Addressing Cultural Bias in the Legal Profession
Culture provides a foundation for the way we experience the world. Rooted in traits such as ethnicity, race, religion, and gender identity, culture influences people’s values, behaviors, and beliefs. Scholars have described culture as something akin to “the air we breathe—it is largely invisible and yet we are dependent on it for our very being.” Because culture provides the backdrop for our understanding of the world, it also affects our understanding of others—though much of what shapes our views of the behavior of others is intangible to us and lies beneath the surface of our own self-knowledge. This is as true of our positive assessments of others as it is of negative ones. Unconscious, instinctive negative judgment about others—or “implicit bias”—is inextricably tied to culture: a person’s multiple identities give rise to cultural affiliations, and cultural affiliations are often at the root of implicit bias.
The past two decades have seen an explosion of research into implicit biases and the ways in which they affect human behavior. As the United States becomes increasingly diverse, cultural misunderstandings and manifestations of bias are more likely to occur. These misunderstandings and biases can pose significant problems in communication-based professions such as medicine, social work, and law. For these reasons, health care providers and social workers are governed by professional standards and ethical rules that direct professionals to avoid making decisions that are rooted in bias. Multiple studies show that doctors and social workers are aware that understanding culture and rooting out bias are essential to effective communication with clients. One might expect the legal profession to address service delivery in similar ways. Yet culture and bias receive relatively less attention in the legal profession.
This article addresses the inadequate treatment of culture and bias in the legal profession and, specifically, in legal education and in the code of ethics for lawyers. It examines the Model Rules of Professional Conduct as a guide for lawyers in navigating cultural bias, and compares the Rules of Professional Conduct to the ethical standards for social workers and physicians. In this article, I advocate for both greater acknowledgement of implicit bias as well as the introduction of the concept of “cultural humility” into legal education and into the Rules of Professional Conduct that govern lawyers. Cultural humility emphasizes self-reflection and treats each person as an expert on his or her own cultural experience. It builds on models of cross-cultural communication already in existence and can help lawyers respect the cultural backgrounds of their clients, communicate with them more successfully, and tell their stories to decision-makers and negotiation partners with greater fidelity to the client’s lived experience.
The effects of greater acknowledgement of implicit bias and introduction of cultural humility into legal education, our Rules of Professional Conduct, and into the ethos of the profession have the potential to be far-reaching. By helping lawyers examine their own biases and take steps to minimize the effect of these biases, we will be a more effective and compassionate profession and may reduce miscommunication and conflict in legal practice, both in scenarios where cultural differences are apparent and even when they are hidden.
This article proceeds in four parts. Part I offers a working definition of “culture” and endeavors to demonstrate the ways in which culture affects human behavior and the practice of law in particular. Part I also explores notions of cultural competence and cultural humility as frameworks for professionals who engage in cross-cultural communication. These frameworks become relevant later in the paper in assessing how to improve both legal education and the ethical rules for lawyers along these dimensions. Part II delves into the topic of implicit bias and argues that because bias is pervasive, we ought to be doing more to acknowledge and address it in both legal education and in the ethical standards that govern lawyers. One way to address implicit bias is to train lawyers in cultural humility and to include this concept in the Rules of Professional Conduct for lawyers. Parts III and IV drill down deeper. They examine the extent to which legal education (Part III) and the Rules of Professional Conduct for lawyers (Part IV) are attentive to issues of culture. Parts III and IV also compare the legal field to both social work and medicine when it comes to training and ethical standards relating to cultural competence and implicit bias. We will see that law lags far behind these other fields along these dimensions. Part IV also advocates for amending the Model Rules of Professional Conduct to align them with the rules of ethics that govern health care providers and social workers, and to bring issues of culture and bias into the consciousness of practicing attorneys.
∞ Staff Attorney, New York Legal Assistance Group, Tenants’ Rights Unit; J.D. 2015, New York University School of Law. This article began as a final paper for Professor Paulette M. Caldwell’s Education Law Seminar at NYU Law. It went through several drafts under her supervision and fulfilled my substantial writing requirement. I am indebted to Professor Matthew Coles for his seminar on Sexuality and the Law which gave me the background to make an attempt at synthesizing Equal Protection and desegregation jurisprudence. I would also like to thank Charles Mather, J.D. 2014, University of Michigan, for his comments on an earlier draft, as well as the staff of the N.Y.U. Review of Law & Social Change for all their assistance. Any errors or omissions are mine alone.
.Sue Bryant & Jean Koh Peters, Five Habits for Cross-Cultural Lawyering, in Race, Culture, Psychology, & Law 48 (Kimberly Barrett & William George eds., 2004).
.See Ruth G. Dean, The Myth of Cross-Cultural Competence, 82 Fams. Soc’y 623, 625 (2001).
.Sue Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 Clinical L. Rev. 33, 40 (2001); see also Marjorie A. Silver, Emotional Competence, Multicultural Lawyering and Race, 3 Fla. Coastal L.J. 219, 220–21 (2002) (“Like birds to air and fish to water, we are unaware of the culture in which we function until we are transported out of that culture by travel, experience, or education.”).
.See Paul R. Tremblay, Interviewing and Counseling Across Cultures, 9 Clinical L. Rev. 373, 376 (2002).
.Bryant & Peters, supra note 1, at 48; see generally Kimberle W. Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics, 1989 U. Chi. Legal F. 139 (1989).
.See generally Mahzarin R. Banaji & Anthony G. Greenwald, Into the Blindspot, in Blind Spot (2013) (describing how the “automatic white preference” that most people express when taking the Implicit Association test regarding race actually predicts discriminatory behavior); Anthony Greenwald et al., Measuring Individual Differences in Implicit Cognition: The Implicit Association Test, 74 J. Personality & Soc. Psychol. 1464 (1998); Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 Cal. L. Rev. 969 (2006); Charles R. Lawrence III, The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987); Silver, supra note 3; Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 Cal. L. Rev. 945 (2006); Susan T. Fiske, What We Know Now About Bias and Intergroup Conflict, the Problem of the Century, 11 Current Directions Psychol. Sci. 123, 123 (2002); Nicole E. Negowetti, Symposium, Implicit Bias and the Legal Profession’s “Diversity Crisis”: A Call for Self-Reflection, 15 Nev. L.J. 930 (2015); Debra Lynn Bassett, Deconstruct and Superstruct: Examining Bias Across the Legal System, 46 U.C. Davis L. Rev. 1563 (2013) (identifying the possible effects of unconscious bias throughout the legal system, and not just in particular areas of practice); L. Song Richardson & Phillip Atiba Goff, Implicit Racial Bias in Public Defender Triage, 122 Yale L.J. 2626 (2013); Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124 (2012); Justin D. Levinson & Robert J. Smith, Implicit Racial Bias Across the Law (2012) (exploring the ways in which implicit racial bias affects twelve different areas of law).
.See Jennifer M. Ortman & Christine E. Guarneri, United States Population Projections: 2000 to 2050, U.S. Census Bureau (Aug. 2, 2016, 9:32 AM), http://www.census.gov/population/projections/files/analytical-document09.pdf [https://perma.cc/P27S-ZM34]; see also Mary Isaacson, Clarifying Concepts: Cultural Humility or Competency, 30 J. Prof. Nursing 251 (2014).
.See Code of Ethics of the National Association of Social Workers, https://www.socialworkers.org/pubs/code/code.asp [https://perma.cc/3RM4-KSHG]; see also American Medical Association Principles of Medical Ethics, http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/principles-medical-ethics.page [https://perma.cc/7VMU-XLEB]. Other professions address bias as well. For example, the American Psychological Association (APA) maintains standards and guidelines about bias and the treatment of cultural and linguistic differences. See APA Standard 2.01, http://www.apa.org/ethics/code/index.aspx (last visited Aug. 3, 2016); see also Guidelines on Multicultural Education, Training, Research, Practice, and Organizational Change for Psychologists, http://www.apa.org/pi/oema/resources/policy/multicultural-guidelines.aspx (last visited Aug. 3, 2016). For additional examples, see ABA Comm. on Ethics & Prof’l Responsibility, Appendix, in Notice of Public Hearing 10–12, http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/rule_8_4_amendments_12_22_2015.authcheckdam.pdf [https://perma.cc/APW6-D85U].
