August 16, 2019 Diversity and Inclusion

Civility, Diversity and the Future of the Legal Profession

Patrick McKnight

The legal community is becoming increasingly cognizant of the need for an honest conversation regarding diversity inclusion, and professional civility. Respect and decorum play a particularly important role in our adversarial system of justice. In absolute terms, our profession is relatively small, but our extraordinary responsibilities mean we hold a special duty to model respect and common courtesy. Unfortunately, law continues to lag behind other professions in terms of diversity and inclusion. Despite significant challenges, the next generation of legal professionals has a unique opportunity to move the conversation forward.

Civility on the Decline?

Statistics indicate the overwhelming majority of Americans believe civility is on the decline.  Sometimes it seems like evidence can be found in each new political speech or social media post. Several lawyers made headlines in 2018 for outstandingly bad behavior including theft, bribery, and other examples of "contemptuous and sanctionable conduct.” The perceived decline of civility in society has been blamed on everything from the economy and technology to politics. As a new generation of digitally native legal professionals prepare to enter the workplace, it’s more important than ever to consider the potential repercussions.

Even the federal judiciary is not immune from inappropriate workplace behavior. Earlier this year, Chief Justice John Roberts said that “incivility or disrespect,” though more likely than overt sexual harassment, frequently goes unreported. In Colorado, an appeals court judge recently resigned after her unprofessional emails led to her suspension and eventual removal recommendation by the Colorado Commission on Judicial Discipline. The headlines are almost daily. 

The word “civility” derives from the Latin civilis, which refers to the responsibility of a civilian to behave according to social mores. Over time, the term has evolved to connote politeness, courtesy and respect. The word is littered across the legal landscape in phrases ranging from civil trials, civil procedure and civil actions, to civil rights, civil liberties and civil society. Inherent in all these concepts is a requisite level of respect and cooperation. For example, part of what made the civil rights movement “civil” was the rejection of violence and empathy for one’s enemies. When Dr. Martin Luther King went to Selma, Alabama, he did not proceed in the spirit of vanquishing an evil foe. Instead, Dr. King is remembered as a great leader in part because he inspired people through understanding and restraint instead of name-calling and contempt. In a civilized society, disagreements are adjudicated through communication and persuasion rather than violence and threats.

Because the rule of law is fundamental to civil society, lawyers have a unique responsibility to model respectful behavior at all times. A thought-provoking ABA article by Jayne R. Reardon identifies civility as the core of professionalism. Ms. Reardon highlights the inherent tension between zealous advocacy on the one hand and a professional code of civility on the other. In terms of young lawyers, Ms. Reardon points out that many enter the practice without adequate mentoring, and may rely on unfortunate caricatures of attorneys from television, films and popular culture.

Some observers have argued that incivility in society may be growing as a psychological byproduct of anxiety and negativity. In his recent book, “Enlightenment Now: The Case for Reason, Science, Humanism, and Progress,” cognitive scientist Steven Pinker makes this provocative claim. Pinker eloquently points out overwhelming statistics indicating worldwide poverty, violence and sickness have never been lower. Despite unprecedented progress and prosperity, Pinker argues the modern media has become alarmingly negative. He concludes this constant negativity leaves people in an increasingly distressed and anxious mental state.

As someone with a previous career before entering the legal field, I found the civility between lawyers a strikingly refreshing change in social norms. When I was a teacher, I routinely weathered insults and threats, and even occasionally dodged flying objects. “Having the book thrown at you” can be more than a figure of speech.

On the other hand, a general consensus seems to be developing that lawyers are becoming less courteous and more contentious. This unnecessary unpleasantness is bad for everyone from clients to judges, not to mention attorneys themselves who already work in one of the most demanding, high-pressure jobs in the world.

Diversity in the Legal Profession

While civility can be subjective and difficult to quantify, statistics on diversity in the legal profession are readily available. The latest statistics present a mixed picture, at best. According to the 2018 ABA National Lawyer Population Survey, the vast majority (64%) of attorneys are male and 85% are Caucasian. Research indicates that of the female attorneys employed in private practice, a disproportionate number are associates. Only 26.4% of Fortune 500 General Counsels, 34% of federal judges, and 32.4% of law school deans are female. Many remain optimistic these statistics will improve because the majority of matriculated law students in the United States are now women. Still, the overall proportion of female attorneys has only very slowly increased from 32% in 2008 to 36% in 2018.

By some measures, law remains the least racially diverse profession in the United States. Despite some prominent exceptions, the legal profession continues to experience an overwhelming lack of diversity. The proportion of attorneys identifying as African-American, Asian, Hawaiian/Pacific Islander, Hispanic, Multiracial or Native American, has only grown from 11% in 2008 to an underwhelming 15% in 2018.

Mentoring the Next Generation

It is clear that diversity, professionalism and civility remain ongoing issues. Many editorials have been written pointing fingers and placing blame. We require a strategy that goes beyond simply altering hiring practices. It seems clear the key to increasing the inclusivity and civility of the workplace lies in greater mentorship of the next generation. 

Mentorship is the process through which a more experienced individual helps in the personal and professional development of a less-experienced colleague. Effective mentorship should go beyond the basics of how to perform one’s job to encompass challenging life skills such as resiliency, networking and building social capital. The ABA offers several mentorship initiatives through the Young Lawyers Division and the Office of Diversity and Inclusion. Many firms and schools have instituted their own formal and informal mentorship programs. These are important steps in the right direction.

“Women lawyers need to be positively invested in the careers of other women lawyers,” Susan Smith Blakely argues in a recent ABA article. “Women lawyers need to become mentors to other women lawyers, and senior women lawyers need to be content that they have made it in the profession and move over to share the spotlight and opportunities with junior women.”

Mentorship is an ongoing process. It’s difficult to neatly encapsulate this process into marketing materials, PowerPoint presentations or catchy slogans. Personal relationships require hard work and uncomfortable conversations, but this is exactly what makes them so important.

Conclusion

While there is cause for cautious optimism, the next generation of legal professionals needs more than buzzwords and speeches to transform the workplace. Our goal should be to build one-on-one, personal relationships in order to support a new generation of leaders, one young lawyer at a time.

This may also require a change in mindset. Civility and inclusion should not be thought of as burdensome obligations or public-relation campaigns. Rather, they are an opportunity to make ourselves and our profession better. The amount of untapped talent waiting to be recognized is truly incredible. If the legal community seeks a more civil, respectful and inclusive conversation about the future of our society, let’s lead by example.

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Patrick McKnight

JD/MBA Candidate at Rutgers University, Philadelphia, PA, YLD