Standard 4.4 on Race Equity, Disability Diversity, Cross-Cultural Sensitivity, and Cultural Humility
Standard
A legal aid organization should ensure that its staff and governing body has the awareness, attitude, skills, knowledge, and resources necessary to provide assistance in a culturally competent manner and in order to be responsive to, and aligned with, the interests of those people most affected by poverty, racism, discrimination, and other forms of structural oppression.
Commentary
General Considerations
Each legal aid organization has a fundamental responsibility to establish a relationship of confidence and trust with the clients it represents and to understand and respond to the needs of all the multicultural communities and clients it serves, including those with disabilities or are racially, culturally, or linguistically diverse. Building accountability with the clients and communities served is critical to ensuring that the work of the legal aid organization is responsive to, and aligned with, the interests of those people most affected by poverty, racism, discrimination, and other forms of structural oppression. This Standard encourages legal aid organization to build long-term relationships with clients and communities in ways that acknowledge lived experiences, create partnerships that can shift power to communities, and challenge the structural oppressions and exclusionary practices that created the need for legal services.
This Standard and commentary address the specific responsibility for legal aid organizations to understand the impact of oppression related to race, gender, LGBTQ+ identity, ethnicity, ability, language, and culture on the delivery of legal services and the justice system. A legal aid organization has a responsibility to address impediments that arise on a structural, institutional, and individual level within the organization that prevents effective responsiveness, accountability, and legal representation to individuals. Organizations are encouraged to understand the different types of racism and discrimination and the practices of cultural humility and cultural competence. Standards 2.3 and 5.7 address legal aid organizations' responsibility to promote and implement language justice.
Structural racism is the historical creation through slavery, colonization, and genocide-impacting systems, of educational, economic, and criminal justice systems that create and continue to produce ongoing negative outcomes for underrepresented groups while providing advantages to people who are white. Institutional racism refers specifically to the ways in which institutional policies and practices create different outcomes for different racial groups. Institutional policies may never mention any racial group, but their effect is to create advantages for whites and disadvantages for people from groups classified as people of color. Individual racism refers to one's own behaviors and beliefs, whether conscious or unconscious, around race.
Disability discrimination is the unlawful treatment of an individual based on that individual's real or perceived disabilities. Discrimination can occur through institutional polices or practices that create barriers to access for people with disabilities. The discrimination does not have to be intentional. The treatment could be a one-off action, the application of a rule or policy or the existence of physical or communication barriers which make accessing something difficult or impossible.
Culture should be defined broadly and refers to the range of similarities and differences in individual and community characteristics including national origin, membership in a tribal group, geographical location, language, race, color, disability, ethnicity, gender, age, religion, sexual orientation, gender identity or expression, social economic status, veteran status, historical and individual trauma, and family structure. In understanding what culture means, it is best to learn what it means in the context of the community that the legal aid organization serves while understanding the organization's own culture and how it impacts the clients and communities it serves.
Cultural competence and cultural humility require more than an absence of bias or discrimination. Cultural humility involves entering a relationship with another person with the intention of honoring their beliefs, customs, and values. It entails an ongoing process of self-awareness combined with a willingness to learn from others. It is a multi-dimensional concept that includes lifelong learning and critical self-reflection to understand and recognize our complexities as human beings. Basic concepts of cultural humility are: (1) acknowledgement of the importance of culture in people's lives; (2) respect for cultural differences; (3) minimization of any negative consequences of cultural differences; and (4) specifically focusing on recognizing and challenging the power imbalances that are inherent in our own institutions, for example, in certain relationships such as that between the attorney and client.
Cultural competence must start with cultural humility and is a skill that can be taught, trained, and achieved. It is often described as necessary for working effectively with diverse clients. To be culturally competent in legal aid means having the capacity to provide effective legal assistance that is grounded in an awareness of, and sensitivity to, the diverse cultures in the legal aid organization's service area. This also includes understanding the impact of the practitioner's own experiences and beliefs on the relationship.
Cultural competence and cultural humility are particularly important with racially, ethnically, and culturally distinct communities, and with persons who primarily use a language other than English. Cultural competence is also important with persons with disabilities for whom there are barriers to communication or accessibility that might impact the formation of a relationship of trust necessary for effective representation, and with others who share distinct characteristics, histories, and cultures that call for heightened awareness and sensitivity, such as identifying as LGBTQ+, those with a disability, and those from indigenous communities. The shared beliefs, histories, values, and customs that define a cultural group can have a deeply significant impact on communication between the legal aid organization and the client or community group. Cultural competence and the principles of cultural humility must be practiced within the legal aid organization so that authentic relationships can be practiced externally, and authentic, clear communication occurs. An essential component of cultural humility and race equity is recognizing and resisting the temptation to impose one's own cultural values, stereotypes, or ways/methods of communicating onto a group or individual.