.See generally Robert M. Ortega & Kathleen Coulborn Faller, Training Child Welfare Workers from an Intersectional Cultural Humility Perspective: A Paradigm Shift, 90 Child Welfare 27 (2011); Michele Goodwin & Naomi Duke, Health Law: Cognitive Bias in Medical Decision-Making, in Implicit Racial Bias Across the Law 95 (2012); Alan Nelson, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care, 94 J. Nat’l Med. Ass’n 666 (2002); Peter A. Clark, Prejudice and the Medical Profession: A Five-Year Update, 37 J. L. Med. & Ethics 118 (2009); Elizabeth A. Jacobs et al., Teaching Physicians-in-Training to Address Racial Disparities in Health: A Hospital-Community Partnership, 118 Pub. Health Rep. 349 (2003).
.Some commentators have addressed the role of culture in legal education and in legal practice. See, e.g., Annette Wong, A Matter of Competence: Lawyers, Courts, and Failing to Translate Linguistic and Cultural Differences, 21 S. Cal. Rev. L. & Soc. Just. 431, 460–65 (2012) (arguing that cultural awareness is an issue of professional responsibility and that it is incumbent on lawyers to raise issues of culture to courts).
.I choose in this article to compare the treatment of culture and bias in law to the treatment of culture and bias in medicine and social work. I do so because I teach and practice law in a medical-legal partnership clinic (the Pediatric Advocacy Clinic) where I routinely interact with doctors and social workers and have had the opportunity to see differences in the professions.
.Cultural humility differs from the concept of cultural competence that has been adopted by many professions. See, e.g., Ortega & Faller, supra note 9, at 33 (encouraging child welfare workers to move away from a cultural competence framework and to engage clients as experts on their own cultures as part of the service delivery process); see generally Melanie Tervalon & Jann Murray-Garcia, Cultural Humility Versus Cultural Competence: A Critical Distinction in Defining Physician Training Outcomes in Multicultural Education, 9 J. Health Care for Poor & Underserved 117 (1998).
.Daniel G. Bates & Fred Plog, Human Adaptive Strategies 3 (1991).
.Bryant & Peters, supra note 1, at 48; Tremblay, supra note 4, at 379; see generally Joseph R. Betancourt, Cross-Cultural Medical Education: Conceptual Approaches and Frameworks for Evaluation, 78 Acad. Med. 560 (2003). While cultural groups form around these and many other identities, the case examples that I use in this article to illustrate the complexity of cross-cultural lawyering are drawn from my own experience practicing law within a poverty law clinic and tend to focus on cultural differences stemming from race, ethnicity, and socioeconomic status. These examples, for similar reasons, are more likely to be rooted in the practice of public interest law and not corporate law.
.Tremblay, supra note 4, at 379; Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1242 (1991).
.Betancourt, supra note 14, at 561.
.Bryant & Koh Peters, supra note 1, at 48.
.Lawrence III, supra note 6, at 337–38; see also Ortega & Faller, supra note 9, at 29.
.This may be especially true in the United States. Ortega & Faller, supra note 9, at 29. See also Robert C. Post, Law and Cultural Conflict, 78 Chi.-Kent L. Rev. 486, 492–93 (2003) (explaining that culture is as much about difference as it is about unity and noting the challenge for law to respect and reflect culture in a multicultural state).
.Marcia Carteret, How Individualism and Collectivism Manifest in Child Rearing Practices, Dimensions Culture (Aug. 3, 2016, 11:14 AM), http://www.dimensionsofculture.com/2013/09/how-individualism-and-collectivism-manifest-in-child-rearing-practices/ [https://perma.cc/FJS4-KNDD]; Meredith Small, Kids: How Biology and Culture Shape the Way We Raise Young Children 13 (2002) (noting, for example, that “preschool is a microcosm of the message Western culture in general sends as an imperative for a well-functioning society. One must be independent, self-reliant, but be able to cooperate and share and listen and obey authority. And these goals make sense both historically and economically—Western culture believes that the way to be successful is to be an individual achiever.”).
.See generally Jennifer E. Lansford, The Special Problem of Cultural Differences in Effects of Corporal Punishment, 73 L. & Contemp. Probs. 89 (2010); Opinion, Is Spanking a Black and White Issue?, N.Y. Times, Aug. 14, 2011.
.See, e.g., Mich. Comp. Laws § 722.23 (2016) (listing 12 best interest factors that judges must consider in making child custody determinations. Factors include, but are not limited to: “(a) The love, affection, and other emotional ties existing between the parties involved and the child[,]” and “(b) the capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or religion or creed, if any.” These factors in particular implicate the family’s culture, even if the statute is not explicit about it.). Each state has its own version of the best interest of the child factors for courts to consider during child custody cases. See table on file with author.
.Tremblay, supra note 4, at 400–02.
.Bryant & Peters, supra note 1, at 50.
.Bryant, supra note 3, at 42–43.
.Id. at 41–42.
.Tremblay, supra note 4, at 388.
.See generally David A. Binder et al., Lawyers as Counselors: A Client-Centered Approach (3rd ed. 2012).
.See supra notes 6, 9 and accompanying text.
.See, e.g., Mary Isaacson, Clarifying Concepts: Cultural Humility or Competency, 30 J. Prof. Nursing 251, 251 (2014) (specifically exploring cultural competence in the field of nursing).
.Marcie Fisher-Borne, Jessica Montana Cain & Suzanne L. Martin, Mastery to Accountability: Cultural Humility as an Alternative to Cultural Competence, 34 Soc. Work Educ. 165, 168 (2014) (quoting Terry L. Cross et al., Towards a Culturally Competent System of Care (1989)). The authors go on to note that “[m]any cultural competency frameworks fail to encourage critical self-awareness that examines or challenges the inherent power imbalance between provider and client . . . but instead focus primarily on exposing providers to different (i.e., non-dominant) cultural groups.” Id. at 169 (emphasis in original).
.Michael Paasche-Orlow, The Ethics of Cultural Competence, 79 Acad. Med. 347, 347 (2004).
.Ortega & Faller, supra note 9, at 35.
.Bryant, supra note 3, at 41 (explaining that each person is part of multiple cultural groups at once (based on, for example, race, socioeconomic status, gender, ethnicity) and that people may accept or reject values from their various cultures. Bryant cautions against reinforcing stereotypes in the study of culture.); see also Betancourt, supra note 14, at 562 (“With the huge array of cultural, ethnic, national, and religious groups in the United States, and the multiple influences, such as acculturation and socioeconomic status, that lead to intra-group variability, it is difficult to teach a set of unifying facts or cultural norms (such as ‘fatalism’ among Hispanics or ‘passivity’ among Asians) about any particular group.”).
.Betancourt, supra note 14, at 562. Research shows that people who feel unbiased may be more susceptible to the effects of unconscious bias. See Jerry Kang et al., supra note 6, at 1173–74.
.Paasche-Orlow, supra note 32, at 348.
.Id. at 348.
.See generally Ortega & Faller, supra note 9 (encouraging child welfare workers to move away from a cultural competence framework and to engage clients as experts on their own cultures as part of the service delivery process).
.Melanie Tervalon & Jann Murray-Garcia, Cultural Humility Versus Cultural Competence: A Critical Distinction in Defining Patient Training Outcomes in Multicultural Education, 9 J. Health Care for Poor & Underserved 117, 118 (1998) (internal citations omitted).
.See Dean, supra note 2, at 624–25.
.Tremblay, supra note 4, at 382.
.Tremblay, supra note 4, at 385.
.Id. at 386
.See generally Bryant & Peters, supra note 1.
.Michael Cooper, Census Officials, Citing Increasing Diversity, Say U.S. Will Be a ‘Plurality Nation’, N.Y. Times (Dec. 12, 2012), http://www.nytimes.com/2012/12/13/us/us-will-have-no-ethnic-majority-census-finds.html [https://perma.cc/4BG6-PMD6]; see also Ortman & Guarneri, supra note 7.
