black men. The problem is at the root of our country’s existence. Black Americans have fewer educational opportunities, make less money, receive worse health care, and the list could go on and on. Our entire system is unfair to the core. I am at a loss to know how to even go about fixing everything. Because everything is broken. And I — a white person — know that I have benefited from an unfair system. I don’t know what to do. I don’t know how to fix it. I don’t even know what to say.

I know I can do better. And if we each do more and do better our country can’t help but take long-overdue steps forward.

As lawyers, we have access to tools and opportunities to change systems and laws. I sometimes worry that law school taught me to focus on what the law is and not what it should be. So many of our laws are unfair—drug laws, immigration laws, voting laws. I vow to take more time to think about what the law should be (and take on cases to help address inequities in our nation’s laws).

As employers, we can identify, hire, and promote Black attorneys and staff. Law is the least diverse profession. We are 88% white. We are judging lawyers differently based on our expectations about race. Resume studies show that we are more likely to hire someone named Emily than someone named Lakisha. Another recent study demonstrates the ways in which we assess the quality of Black and white associates differently. Researchers asked law partners to rate the quality of a legal memo, telling half of the partners that a Black associate wrote the memo and they told the other half that a white associate wrote it. Horrifyingly, the law partners who thought a white lawyer wrote the memo rated the memo 28% better than the law partners who thought a Black attorney wrote it. The partners also found 43% more errors when they thought the memo was written by a Black attorney than a white lawyer.

I vow to identify institutional changes that my firm can make to minimize the impact of these biases. We need to affirmatively seek diverse pools of attorneys to hire from. We should remove racial identifiers from resumes when we review them. We should offer associates blind feedback. We should review partner feedback to minimize bias. And we should educate partners about the ways in which bias can impact work assignments, mentoring, sponsoring, and perceptions of quality. Finally, we should hold ourselves accountable and set quantifiable and measurable goals for improvement.

As colleagues, we can consciously include our Black colleagues. Research suggests that our Black colleagues can feel isolated. In a recent study, one Black professional reported that “a lot of times, there are things that people exclude me from because they say, ‘Oh, she’s going to be the only Black person there ... just don’t invite her, she won’t feel comfortable.’”*

Bobby Earles,a Black partner at Kirkland & Ellis, provides some pretty basic advice:

• If you are working on a deal, and have a Black counterpart, say, “Hi Nicole. When this deal is finished, let’s have coffee and talk over how it went.”

• If you are a senior executive, and there is a Black executive being considered for a different, senior position, say to him, “Hi, Rashad. I think you have a real shot at this. Let’s have a call to talk about the points you need to cover on the interview.”

• If you are a senior partner, and there is a Black associate in your group who shows potential, say, “Hi, Keisha. I really liked your work on X. If you are open to it, I would love to mentor you and help you further develop your skills in this area.”

• If you play golf, and there is a Black person at the company who also plays golf, say to him, “Hi, Larry. I heard you play golf. I’m planning to hit the driving range on Friday. If you’re free, let’s go together.”
These things, says Earles, speak louder than just talk. I vow to do them.

As members of a bar, we can advocate for a diverse judiciary. Right now, our society includes 38% people of color. Yet only 20% of our state court judges are people of color. And this isn’t just about doing better by Black people. Here’s the part where some white people blanch — but we are casting too large a shadow. For example, white men are only 30% of the U.S. population, but they are 58% of state court judges. In other words, it is not just that Black people are under-represented; white people are over-represented.

Why does this matter? The judiciary’s long-term institutional legitimacy requires that it be perceived to be fair to all people. Professor Sherrilyn Ifill emphasizes that the “public’s confidence in the judiciary must be earned. The public wants to know ultimately not that its views will always win the day, but that the deck is not stacked.” A non-diverse judiciary undermines this confidence. For example, one poll shows that 83% of white judges, but only 18% of Black judges, believe that Blacks are treated fairly in the criminal justice system.

Protestors take to the street when they do not believe that they can change the system from within — a problem exacerbated when a community does not trust the judiciary in part because it does not reflect the communities it serves, but instead only a favored class. I vow to work to fix this problem and advocate for change.

I don’t want to live in an unfair society. I don’t want my life to be lived in a system that is stacked against certain people. I don’t want this to be my country’s legacy. I want to be part of a solution. And to do that, I have to do more. I have to do better.

—————

Sybil Dunlop can be reached at sdunlop@greeneespel.com.