Sometimes a legal aid organization may not be aware of its impact on the client, as unconscious bias may be present, or the organization is not aware of its own culture. An organization's culture, values, and beliefs, and those of individual attorneys can impact what legal priorities the organization sets - the way in which clients and issues are valued or devalued, how the attorney-client relationship is formed, and the conduct of the representation. It is important to recognize that imposing dominant cultural (white/colonizer) norms in all these ways can negatively impact the experiences of a legal aid organization's clients. To address these factors, the organization and the attorney should examine their institutional and individual beliefs and values around worthiness, credibility, trust, accountability, and justice, and how they impact the clients and communities being served.
Legal Aid Organizations' Responsibilities with Regard to Cultural Competence and Cultural Humility
A starting point for this work is to conduct an internal assessment to understand internal factors that impede both community-based accountability and client and community access as a result of institutional racism and additional oppressions. These types of assessment tools are widely available.
Prior to working with a multicultural community, the legal aid organization should develop an understanding of the diverse community and the multicultural issues and histories relevant to the client base. Race equity and cultural humility involve how the legal aid organization operates, including how it hires and trains its staff. The organization should engage in recruitment, hiring, and retention practices that create a diverse staff that is representative of the communities it serves. The organization should allocate specific resources to support the ongoing practices of cultural competency, cultural humility, and race and disability equity. Finally, these practices call for the legal aid organization to consistently and deeply connect with communities in its service area to understand their needs priorities and whether the legal aid organization is meeting those needs and focusing on those priorities. Because institutional racism may impact the governing body, it is important to include the governing body in these assessments.
The Impact of Cultural Humility on Client Representation
A legal aid organization needs to be aware of how the cultural values of both its staff and its clients can affect representation. A number of areas in which cultural competence is important are discussed in Standards related to individual representation and the legal aid organization's responsibilities regarding various forms of representation.
Generally, effective representation depends on a practitioner's capacity to form a trusting relationship with the client and to understand the intended meaning of the client's words, behaviors, and expressions, as well as the impact of the attorney's own words, behaviors, and expressions. By virtue of the immense number of cultures, it is impossible for one person to understand and know about all cultures. Practicing cultural humility and pursuing effective training is vital for all legal professionals. Practicing cultural humility and having an understanding of the different types of racism or discrimination should help the practitioner communicate more effectively with clients and community groups to establish trust and to understand the client's or community's objectives.
An underlying premise of all representation is that the client sets the objectives of the representation. In explaining alternatives and their potential consequences, a practitioner may be called upon to accept a decision by a client that in the attorney's value system seems imprudent. Or the attorney may advocate for a strategy or position that the client finds unwise. It is important for practitioners to listen carefully to their client's stated objective and not to insist on outcomes that reflect the practitioner's - rather than the client's - judgment of what constitutes success in a case. For example, clients with perceived diminished capacity may have their stated objectives overruled or ignored in favor of others established by the practitioner.
It is also important that the practitioner be aware of how cultural values can affect their own and a client's reaction to conflict. A cultural value to avoid conflict, for example, can significantly affect how a case proceeds and the communication between the client and practitioner. In many cultures, there is a strong value of not directly disagreeing with others in conversation or only indirectly addressing sensitive matters. Practitioners who are unaware of their own relationship to conflict or the impact of conflict on a client may not be able easily to discern the client’s actual desired objective apart from the attorney's preference.
The legal aid organization and practitioner must be aware that some communities have good reason not to trust the legal system, as it has harmed them in the past or continues to harm them and their communities. Some clients prefer community-based restorative justice practices or other means of resolving an injustice. The difference between collective and individualistic cultures can also affect who the community, client, or attorney feels should be involved in decisions about a legal problem or how that problem should be approached. For example, some clients may expect their parents or community members to play an important role in deciding what should happen in matter. The attorney may assume that it should be the client's decision alone or may not understand the collective impact of the issue. What the practitioners might see as inappropriate, the client might see as necessary and expected. In such circumstances, the practitioner should seek to find a culturally appropriate way, consistent with the lawyer's obligations under the rules of professional conduct, to meet the client's preferences for decision-making or a collective process and to avoid any potential detrimental impacts on the attorney-client privilege and the duty of confidentiality. If they cannot, the practitioner may need to decline the representation or withdraw from an ongoing one. Communication, creativity, and self-awareness are key in these circumstances.