.U.S. Census Bureau, Language Use in the United States: 2007 (2010), http://www.census.gov/prod/2010pubs/acs-12.pdf [https://perma.cc/N3K3-TEWB].
.See ABA, Diversity in the Legal Profession: The Next Steps 11–16 (2010); Helia Garrido Hull, Diversity in the Legal Profession: Moving from Rhetoric to Reality, Colum. J. Race & L. 1, 4–14 (2013); Silver, supra note 3, at 229–31 (2002).
.Fiske, supra note 6.
.See generally supra note 6 and accompanying text; Tremblay, supra note 4; Silver, supra note 3.
.See Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1133–34 (2012), for a description of biases that are explicit (known) that are concealed–for example, a person who has negative attitudes toward Muslims but hides those attitudes, has an explicit bias that is concealed. On the other hand, a person who has negative attitudes towards Muslims but is unaware of those attitudes has an implicit bias.
.Mark Snyder, On the Self-Perpetuating Nature of Social Stereotypes, in Cognitive Processes in Stereotyping and Intergroup Behavior 183, 193 (1981).
.Silver, supra note 3, at 231–32 (citing Lawrence III, supra note 6, at 323).
.Levinson & Smith, supra note 6, at 17 (citing Anthony Greenwald et al., Understanding and Using the Implicit Association Test: III. Meta Analysis of Predictive Validity, J. Personality & Soc. Psychol. (2009); Brian Nosek et al., Pervasiveness and Correlates of Implicit Attitudes and Stereotypes, 18 Eur. Rev. Soc. Psychol. 36 (2008)).
.See Lawrence III, supra note 6, at 322–23 (“Freudian theory states that the human mind defends itself against the discomfort or guilt by denying or refusing to recognize those ideas, wishes, and beliefs that conflict with what the individual has learned is good or right. While our historical experience has made racism an integral part of our culture, our society has more recently embraced an ideal that rejects racism as immoral. When an individual experiences conflict between racist ideas and the societal ethic that condemns those ideas, the mind excludes his racism from consciousness.”); Greenwald & Krieger, supra note 6, at 951 (“Implicit biases are discriminatory biases based on implicit attitudes or implicit stereotypes. Implicit biases are especially intriguing, and also especially problematic, because they can produce behavior that diverges from a person’s avowed or endorsed beliefs or principles.”).
.Project Implicit, https://implicit.harvard.edu/implicit/ [https://perma.cc/95RQ-BQAE].
.For example, people taking the IAT are asked to classify a series of faces into two categories, such as African-American and European-American. The subjects are then asked to mentally associate the white and black faces with words such as “joy” and “failure.” All under considerable time pressure. “An analysis of tens of thousands of these tests taken anonymously on the Harvard web site found that eighty-eight percent of white people had a pro-white or anti-black implicit bias; nearly eighty-three percent of heterosexuals showed implicit bias for straight people over gays and lesbians; and more than two-thirds of non-Arab, non-Muslim testers displayed implicit biases against Arab Muslims.” Charles R. Lawrence III, Unconscious Racism Revisited: Reflections of the Impact and the Origins of The Id, the Ego, and Equal Protection, 40 Conn. L. Rev. 931, 956–57 (2008).
.Jolls & Sunstein, supra note 6, at 971; Greenwald & Krieger, supra note 6, at 955–56. There is also research that demonstrates that biases actually influence the behavior of the target of the biases to conform to the stereotypes. See generally Snyder, supra note 3.
.See, e.g., Negowetti, supra note 6, at 940–41 (describing an implicit bias study from the medical field and noting that “[p]hysicians with stronger implicit anti-black attitudes and stereotypes were not as likely to prescribe a medical procedure for African Americans compared to white Americans with the same medical profiles.”); Justin D. Levinson et al., Implicit Racial Bias: A Social Science Overview, in Implicit Racial Bias Across the Law 9, 19 (2012) (discussing various studies showing how the IAT can “predict discriminatory decision-making and behavior in a broad range of ways”).
.Fiske, supra note 6, at 124.
.See Lawrence III, supra note 6, at 343 (“A crucial factor in the process that produces unconscious racism is the tacitly transmitted cultural stereotype. . . . [T]he lesson is not explicit: It is learned, internalized, and used without an awareness of its source. Thus an individual may select a white job applicant over an equally qualified black and honestly believe that this decision was based on observed intangibles unrelated to race.”); see also Negowetti, supra note 6, at 941–42 (describing implicit bias studies in the context of legal employment).
.Levinson et al., supra note 6, at 15.
.See generally Alexander R. Green et al., Implicit Bias Among Physicians and its Prediction of Thrombolysis Decisions for Black and White Patients, 22 J. Gen. Internal Med. 1231 (2007); Goodwin & Naomi Duke, supra note 9; see also Elizabeth Tobin Tyler et al., Medical-Legal Partnership in Medical Education: Pathways and Opportunities, 35 J. Legal Med. 149, 154 (2014).
.Fiske, supra note 6, at 124; Silver, supra note 3, at 230.
.Jolls & Sunstein, supra note 6, at 981.
.Id. at 982.
.Basset, supra note 6, at 1573 (citing multiple studies in psychology journals that address reducing bias).
.Nicole E. Negowetti, Navigating the Pitfalls of Implicit Bias: A Cognitive Science Primer for Civil Litigators, 4 St. Mary’s J. Legal Malpractice & Ethics 278, 291–92 (2014) (citing studies by Irene Blair and Mahzarin Banaji on the conditions under which people can control the effects of stereotypes on their judgment and behavior).
.Levinson et al., supra note 61, at 21; Silver, supra note 3, at 243; Basset, supra note 6, at 1564.
.Kang et al., supra note 6, at 1135–39.
.See generally Justin Levinson & Daniele Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307 (2010).
.See generally Richardson & Goff, supra note 6.
.See generally Robert J. Smith & Justin D. Levinson, The Impact of Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U.L. Rev. 795 (2012).
.Kang et al., supra note 6, at 1148–50.
.See generally Susan Bryant & Jean Koh Peters, Reflecting on the Habits: Teaching about Identity, Culture, Language, and Difference, in Transforming the Education of Lawyers: The Theory and Practice of Clinical Pedagogy 349 (2014); see also Silver, supra note 36, at 230 (“[A]ll lawyering is cross-cultural, yet few lawyers perceive it as such.”).
. Levinson et al., supra note 61, at 21.
.ABA, supra note 49, at 12 (2010); see generally Negowetti, supra note 6.
.Mary Lu Bilek et al., Twenty Years After the McCrate Report: A Review of the Current State of the Legal Education Continuum and the Challenges Facing the Academy, Bar, and Judiciary 10–12 (2013).
.See ABA Standing Comm. on Ethics & Prof’l Responsibility, Section on Civil Rights & Soc. Justice, Comm’n on Disability Rights, Diversity & Inclusion 360 Comm’n, Comm’n on Racial & Ethnic Diversity in the Profession, Comm’n on Sexual Orientation & Gender Identity & Comm’n on Women in the Profession, Report to the House of Delegates Resolution 13, http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/final_revised_resolution_and_report_109.authcheckdam.pdf [hereinafter Report to the House of Delegates Resolution] [https://perma.cc/UVZ5-4DC8]. Twenty-two states and the District of Columbia have adopted anti-discrimination rules into their rules of professional conduct. Id. at 14 (“According to the ABA Lawyer Demographics for 2016, the legal profession is 64% male and 36% female. The most recent figures for racial demographics are from the 2010 census showing 88% White, 5% Black, 4% Hispanic, and 3% Asian Pacific American, with all other ethnicities less than one percent.”).
.ABA, supra note 49, at 13 (2010); see generally Nicole E. Negowetti, Symposium, Implicit Bias and the Legal Profession’s “Diversity Crisis”: A Call for Self-Reflection, 15 Nev. L.J. 930 (2015); Helia Garrido Hull, Diversity in the Legal Profession: Moving from Rhetoric to Reality, 4 Colum. J. Race & L. 1 (2013); Eli Wald, A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who is Responsible for Pursuing Diversity and Why, 24 Geo. J.L. Ethics 1079 (2011).
