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Diversity and Inclusion: Professionalism at Work in the Law

6/23/2020

June 23, 2020

On February 25, 2020, as representatives of the Illinois Supreme Court Commission on Professionalism, Judge Debra B. Walker and Judge Diane M. Shelley lead an open discussion with the American Academy of Matrimonial Lawyers at Petterino's in Chicago centered around diversity and inclusion in the legal workplace.

Judge Walker and Judge Shelley focused their presentation on how to discuss civility and diversity in the legal profession, implementing strategies to challenge biases and stereotypes, and cultivating skills to defuse incivility. The presentation was tailored for both large law firms and sole practitioners, as recognizing and understanding recent societal changes improves the quality of legal services no matter the size of the firm.

Judge Walker first provided a statistical foundation regarding the relationship between civility and diversity, how attorneys experience unprofessional behavior, and the consequences of incivility. Unsurprisingly, the groups most impacted by incivility include people of color and women, and those least impacted are white men and those with high incomes.

The statistical analysis showed incivility makes it more difficult to resolve matters, makes the practice of law less satisfying, and discourages diversity in the legal profession. An alarming statistic surprised many in attendance; the rate of death by suicide for lawyers is nearly six times the suicide rate for the general population and the third leading cause of death among attorneys. Anecdotal evidence further supports the fact women and persons of color lose the will to fight against unprofessional behavior directed against them and leave the profession more frequently than white men.

Judge Walker contrasted professionalism and ethics. The Rules of Professional Conduct establish a minimum standard of legal ethics, a floor all lawyers cannot go below without punishment. Professionalism establishes a never-ending ceiling of behavior we want all lawyers to aspire toward.

The presentation then returned to the concept of societal changes affecting the legal workplace. Specifically, the combination of ages, genders, and races that make up the United States has drastically changed over the past several decades. By 2044, more than half of all Americans are projected to belong to minority groups.

Judge Shelley lead the discussion regarding the various identities that fall under the definition of diversity. Those identities include sex, race, ethnicity, religion, income level, marital status, parental status, ability status, sexual orientation, gender identity, and national origin. All identities and their effects will differ significantly from person to person.

Of the approximately 1.35 million lawyers in the United States, 85% are white, 65% are men, 5% are African American, 5% are Hispanic, and 3% are Asian. The legal profession's minority representation numbers are lower than a number of other professions, including accountants, auditors, software developers, architects, engineers, and physicians. Minority and female representation declines as you rise up the organizational pyramid. As candidates transition from summer associates to associates to partners, the numbers steadily decline in representation. The judiciary numbers are also a concern, as recent studies show less than one-third of state court judges are women and approximately 27% of judges are people of color.

Judge Shelley then explained why we have a diversity problem. The traditional law firm business practices do not lend themselves to the retention of women and racial minorities. The effects of the billable hour structure, recruiting practices, and associate-to-partner track lead to unconscious bias and stereotypes of women and minorities during evaluations, distribution of work, and issues relating to business development.

Judge Walker then led the participants through a hypothetical situation to better understand biases and stereotypes. Judge Shelley shared an experience of her own when she was the lead attorney on a case in her first few years of practicing law. Before a settlement meeting began, an older male attorney told Judge Shelley to spend the afternoon going to Marshall Fields to shop and that he would take care of settlement. Judge Shelley stood her ground and informed the male attorney that it was her case and she would be handling it. Although the male attorney might not have had ill intentions, he demonstrated his biases based on Judge Shelley's gender, age, and/or race. Judge Walker explained how the hypothetical situation and Judge Shelley's experience illustrated different ways implicit bias may play a role in the workplace. Disrupting your own or someone else's biases can be done on a person to person basis and by implementing systems in the workplace, like blind resumes, formal mentoring, and regular feedback.

Judge Shelley led the discussion regarding implicit bias. Bias is when we think one thing is truer than the other based on socialization and other factors. Bias can be conscious or unconscious, also known as implicit. Judge Shelley recommends taking the Implicit Association Test (IAT) from Harvard that can detect the strength of someone's biases, or automatic association between mental representations and objects in memory.

Studies on implicit bias show partners will score a memo written by a white associate higher than an identical memo written by a black associate, and women and minorities were systematically less likely to get responses from professors after sending identical emails regarding interest in their work.

Judge Shelley invited the audience members to challenge their biases and assumptions by becoming aware of them, then retraining the brain to shape your perceptions, perspectives, and values, as well as your empathy for those of others. Go outside your comfort zone, read newspapers you may not agree with, and check your own thought process to see if you're creating stereotypes and barriers in your head. In order to deliver justice as an attorney, you must become aware of your implicit biases to start disrupting your own and other's implicit biases.

The presentation was informative, interactive, and eye-opening. As a young minority attorney, there was so much benefit interacting with experienced attorneys to discuss how civility and diversity in our profession has changed over the years. The presentation made clear that attorney demographics are changing, and that means our field is changing as well. I took away the importance of remaining open minded and informed in order to re-shape what civility means in our practice, especially as it applies to how civility impacts diversity. Staying informed about the changing landscape of our practice will guide us to identify the best ways to help our colleagues and our clients.

This article was originally published in the Illinois State Bar Association's June 2020 Family Law newsletter.