Nieves Bolaños very kindly introduced me last month as NELA’s new Vice President of Diversity, Equity, and Inclusion. I am also a co-chair of NELA’s Ethics and Sanctions Committee and Colorado Bar’s ethics committee. The rules of professional conduct and other legal and social norms purport to define “professionalism.” Smarter people than me, like Leah Goodridge and Shannon Cumberbatch, have explored how concepts of professionalism are shaped by and perpetuate racism and other oppressive ideologies.
Leah Goodridge notes that “The basis of professionalism as a racial construct is the belief that the racial hierarchy which produces the phenomenon will remain the same and that practitioners will adapt to it rather than challenge it.” And she asks that we discuss, in our workplaces and in NELA and other organizations, “How does professionalism as a racial construct manifest at this institution?” This question will be a focus of NELA’s Ethics Committee in upcoming meetings and a webinar. That committee is always seeking new members if you would like to join.
Shannon Cumberbatch explores the racism, sexism, and cisheteronormativity inherent in how professionalism contextualizes our appearance, particularly in the form of dress codes. She encourages firms and organizations with appearance standards or dress codes to critically reivew and ask whether those policies stem from a white racial frame or other oppressive ideology, whether they are accessible for all demographics, if they can be applied equitably, and whether the policy clearly communicates expectations. A policy must be applied equitably. A policy of lax enforcement communicates inconsistent expectations and favors those who feel comfortable not following a written policy. Equitable appearance standards are part of the process of fighting the inequity in concepts of professionalism. As Cumberbatch notes, the “unfortunate reality is that the average person’s perception of ‘professional’ has little to do with what we wear on our bodies, and more to do with our bodies themselves.” Uprooting these ideologies requires “unlearning and challenging oppressive ideologies and practices while replacing them with ones rooted in liberation.”
Our ethics rules literally legitimize racism, sexism, and other oppressive ideologies. Model Rule 8.4(g), the rule that prohibits discrimination and harassment related to the practice of law, allows “legitimate advice or advocacy” based on discriminatory factors. The rules do not define “legitimate,” but many jurisdictions interpret it based on relevance and not a moral judgment of overall ends. Note, Discriminatory Lawyers in a Discriminatory Bar: Rule 8.4(g) of the Model Rules of Professional Responsibility, 40 Harv. J.L. & Pub. Pol’y 773, 786 (2017). Rules that allow for “legitimate” discrimination are not rooted in liberation. There are countless other rules of professional conduct, practice standards, and local rules that perpetuate systemic inequity.
Cumberbatch explains that the “people in positions of greatest power in the profession have always had the ability to define and redefine all impressions of the profession for the public.” While not all NELA members reach the positions of greatest power, and props to those who do like Judge Charlotte Sweeney in Denver, many serve or can serve on committees with influence over those in such positions. These committees do not have to be machines for the status quo. In Colorado, all of you have to be is a lawyer to get on the committee that writes the suggested changes to the professional rules that our Supreme Court ultimately adopts. It’s probably the same in your jurisdiction. If you have time, you should think about applying to join one of those committees.
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