.ABA, supra note 79, at 31.
.See generally Cynthia M. Ward & Nelson P. Miller, The Role of Law Schools in Shaping Culturally Competent Lawyers, 89 Mich. B.J. 16 (2010); Bryant & Peters, supra note 1; Kimberly E. O’Leary, Using “Difference Analysis” to Teach Problem-Solving, 4 Clinical L. Rev. 65 (1997); see also Silver, supra note 36, at 238–39.
.ABA, supra note 79, at 17–18.
.See generally ABA, supra note 79; Mary Lu Bilek at al., supra note 80.
.It is difficult to estimate exactly how many law students take clinics. The American Bar Association does not collect this data.
. Bryant & Peters, supra note 77, at 376.
.While the ABA does not collect data on topics taught in law school clinics, or require that certain topics be addressed at all, it is revealing to look at the prevailing texts that guide clinical professors in designing their clinical courses. These texts include instructions for teaching students to practice law in a cross-cultural environment. See, e.g., Bryant & Koh Peters, supra note 77, at 376; Deborah Epstein, Jane H. Aiken, & Wallace J. Mlyniec, Communication and Assumptions, in The Clinic Seminar (West Academic Publishing 2014); see also Michele Jacobs, People from the Footnotes: the Missing Element in Client-Centered Counseling, 27 Golden Gate U. L. Rev 345 (1997).
In the Pediatric Advocacy Clinic, the clinic that I direct at the University of Michigan Law School, for example, I infuse multiple classes on the syllabus with reflection on cross-cultural lawyering. In our session devoted to examining the Rules of Professional Conduct, we discuss the ideas raised in this article—the failure of the Rules to address cross-cultural communication, linguistic differences, and the potential for bias to affect everyday lawyering. In our session on cross-cultural lawyering, the students engage in an exercise drawn from the Five Habits for Cross-Cultural Lawyering in which they compare themselves to one of their clients, identifying all differences and similarities, and then we discuss the effects of those differences and similarities on client communication and counseling. For that session as well, the students take multiple versions of the Implicit Association Test and we consider their results and their reactions. In supervision meetings with students to discuss their cases—and in case rounds sessions in class as well—we discuss the dynamics of the attorney-client relationship and reflect on differences and potential bias. I also include discussion of the challenges of communicating through cultural difference in our classes on client interviewing and client counseling. Throughout all of these many discussions, I am careful to take an approach that is rooted in cultural humility: I urge the students to treat their clients with respect and compassion and to look to them as the experts on their own experiences. I do not know if these discussions in my clinic leave a lasting impression on the students, but I do know that I seize the opportunity presented by the clinic’s diversity of students and of clients to surface biases and improve communication. I suspect that many of my colleagues do the same.
.Robert Kuehn, Data Compiled (Aug. 6, 2015) (on file with author). Five law schools have taken the extraordinary step of implementing a 15-unit experiential learning requirement: City University New York School of Law, University of the District of Columbia David A. Clarke School of Law, Washington & Lee University School of Law, and Pepperdine University School of Law, and California Western University School of Law.
.This is not to say that law students fail to learn about discrimination and bias in other classes. Any constitutional law class will teach students about unconstitutional discrimination, for example. And it is possible for law school faculty to include discussions about bias and discrimination in nearly every course. A property class could generate a discussion of housing discrimination, including the power of implicit bias; a contracts class could generate a discussion of unequal bargaining power, etc. I do not have the data to know how frequently this happens in traditional law school classes throughout the country. I will simply assert that there is a difference between learning about laws related to discrimination or conditions and attitudes that give rise to discrimination, and confronting one’s own biases and learning how to manage them. My focus in this paper is on developing skills for practicing law in a multi-cultural society.
.2016–2017 Standards and Rules of Procedure for Approval of Law Schools Standard 303(a)(3), http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2016_2017_standards_chapter3.authcheckdam.pdf [https://perma.cc/S2P6-DPJR] (requiring “one or more experiential course(s) totally at least six credit hours”); see also ABA, Managing Director’s Guidance Memo (Mar. 2015), http://www.americanbar. org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/governancedocuments/2015_standards_303_304_experiential_course_requirement_.authcheckdam.pdf [https://perma.cc/MN8M-WB5L] (explaining the new requirements).
.ABA, Transition to and Implementation of the New Standards and Rules of Procedures for Approval of Law Schools, http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/governancedocuments/2014_august_transition_and_implementation_of_new_aba_standards_and_rules.authcheckdam.pdf [https://perma.cc/WLA4-LWJ2].
.Susan Bryant & Conrad Johnson, Fieldwork: The Experience that Sparks the Learning, in Transforming the Education of Lawyers: the Theory and Practice of Clinical Pedagogy (Susan Bryant et al. eds., 2014) at 258–59.
.Susan Bryant, Elliott Milstein & Ann Shalleck, Learning Goals for Clinical Programs, in Transforming the Education of Lawyers: the Theory and Practice of Clinical Pedagogy 23–24 (Susan Bryant et al. eds., 2014).
.2014–2015 Standards and Rules of Procedure for Approval of Law Schools ch. 3 (Am. Bar Ass’n 2014), http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2014_2015_aba_standards_chapter3.authcheckdam.pdf [https://perma.cc/QF4C-L4QF].
.Managing Director’s Guidance Memo Sections 301, 302, 314, 315, http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/governancedocuments/2015_learning_outcomes_guidance.authcheckdam.pdf [https://perma.cc/B8SW-92Y6].
.Id. (emphasis added).
.Id.; see also Robert R. Kuehn, Pricing Clinical Legal Education, 92 Denv. L. Rev. 1, 13–14 (2014). It is important to note that there has been the call to add more experiential learning to the law school curriculum for decades, but only now is it actually being implemented.
.Robert Dinerstein, Experiential Legal Education: New Wine, New Bottles, http://www.americanbar.org/publications/syllabus_home/volume_44_2012-2013/winter_2012-2013/experiential_legaleducation.html [https://perma.cc/B2HW-BSUC].
.It may be more likely that students in clinic practice these skills when working with low-income clients. In Michigan for example, the student practice rules restrict clinical work to work on behalf of “indigent persons.” See Mich. Ct. Rs. 8.120 (2013).
.New York, for example, enacted a new “skills competency requirement,” which took effect for students commencing their law study after August 1, 2016. One way to satisfy the requirement is to complete 15 credits of experiential learning. See New York Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law 520.18 (Skills Competency Requirement for Admission).
.See State Bar of Cal., Task Force on Admissions Regulation Reform: Phase II Final Report, http://www.calbar.ca.gov/Portals/0/documents/bog/bot_ExecDir/2014_TFARRPhaseIIFinalReport_092514.pdf [https://perma.cc/USD5-XMFV].
.To date, the Admissions and Education Committee of the State Bar of California, following a feasibility study, recommended requiring six credits of experiential education prior to admission to the California bar, which is in line with the new ABA requirements. See Elizabeth R. Parker, Executive Director, Admissions & Education Committee, ABA, Excerpts from a State Bar of California Committee Agenda (2016), http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/August2016CouncilOpenSessionMinutes/2016_california_bar_admissions_requirements.authcheckdam.pdf [https://perma.cc/WK62-466K].
.Statement by the AALS Deans Steering Committee on the California Task Force on Admissions Regulation Recommendations (TFARR) (July 6, 2015), Ass’n of Am. Law Sch., http://www.aals.org/tfarr-statement/ [https://perma.cc/CVW6-HPBT].
.Statement of Position Regarding the State Bar of California Task Force on Admissions Regulation Reform (TFARR) Experiential Education Requirement (Aug. 18, 2015), Ass’n of Am. Law Sch., https://www.aals.org/scle-tfarr/ [https://perma.cc/H5X3-XQ89].
.See Mary Lu Bilek et al., supra note 80.
.See generally Susan Bryant et al., Transforming the Education of Lawyers: The Theory and Practice of Clinical Pedagogy (2014).
.Robert R. Kuehn, Pricing Clinical Legal Education, 92 Denv. L. Rev. 1, 43 (2015).