Practitioners need to recognize when an appropriate level of trust and confidence has not been established with a client and how the practitioner may have contributed to a misunderstanding. The practitioner may in such circumstances need to reach out to others to have a frank conversation about how cultural differences, racism, or other types of oppression may have played a part, though taking care to preserve client confidentiality. Staff should feel comfortable accepting and seeking such advice and guidance to create a safe and productive multicultural workplace and gain a better understanding of themselves and the power dynamics inherent in client-attorney relationships. These types of conversations should be encouraged and supported by the legal aid organization.
A practitioner's ability to present clients' cases to adversaries, agency personnel, hearing officers, and judges is enhanced when a practitioner is knowledgeable about, and attentive to, possible broader issues of bias and injustice in these systems, as well as the application of dominant cultural values in decision-making. To be an effective advocate for a client, the practitioner is called upon to address these broad issues and educate the decision-makers about them. The attorney may need to be a bridge to explain to the decision-maker about the client's perspective and how the requirements of the legal system may seem strange, unfair, or threatening, or provide information about historical injustice that impact the client's case. For example, a client's reluctance to participate in counseling that is ordered by a court can be viewed in the context of understanding it as coercive or an attempt at forcing the client to adhere to dominant cultural norms. Many times, oppressed people have been labeled as "mentally ill" in order to control and harm them rather than to help or support them. Understanding the client's resistance, the practitioner may seek to create a client-centered alternative that meets the client's needs and satisfies the court.
Legal Aid Organization Operation
A legal aid organization should function in ways that demonstrate a commitment to equity, inclusion, and diversity, as well an understanding of how racism, discrimination, and poverty intersect in this country. To the degree possible, its staff and governing body should reflect the diversity of the populations that it serves. The legal aid organization should have delivery strategies to respond to the needs of the community including the language used, accommodation for people with disabilities, diverse ways to connect with advocates, and understanding the history, goals, and culture of the communities and clients served. It should have a staff that is well-trained in principles of cultural humility, cultural competence, anti-racism, and anti-oppression. A legal aid organization should develop practices, policies, and organizational structures that are responsive to the diverse cultures it serves. The organization should regularly assess itself in these areas to understand its progress and areas for improvement.
Legal aid organization appearance. There are many small, but important details that convey a multicultural atmosphere to persons contacting a legal aid organization. The legal aid organization's physical environment, staff dress, and materials and resources on display for clients should reflect respect for the cultures and ethnic backgrounds of the clients served by the legal aid organization. A legal aid organization should have appropriately diverse resources and educational materials available and on display and encourage people to use them. Intake forms should provide options that recognize preferred gender identity and pronouns, multiracial identity, and varied family structures, including those of domestic partners, and have accessibility features for persons with disabilities.
Acquisition and Institutionalization of Cultural Humility and Cultural Competence
It is important to note that developing and maintaining cultural competence and humility is an ongoing process. The many communities in a legal aid organization's service area change, and the legal aid organization needs to be aware of such changes and adjust to them. Legal aid organizations with services areas having many culturally distinct communities will not be able to immediately develop equal competence or trusting relationships with each. It should concentrate first on the communities facing the greatest barriers to justice in its service area, while striving to develop cultural fluency and connection with and accountability to all. Successful interaction with isolated communities will continuously increase the knowledge and insight into those communities and allow for a deepening understanding of how best to serve them. A legal aid organization should develop ways to record that developing body of insight and make it available to new staff as they join the organization.
Evaluation
It is important for a legal aid organization periodically to assess the degree to which it is successfully reaching out to and serving its diverse communities. Cultural responsiveness is an ongoing process; it is not something that is achieved once and is then complete. It should examine rates of utilization of all its services by the diverse populations in its service area, including persons with disabilities, in comparison to their percentage of utilized services by the overall low-income population. It should also assess the degree to which it has been effective in providing services, including the commitment to establish organizational cultural competence, and should involve a commitment to maintain it through periodic reassessments and adjustments. Evaluation should also include usability testing of online resources, along with an assessment of its internal operations and whether they are adequately supporting staff in the areas of cultural humility and competence and understanding racism and its impacts.