Published July 10, 2020 by
By Marc Firestone and David Douglass
The protests and demonstrations arising from the murder of George Floyd and so many others — Ahmaud Arbery, Breonna Taylor and Rayshard Brooks, in just recent weeks — opened the world’s eyes to the extent of systemic racism here in the U.S. and beyond. All of us in the legal profession — a profession uniquely positioned to advance equal justice for all — should find it is unconscionable that society permits racism and its accompanying inequities to continue to plague our country as virulently as COVID-19.
Yet, despite our roles as practitioners, judges, legislators, and civic and community leaders, the legal profession is hardly immune to systemic and institutional racism. In fact, it remains one of the least diverse professions in the U.S. It is therefore vital that the profession work both to dismantle systemic racism and to promote diverse, inclusive institutions — beginning from within.
Those propositions are, unfortunately, hardly new. In 2012, the Institute for Inclusion in the Legal Profession, or IILP, a nonprofit that aims to advance diversity in all its facets throughout the legal profession, proposed the addition of a diversity/inclusion rule to the American Bar Association.
The IILP proposed that “there be a new section that would specifically make efforts to increase diversity and inclusion in the legal profession a matter of ethics and professional conduct” and, consistent with the preamble to the ABA Model Rules of Professional Conduct, requested it be adopted and made a permanent part of those model rules. At that time, the ABA rejected this call, concluding, “Model Rule 8.4 Comment  already clarifies ‘that any conduct that manifests by words or conduct bias or prejudice is prejudicial to the administration of justice and, therefore, is prohibited.'”
In 2018, the ABA took an incremental step forward by raising anti-discrimination from a mere comment, which is unenforceable, and incorporating it into Model Rule 8.4. In this time, however, it is clear that the profession must do more than merely agree that discrimination is wrong and unethical.
We, as a profession and as individual practitioners, must move beyond prohibiting bad conduct. We must change the profession for the better.
The mass protests and demonstrations for change that are igniting the world present us with another opportunity to act — and this time, we cannot allow the status quo to prevail. The recognition and acknowledgment of the extent of systemic racism and inequality are spurring many lawyers to take action, as seen in the sudden proliferation of training and continuing legal education programs that address not only inclusion and diversity but racism within the profession. These steps bring hope, but we can do more.
At a time when so many lawyers are asking what they as individuals can do, the answer is this: Call for the ABA and your state and local bar associations to explicitly declare efforts to increase diversity and inclusion in the profession to be a matter of ethics and professional conduct.
We strongly believe that it’s time to implement a model rule that establishes an ethical obligation to fight racism, advance equality and promote inclusion in the profession and society. In this moment of national recognition of historical institutional racism and a rapidly developing consensus that it is time to act, we as lawyers must be at the forefront of this movement.
Whenever our society has faced difficult legal and policy challenges, it has looked to the legal profession for leadership. We cannot afford this time to be different. Individual lawyers can and should act to combat racism wherever they confront it, in the legal system, their firms and communities.
Already, lawyers, law firms and legal departments are mobilizing to join the fight to end institutional racism. They are organizing to educate allies, they are developing initiatives to increase diversity and inclusion in the profession — this time building upon, rather than debating, the premise that diverse lawyers are indeed as qualified, capable and ambitious as their counterparts, and they are lending their skills and resources to support anti-racist organizations and individuals.
Bar associations have an important and distinct leadership role to play. They both reflect and express the profession’s standards.
The ABA, by example, started as a racially exclusionary organization but evolved to admit African Americans and women and prohibit discriminatory conduct. This evolution encouraged legal organizations to act to ensure that their lawyers did not discriminate.
The ABA has similarly led the profession’s response to ensure that every person has meaningful access to justice by calling upon lawyers to provide legal services pro bono. In 1983, the ABA adopted Model Rule 6.1 (further strengthening it in 1993), which states, “every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono publico services per year.”
We have seen the change that can take place when lawyers take on pro bono cases. Their sense of and commitment to the profession’s ability to improve society is restored and renewed. They are exposed to lives, experiences and social conditions that broaden understanding, create empathy, and advance justice for all.
Notably, some of the great pro bono cases of our time have involved fighting for equality. By adopting the 50-hour aspirational standard for pro bono work, the profession has already taken an important step toward advancing racial equality. The ABA’s 50-hour standard can also serve as the precedent for taking the next logical step. The pro bono rule is a signpost on the road to change.
Calling upon lawyers to engage in anti-racist activities does not oblige or force them to adopt a specific position or engage in any form of speech any more than urging them to provide pro bono legal services forces them to provide any specific pro bono work or support any particular organization or cause. Rather, adopting a rule of ethics or professional responsibility simply reflects a received consensus.
Does anyone seriously contend that pro bono legal work or opposition to racism are antithetical in a profession that has sworn to uphold the law? Conversely, while the country
is coming together to address historic racism, what does it say for bar associations not to speak out in favor of society, starting from within its own membership, to help in this essential effort?
We need to encourage continued engagement in the discussions and debates around the topic that acknowledge racial inequity and embrace the fact that there will be varying solutions and approaches to delivering equity. Lawyers are trained to frame presentation and debate on difficult issues; it is in our DNA. We have a responsibility to demonstrate that painful topics, even deeply divisive ones, can be constructively and peaceably navigated.
But even lawyers sometimes need to be spurred into action. The Model Rules of Professional Conduct give us permission and agency to speak. They can help advance change by helping lawyers take the necessary first step — establishing agreement on the need for change.
Amending our model rules will encourage our profession to engage meaningfully in the fight to end institutional racism and promote social equity. It will encourage lawyers to actively pursue and create tools to move forward in this effort.
Like the millions of people around the world who have gathered in the streets and other public spaces to stand up to injustice, we too can organize from within our profession to create change from the bottom up so as to support efforts to eliminate injustice within the legal profession and the broader legal system. Each of us can commit to greater education and engagement on race, to understand the complete history and systems that have perpetuated racial inequality throughout the U.S. to help compel and propel ripples of change throughout the profession.
Diversity and inclusion are first and foremost matters of social justice. The legal profession cannot afford to lag on the issue. We are a profession of leaders and problem-solvers who are on the front lines, protecting, preserving and promulgating equity and fairness. We have an ethical obligation to oppose racism and to lead the renewed fight for the equality that is the unrealized promise of this nation.
For more than a decade, the IILP has clearly and methodically mapped the rationales and strategies of how this can be done. The groundwork has been laid. It is time for all lawyers to act to dismantle the systemic and institutional racism in our profession. Now.
Marc Firestone is president of external affairs and general counsel at Philip Morris International Inc. He is a co-founder and the chairman of the IILP.
David L. Douglass is managing partner of the Washington, D.C., office at Sheppard Mullin Richter & Hampton LLP and sits on the advisory board of the IILP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.