.Lisa Bliss et al., Client and Patient Relationships: Understanding Cultural and Social Context, in Poverty Health and the Law 125 (Elizabeth Tobin Tyler et al. eds., 2011); see also Brian D. Smedley, Adrienne Y. Stith & Alan R. Nelson, Interventions: Cross-Cultural Education in the Health Professions, in Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care 199 (National Academies Press 2003).
.Bliss supra note 112, at 132.
.Betancourt, supra note 14, at 560.
.See supra Parts I and II.
.See Goodwin & Duke, supra note 9, at 95–97 (describing multiple medical studies documenting disparities in healthcare along racial lines in areas such as diagnostic screening and medical care, mental health diagnosis and treatment, pain management, HIV-related care, treatments for cancer, heart disease, diabetes, and kidney disease. Because these disparities cannot be explained by patient education, income, health status, or insurance coverage, Goodwin and Duke locate these disparities, in part, in implicit bias of physicians.); Elizabeth Tobin Tyler, Medical-Legal Partnerships in Medical Education: Pathways and Opportunities, 25 J. Legal Med. 149, 154 (2014) (citing multiple studies on health disparities based on race and ethnicity and describing medical schools’ varied efforts to address the problem in the curriculum).
.The LCME is the body that provides accreditation to medical schools in the United States. To achieve and maintain accreditation, a medical education program leading to the MD degree must meet the LCME standards. See Liaison Comm. on Med. Educ., Functions And Structure of A Medical School (2014), https://med.virginia.edu/instructional-support/wp-content/uploads/sites/216/2015/12/2015_16_functions_and_structure_march_2014.pdf [https://perma.cc/BFJ6-6YRC].
.Standards, Publications, & Notification Forms, LCME, http://lcme.org/publications/ [https://perma.cc/7BU8-N5LF]; see also Lisa Bliss et al., supra note 112, at 138.
.Standards for Accreditation of Programs Leading to the MD Degree 7.6 (Liaison Comm. on Med. Educ. 2014), https://med.virginia.edu/ume-curriculum/wp-content/uploads/sites/216/2016/07/2017-18_Functions-and-Structure_2016-03-24.pdf [https://perma.cc/4C7M-79SK].
.Bliss et al., supra note 112, at 138. The Joint Commission on the Accreditation of Healthcare Organizations and the National Committee for Quality Assurance both support standards for linguistic and cultural competence in the provision of health care. ABA, supra note 49, at 15; see also Wong, supra note 10, at 460–61.
.See Tool for Assessing Cultural Competence Training, Ass’n Med. Cs. (Aug. 5, 2016), https://www.aamc.org/initiatives/tacct/ [https://perma.cc/6N2M-6B9Y]; see also Ass’n Am. Med. Cs., Cultural Competence Education (2005), https://www.aamc.org/download/54338/data/culturalcomped.pdf [https://perma.cc/N4BV-WLVX].
.See, e.g., Maya Dusenberry, Is Medicine’s Gender Bias Killing Women?, Pacific Standard (Apr. 22, 2015), https://psmag.com/is-medicine-s-gender-bias-killing-young-women-4cab6946ab5c#.g5skjv9gp [https://perma.cc/YTC6-SURC] (discussing recent public health studies that link gender bias to disparities in health care for women); Diane E. Hoffman & Anita J. Tarzian, The Girl Who Cried Pain: A Bias Against Women in the Treatment of Pain, 29 J.L., Med. & Ethics 13 (2001) (reviewing studies regarding differences between men and woman in the way they experience pain and concluding that women receive less aggressive treatment for their pain than men); Peter A. Clark, Prejudice in the Medical Profession: A Five-Year Update, J.L., Med. & Ethics (2009).
.See Nat’l Ass’n of Soc. Workers, Standards for Cultural Competence in Social Work Practice 4 (2015), https://www.socialworkers.org/practice/standards/naswculturalstandards.pdf [https://perma.cc/2N6E-BSX8] (describing standards governing “Self-Awareness[,]” “Cross-Cultural Knowledge[,]” and “Cross-Cultural Skills”).
.See Council on Soc. Work Educ., Educational Policy and Accreditation Standards 1 (2012), http://www.cswe.org/File.aspx?id=41861 [https://perma.cc/UP9T-3FM7].
.Id. at 2.
.Id. at 3.
.Id. at 4–5.
.The preamble to the Model Rules of Professional Conduct describe the lawyer’s role in serving clients and seeking justice without referencing cultural differences between attorneys and clients or the possibility that lawyers will learn from their clients in or to better represent them. See Model Rules of Prof’l Conduct Preamble (Am. Bar Ass’n 2016).
.Council on Social Work Education, supra note 124, at 8.
.Id. at 10.
.Univ. of Mich. Sch. of Soc. Work, http://ssw.umich.edu/programs/msw/concentrations [https://perma.cc/AEH9-8LNV].
.See, e.g., Stephen Wizner, Is Learning to “Think Like a Lawyer” Enough?, 17 Yale L. & Pol’y Rev. 583, 587 (1998) (explaining that thinking like a lawyer requires “adopting an emotionally remote, morally neutral approach to human problems and social issues; distancing oneself from the feelings and suffering of others; avoiding emotional engagement with clients and their causes; and withholding moral judgment.” Wizner critiques this approach and encourages a greater emphasis on educating lawyers to be compassionate and moral); Joshua D. Rosenberg, Interpersonal Dynamics: Helping Lawyers Learn the Skills, and the Importance, or Human Relationships in the Practice of Law, 58 U. Miami L. Rev. 1225 (2004).
.Bilek, supra note 80, at 7. See also ABA supra note 49, at 20.
.Wizner, supra note 135, at 590–91.
.See supra Part II.
.See supra Part III.
.Standard 303(a)(1) of the ABA Standards and Rules of Procedure for Approval of Law Schools states, “A law school shall offer a curriculum that requires each student to satisfactorily complete at least the following: (1) one course of at least two credit hours in professional responsibility that includes substantial instruction in the history, goals, structure, values, and responsibilities of the legal profession and its members . . . .” ABA, ABA Standards and Rules of Procedure for Approval of Law Schools 2015-2016 16 (2015), http://lcme.org/wp-content/uploads/filebase/standards/2016-17_Functions-and-Structure_2016-09-20.docx [https://perma.cc/E7BN-C6YD].
Medical students are likewise required to study professional responsibility. See Liaison Comm. of Med. Educ., Functions and Structure of a Medical School: Standards for Accreditation of Medical Education Programs Leading to the M.D. Degree 11 (2016), https://med.virginia.edu/ume-curriculum/wp-content/uploads/sites/216/2016/07/2017-18_Functions-and-Structure_2016-03-24.pdf [http://perma.cc/4F56-SFTE] (“7.7 Medical Ethics: The faculty of a medical school ensure that the medical curriculum includes instruction for medical students in medical ethics and human values both prior to and during their participation in patient care activities and requires its medical students to behave ethically in caring for patients and in relating to patients’ families and others involved in patient care.”).
Social work students must study professional ethics as well. See Council on Soc. Work Educ., Educational Policy and Accreditation Standards 3–4 (2008), http://www.cswe.org/File.aspx?id=41861 [https://perma.cc/UP9T-3FM7] (“Educational Policy 2.1.2—Apply social work ethical principles to guide professional practice. Social workers have an obligation to conduct themselves ethically and to engage in ethical decision-making. Social workers are knowledgeable about the value base of the profession, its ethical standards, and relevant law. Social workers recognize and manage personal values in a way that allows professional values to guide practice; make ethical decisions by applying standards of the National Association of Social Workers Code of Ethics and, as applicable, of the International Federation of Social Workers/International Association of Schools of Social Work Ethics in Social Work, Statement of Principles; tolerate ambiguity in resolving ethical conflicts; and apply strategies of ethical reasoning to arrive at principled decisions”).
.Model Rules of Prof’l Conduct Preamble (Am. Bar Ass’n 2016).
.Id. r. 1.1.
.See, e.g., In re Lee, 85 So. 3d 74 (La. 2012) (suspending a lawyer for, inter alia, lacking thoroughness and preparation); In re Richmond’s Case, 872 A.2d 1023 (N.H. 2005) (suspending lawyer for misrepresenting his competence to a client and inadequately preparing documents); People v. Beecher, 350 P.3d 310 (Colo. 2014) (suspending lawyer for giving incompetent advice to client); In re Alexander, 300 P.3d 536 (Ariz. 2013) (suspending lawyer, for representing a client in a complex RICO lawsuit despite limited legal experience, knowledge, and skill in the area); Atty. Grev. Comm’n v. Zhang, 100 A.3d 1112 (Md. 2014) (attorney disbarred for, in part, failing to conduct adequate legal research prior to giving advice to a client).
.Code of Ethics r. 1.05 (Nat’l Ass’n. of Soc. Workers 2008).
.Alexis Anderson et al., Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism, and Mandated Reporting, 13 Clinical L. Rev. 659, 666 (2007).
.Bryant supra note 3, at 42–43.
.See discussion supra Part II.
.Model Rules of Prof’l Conduct Preamble (Am. Bar Ass’n 2016) (“A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice . . . . A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.”).
.See supra note 6.
.Model Rules of Prof’l Conduct r. 1.2, 1.4 (Am. Bar Ass’n 2016).
.Id. at r. 1.2.
.Id. at r. 1.4.
.Id. at r. 1.4, cmt. 5.
.Id. at r. 1.4. cmts. 1–7.
.Id. at r. 1.4 cmt. 6.
.Code of Ethics r. 1.03 (Nat’l Assoc. of Soci. Workers, 2008).
.The Code of Medical Ethics includes the principles of medical ethics as well as the Opinions of the American Medical Association’s Council on Ethical and Judicial Affairs. Code of Med. Ethics, https://www.ama-assn.org/sites/default/files/media-browser/principles-of-medical-ethics.pdf [https://perma.cc/NLW9-63W7].
.Code of Med. Ethics Opinion 8.5, https://www.ama-assn.org/sites/default/files/media-browser/code-of-medical-ethics-chapter-8.pdf [https://perma.cc/Z7N8-AVAX].
.Interpreters can be very expensive. See, e.g., Federal Court Interpreters, U.S. Courts, http://www.uscourts.gov/services-forms/federal-court-interpreters [https://perma.cc/UYE8-CNXW].
.See supra notes 45–46.
.See generally Charles L. Bardes, Defining “Patient-Centered Medicine”, 366 New Eng. J. Med. 782 (2012), http://www.nejm.org/doi/full/10.1056/NEJMp1200070 [https://perma.cc/TTK3-NF32]; Victoria Maizes et al., Integrative Medicine and Patient-Centered Care (2009), http://www.nationalacademies.org/hmd/~/media/Files/Activity%20Files/Quality/IntegrativeMed/Integrative%20Medicine%20and%20Patient%20Centered%20Care.pdf [https://perma.cc/R39N-ZS5E].
.See generally NASW Standards for the Practice of Clinical Social Work, Nat’l Ass’n Soc. Worker, https://socialworkers.org/practice/standards/clinical_sw.asp [https://perma.cc/J3QT-S324]; Binder et al., supra note 28.
.This principal is equally applicable across the full socioeconomic spectrum.
.See supra notes 155–156.
.Model Rules of Prof’l Conduct r. 2.1 (Am. Bar Ass’n 2016).
.Id. at r. 2.1 cmt. 2.
.See generally Deborah Epstein et al., The Clinic Seminar ch. 2 (2014).
.Code of Med. Ethics Opinion 8.5, supra note 160.
.See, e.g., Goodwin & Duke, supra note 9, at 95.
.See Nelson, supra note 9, at 667; Clark, supra note 9, at 119–20; Jacobs et al., supra note 9, at 350.
.There have been some articles about implicit bias in the legal profession, though not many. See, e.g., Jerry Kang et al., supra note 6; Michael B. Hyman, Implicit Bias in the Courts, 102 Ill. B.J. 40 (2014); Justin D. Levinson & Danielle Young, Implicit Gender Bias in the Legal Profession: An Empirical Study, 18 Duke J. Gender L. & Pol’y 1 (2010); Bryan Stevenson, Just Mercy: A Story of Justice and Redemption (2014). The ABA Report on Diversity in the Profession recommends that lawyers “[f]ollow the lead of the medical profession, which analyzed racial and ethnic health disparities based on a Congressional mandate with funding, and analyze the justice disparities caused by a legal profession that is not diverse.” See ABA, supra note 49, at 18.
.A handful of articles have been written about lawyers’ own involvement in perpetuating injustice through exercising bias. See, e.g., Bassett, supra note 6, at 1578 nn. 60–64; Richardson & Goff, supra note 6 at 2634–41; Kang et al., supra note 6, at 1139–42; Levinson & Young, supra note 174, at 13–17; ABA, supra note 49 at 18.
.We are not always aware of our own limitations. In a study cited by Jerry Kang et al. in Implicit Bias in the Courtroom, researchers administered a survey to judges and found that “97 percent of judges . . . believed that they were in the top quartile in ‘avoid[ing] racial prejudice in decisionmaking’ relative to judges attending the same conference.” See Kang, supra note 6, at 1172 (citing Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195, 1225 (2009)) (alternation in Kang).
.Model Rules of Prof’l Conduct r. 8.4 (Am. Bar Ass’n 2016).
.See, e.g., Lawrence III, supra note 6, at 322 (“Americans share a common historical and cultural heritage in which racism has played and still plays a dominant role. Because of this shared experience, we also inevitably share many ideas, attitudes, and beliefs that attach significance to an individual’s race and induce negative feelings and opinions about nonwhites. To the extent that this cultural belief system has influenced all of us, we are all racists. At the same time, most of us are unaware of our racism. We do not recognize the ways in which our cultural experience has influenced our beliefs about race or the occasions on which those beliefs affect our actions. In other words, a large part of the behavior that produces racial discrimination is influenced by unconscious racial motivation.”).
.ABA Strengthens Provision Making Harassment, Discrimination “Professional Misconduct”, ABA (Aug. 9, 2016), http://www.americanbar.org/news/abanews/aba-news-archives/2016/08/aba_strengthens_prov.html [http://perma.ccn4AG-UXFQ]; Karen Rubin, ABA Amends Model Ethics Rule to Prohibit Discrimination, Harassment, Law for Lawyers Today (Aug. 11, 2016), http://www.thelawforlawyerstoday.com/2016/08/aba-amends-model-rule-to-prohibit-discrimination-harrassment/ [https://perma.cc/5HAT-8ZNQ].
.Id. Under the ABA Constitution, the Standing Committee on Ethics and Professional Responsibility has six primary responsibilities, including recommending amendments to, or clarifications of, the Model Rules of Professional Conduct (MRPC) or the Model Code of Judicial Conduct. ABA, Constitution & Bylaws 35–36 (2013), http://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/aba_constitution_and_bylaws_2013.authcheckdam.pdf [https://perma.cc/2A3S-FBZ6].
.Model Rules of Prof’l Conduct r. 8.4 (Am. Bar Ass’n 2016).
.Report to the House of Delegates Resolution, supra note 81, at 6–7.
.Code of Med. Ethics Opinion 8.5, supra note 160.
.Model Rules of Prof’l Conduct r. 8.4 cmt. 3 (Am. Bar Ass’n 2016).
.Report to the House of Delegates Resolution , supra note 81, at 16.
.See Code of Ethics r. 1.05(c) (Nat’l Ass’n. of Soc. Workers 2008).
.Model Rules of Prof’l Conduct Preamble and Scope  (Am. Bar Ass’n 2016).
.ABA CPR Pol’y Implementation Comm., State Adoption of the ABA Model Rules of Professional Conduct and Comments (2016), http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/adoption_mrpc_comments.authcheckdam.pdf [https://perma.cc/UN2U-NESM].
.See Report to the House of Delegates Resolution, supra note 81, at 5. Twenty-five jurisdictions have adopted anti-discrimination rules into their rules of professional conduct. Id.
.Colorado Rules of Prof’l Conduct r. 8.4(g) (Colo. Bar Ass’n 2016).
.Florida Rules of Prof’l Conduct r. 4–8.4 (The Fla. Bar 2016).
.See Report to the House of Delegates Resolution, supra note 81, at 6.
.Fla. Bar v. Forrester, 916 So. 2d 647 (Fla. 2005); Fla. Bar v. Knowles, 99 So. 3d 918 (Fla. 2012).
.Fiske, supra note 6, at 125.
.ABA, supra note 79, at 47.
II. What We Mean When We Talk About Culture
Before delving into the question of whether and to what extent the legal profession is sensitive to matters of cultural competence, it is appropriate to specify what we mean when we talk about “culture.” “Culture,” according to one account, is “a system of shared beliefs, values, customs, behaviors, and artifacts that members of a society use to cope with their world and with one another, and that is transmitted from generation to generation through learning.” Cultural groups can be based on a range of different identities including race, religion, age, sexual orientation, gender, immigration status, social status, language, and geography. No single characteristic will determine a person’s “culture”—we are each a part of several cultures, and each culture generates its own norms. A person’s behaviors and values are thus driven, in part, by a complex confluence of cultures and by the way in which society treats members of different groups. Culture is closely bound up with identity; it may be understood as an expression of group identity.
Culture affects the way we experience the world and the people in it. Our choice of words, our tone of voice, our proximity to another person when we speak to them are all influenced by the cultures in which we were raised. Culture also affects the attributions we make about others. If we experience someone as rude, it is (in part) because we have a culturally contingent understanding of what it means to be polite.
People learn their culture through a process of assimilation, which entails learning and internalizing group preferences, evaluations, and values. Of course, the process of learning a culture or assimilating into it does not generate a unified cultural being or a perfect representation of a given particular culture. People are more complex than that, and they routinely reject values and norms held dear by the cultures with which they identify. People may embrace or eschew the language, tone of voice, style of dress, customs, practices, and beliefs associated with a culture they count as their own. And, of course, individual identity and cultural identity evolve over time. To understand culture, then, one must understand that the norms associated with a particular culture may change and that people who associate with a given culture may diverge significantly in their practices and beliefs. (The necessity of this point will come into sharper relief in Part I.B. below, as I explore the limitations of the “cultural competence” model for addressing cross-cultural communications between professionals and clients.)
Two brief examples can help to illustrate the profound and pervasive ways in which culture shapes human behavior and understanding in ways that are relevant to the practice of law. First: One prominent expression of culture is the way in which people show love to, and the way in which they discipline, their children. In some cultures, keeping children physically close is an expression of love, while in others fostering independence is valued more highly. In some cultures, discipline is practiced by separating a child from her environment (a “time-out”), while in other cultures, spanking is the norm. These parenting approaches are central to child custody cases, which examine the behavior of parents in light of the “best interests of the child.” A family lawyer will face the task of understanding her client’s parenting approaches and explaining them to the trier of fact to make the case that the parent is acting in the best interests of her child.
Second: Culture is an important determinant of whether a person views themselves as an independent, autonomous decision-maker, or part of a collective and possessed of limited ability to make independent decisions. This expression of culture can loom large in connection with settlement (and other) negotiations. A criminal defense lawyer might assume she is operating in her client’s best interests when negotiating a plea deal in exchange for a reduced sentence, for example, and may not understand that her client’s community will not allow her to admit guilt as it would bring shame on the community. A competent lawyer must therefore understand the constraints on her client’s autonomy.
When lawyers are unaware of how culture influences their clients’ behavior or their clients’ values, they risk substituting their own judgment for that of their clients and failing to pursue their clients’ true objectives. Sue Bryant emphasizes this point in her examination of cross-cultural lawyering: “The capacity to form trusting relationships, to evaluate credibility, to develop client-centered case strategies and solutions, to gather information and to attribute the intended meaning from behavior and expressions are all affected by cultural experiences.”
Thus lawyers must know how to account for culture in their client interactions, so that they can build a trusting lawyer-client relationship and understand and work toward their client’s goals. Working toward a client’s goals often entails telling their clients’ stories, persuading decision-makers to find in favor of their clients, and negotiating favorable settlements for their clients. When lawyers are not cognizant of the power of culture, they risk misunderstanding their client’s stories, misinterpreting their clients’ goals and objectives, and potentially alienating their clients as well as the decision-makers in their clients’ cases. This is antithetical to “client-centered” lawyering, which places an extremely high premium on communication and trust in the attorney-client relationship.
B. Integrating Cultural Understanding into Client-Based Professions
Much has already been written in the fields of law, medicine, and social work about how to teach professionals to combat stereotypes and consider clients’ complex identities when providing services to them, and many client-based professions now strive to assure that service providers attain “cultural competence.” Cultural competence has been defined as “a set of attitudes, skills, behaviors, and policies enabling individuals and organizations to establish effective interpersonal and working relationships that supersede cultural differences[.]”
In the medical context, Dr. Michael Paasche-Orlow has identified three values that are “essential” to cultural competence: “(1) acknowledgement of the importance of culture in people’s lives, (2) respect for cultural differences, and (3) minimization of any negative consequences of cultural differences.” Scholars and practitioners alike recognize that there is no quick way to achieve cultural competence. The process is dynamic, ongoing, and developmental, and it requires a long-term commitment.
Because people are simultaneously embedded within multiple cultures, however, it is extremely difficult to become “culturally competent,” particularly if “competence” denotes mastery of “facts” about a particular culture. The cultural competence model carries the risk that professionals will feel overly confident in their understanding of clients from other cultures. It also carries the risk that people will rely on stereotypes when engaging with people from different cultures because they have studied the culture and maintain the belief that they are competent.
Dr. Paasche-Orlow acknowledges the limitations of this approach to cultural competence and stresses that true cultural-competence comes from patient-centered care. He points out that it “would be ludicrous, for example, to assume that all Haitian patients believed in Voodoo[.]” Cultural competence requires the professional to exhibit openness to other cultures. It also requires self-awareness by the professional such that s/he recognizes his/her own cultural perspective as well as the existence of a culture of the profession.
Because there is a risk of professional over-confidence in the cultural competence model, a slightly different—and better—way for professionals to understand their role in engaging people from different cultures may be found in the concept of “cultural humility.” This concept acknowledges the profound impact that culture has on human behavior and deliberately positions the client as the expert on his/her culture. Two commentators explained as follows:
[C]ultural competence in clinical practice is best defined not by a discrete endpoint but as a commitment and active engagement in a lifelong process that individuals enter into on an ongoing basis with patients, communities, colleagues, and with themselves. This training outcome, perhaps better described as cultural humility versus cultural competence . . . is a process that requires humility as individuals continually engage in self-reflection and self-critique as lifelong learners and reflective practitioners. It is a process that requires humility in how physicians bring into check the power imbalances that exist in the dynamics of physician-patient communication by using patient-focused interviewing and care. And it is a process that requires humility to develop and maintain mutually respectful and dynamic partnerships with communities on behalf of individual patients and communities in the context of community-based clinical and advocacy training models.
Physicians and social workers who adopt this approach toward working with patients and clients shed the unrealistic expectation that they will achieve “competence” in the cultures of their patients/clients. Instead, they acknowledge the role that difference and culture play in service delivery: they reflect on the cultures that influence their own experiences and behaviors; and they assume the role of learner by asking their clients questions about their own lived experiences. The goal of this approach is to improve communication and understanding between professional and patient/client.
This approach can be as useful for lawyers engaging in cross-cultural communications as it is for medical and social work professionals. And, indeed, without explicitly adopting the “cultural humility” framework, legal scholars have recognized the importance of legal professionals treating clients as the experts on their cultures. Paul Tremblay, for example, encourages lawyers to use “heuristics” when they interview and counsel clients from cultures that are different from their own. He explains:
The central premise of the heuristics idea is this: A lawyer working with an ethnic minority client can neither assume that the client’s cultural preferences do not matter . . . nor be certain that the specific differences of which the lawyer is aware will call for predictable variations in their interaction. The former danger we label as cultural imperialism; the latter, stereotyping. What the good faith lawyer needs is an orientation to cross-cultural practice which respects differences but does not guess incorrectly how the differences will matter.
Tremblay suggests identifying the areas in which cultures are most likely to differ, learning about those areas, and employing “tentative generalizations accompanied by a disciplined naïveté.” He encourages lawyers to identify some cultural differences in advance and learn about them, but then to open themselves up to learn from the particular client before them.
Other commentators writing about the delivery of legal services have sounded similar themes. In particular, Sue Bryant and Jean Koh Peters, in their seminal work Five Habits for Cross-Cultural Lawyering, describe specific exercises that lawyers may undertake to build trust and understanding between lawyer and client in the face of cultural differences. These exercises, or habits, require the lawyer to think critically about the many identities that form her own cultural background and consider how the lawyer’s own culture affects her communication with her clients. With their emphasis on critical thinking and on the importance of refraining from making assumptions about what drives clients’ communication and decisions, the habits provide a useful tool for lawyers confronting the cultural diversity of American legal practice.
Preparing lawyers to practice in a diverse landscape is increasingly important. The United States is already home to a dizzying array of different cultures and subcultures, and is becoming even more diverse. The United States Census Bureau projects that by 2043 there will be no majority ethnicity or race in this country. According to the United States Census, in 2007, 55.4 million Americans (20%) spoke a language other than English at home. This constitutes a 140% increase since 1980, during which the population grew by 34%. Legal professionals—who remain largely white and mono-lingual—will have no choice but to engage in cross-cultural communication. This will be true for lawyers working on behalf of people in poverty and for lawyers who serve well-heeled corporate clients. Effective cross-cultural communication requires an understanding of the tenets of cultural humility described above and an acknowledgement and examination of bias.
III. The Ubiquity of Bias
When we talk about culture and its effect on human behavior, we are also talking about difference. And where there is difference, frequently there is also bias, both conscious and unconscious. Psychologists have long understood that our unconscious—mental processes of which we are unaware—affects our behavior.
Over the past two decades, there has been an outpouring of research (by psychologists, economists, lawyers, and others) on the concept of unconscious or implicit bias—the idea that people harbor unknown biases against others on the basis of their membership in particular groups or their having particular traits. Implicit biases are different from explicit biases that are concealed. The former affect our behavior without our knowing it, while the latter are biases of which we are aware and that we seek to hide or control.
When people meet, they form initial impressions that are shaped by visible characteristics such as sex, age, race, and bodily appearance. These traits tend to be associated with cultural stereotypes and with bias. And certain stereotypes are so deeply ingrained in our culture that people do not realize that they shape perceptions and behavior. Consequently, people may feel and exhibit bias toward people with darker skin, women, people with disabilities, or members of other groups implicitly. Indeed, implicit bias can take hold even for individuals who consciously reject stereotypes, racism, ethnocentricism, and so on.
Scholars have conducted an array of studies designed to illustrate the pervasiveness of implicit bias in our society. For example, through an effort known as Project Implicit, millions of people have taken one or more computer-administered tests of implicit bias, which often call for takers to associate positive or negative words with images of people fitting into a range of social categories. These tests have revealed widespread bias on the basis of race, gender, and disability, and have shown that these biases take hold even for test-takers who are members of the group against whom the bias is exhibited.
As you would expect, these unconscious biases can lead to unintentional discrimination on the basis of race, national origin, ethnicity, or other group membership. Sometimes the discrimination is subtle. As one psychologist explained: “Automatic reactions to out-group members matter in every-day behavior. Awkward social interactions, embarrassing slips of the tongue, unchecked assumptions, stereotypic judgments, and spontaneous neglect all exemplify the mundane automaticity of bias, which creates a subtly hostile environment for out-group members.” At other times, discrimination rooted in implicit bias can be more overt and can affect obviously important decisions such as the decision to hire or fire an employee. And sometimes the consequences of implicit bias can be downright grave, as in the cases of “shooter bias” by police against people of color, or race-based disparities in physicians’ provision of medical care.
Numerous observers have argued that the best way to surface and dispel implicit bias is by engaging in deep, consistent self-reflection and by taking measures that are specifically designed to address the unique challenges presented by implicit bias. These might include promoting population diversity in workplaces and educational institutions, taking pains to assure that workplace environments not include potentially harmful stereotypical images of particular groups, exposing people to others who exhibit traits and characteristics that run counter to stereotypes, and educating people about unconscious bias. Research further demonstrates that when people are motivated to combat biases, they are more likely to be successful in doing so.
“Debiasing” takes discipline and practice. But it also takes awareness of the existence and effects of biases. There has been relatively little attention paid in legal scholarship to the pervasive effects of unconscious bias on client service delivery. While legal scholars have written about implicit racial bias in the criminal justice system (tackling, among other things, racial bias in policing, jury decision-making, public defenders’ allocation of resources, prosecutors’ charging decisions, and sentencing) they have largely failed to address the existence and consequences of implicit bias in connection with the mundane delivery of legal services. For example, a lawyer may fail to establish a healthy rapport with her client because the lawyer is unknowingly exhibiting alienating or aloof behaviors that are rooted in bias; she may make assumptions about her client’s values based on an inadequate understanding of her client’s culture; and she may communicate with clients differently depending on their race, sex, national origin, or sexual orientation.
Lawyers and legal scholars have not adequately probed the effects of implicit bias on the ways in which lawyers engage with—and serve—their clients. This has consequences for, and is reflected in, the content of basic legal education as well as the rules that govern lawyers’ professional conduct. Students may graduate from law school and be admitted to a bar without ever being required or encouraged to reflect on their own biases. Classes on cross-cultural communication are not typically required in law school and issues of race, culture, and bias—explicit or implicit—may not arise in discussions of the ethical obligations of lawyers.
This is less true in other professional disciplines, including health care and social work. In the sections that follow, I offer a comparative analysis of differences in the educational practices and standards of professional ethics that govern doctors and social workers, on the one hand, and attorneys on the other. The goal of this analysis is to call attention to the fact that law lags far behind these other disciplines when it comes to confronting and ameliorating the effects of implicit bias; another goal is to learn and, where appropriate, borrow from the norms and practices of these other professional communities.
The fields of law, social work, and medicine have many similarities, and yet their treatment of the significance of culture in communications between professionals and clients differs markedly. Social work and medicine—via their educational approaches and their codes of ethics—have done a better job than the law in training their professionals to function in a multi-cultural society. The law is moving in the right direction, though.
As legal scholarship continues to draw attention to the broad effects of implicit bias in the legal system, and as experiential education becomes a larger part of the law school curriculum bringing students into direct contact with clients from all walks of life, it is likely that there will be more opportunities for education that acknowledges the challenges of cross-cultural communication and the pernicious effects of implicit bias. Teaching concepts such as cultural humility in law school, and then emphasizing the importance of effective cross-cultural communication again in the Rules of Professional Conduct, will help lawyers deliver truly competent legal services to their clients.
The change to Rule 8.4 in the Model Rules of Professional Conduct for lawyers represents real progress in raising awareness of the problem of bias in members of the profession. And raising awareness of biases should work to change the norms around biases. As one commentator has warned, “[m]oderate biases are indirect, relying on norms for appropriate responses. If norms allow biases, they flourish.” Additionally, and crucially, the willingness to adapt the Rules along this dimension signals that the time may be right to make the other changes proposed in this article. Explicitly including language that recognizes the role of culture and identity in human interactions, as well as the dangers of unconscious bias, into the Rules of Professional Conduct will begin a conversation in the legal community about lawyers’ relationships with—and obligations to—their clients and should help nudge the norms in the profession.
I am not the first to suggest that law has something to learn from medicine’s treatment of culture and diversity. A commentator to the ABA Report on Diversity wrote: “[t]he same benefits of cultural and linguistic competence which the medical profession has experienced are transferable to the legal profession. Cultural and linguistic competence could be instituted as required coursework in law school and [continuing legal education] requirements, similar to ethics.” By expanding experiential learning opportunities, and by revising our Rules of Professional Conduct, the legal profession can begin to catch up to medicine and social work and root out cultural bias from the profession.
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