Invictus

                                Colleen Miller, Esq and Darrel Tillar Mason, Esq

The January 2019 issue of the VSB’s Invictus carried an insightful piece by Robert Pollock describing the lack of legal services for people with disabilities.  Mr. Pollack is correct that the needs of this sector of our population far outstrip the legal community’s ability, or to some extent willingness, to respond.  It is one of the more serious gaps in legal services in Virginia.  But the Virginia bar should know that the disAbility Law Center of Virginia (“dLCV”) is one resource that is available to assist in filling that gap.

                                What the dLCV Does

The dLCV is a statewide nonprofit organization with a mission to prevent abuse and neglect of people with disabilities and to promote independence, choice, and full inclusion for all people with disabilities.  dLCV provides its services at no cost to the individual and is funded by federal grants supplemented by private donations.  

Census estimates find that there are almost one million people with disabilities living in Virginia.  That number may be low, we believe, as the dLCV often works with elders who have acquired their disabilities through the aging process yet do not think of themselves as “disabled.”  

A million Virginians, each with his or her own challenges and legal needs – including guardianships, appropriate special education services, accessible public transportation, workplace accommodations,   public building accessibility, well, the list may be nearly as long as the number of people on it. Their numbers continue to grow.

                                The Need is Enormous

It is an enormous task, as you might imagine.  With a limited staff of 36 committed individuals, dLCV strives to address many important systemic issues through legislation and policy making, as well as providing individual assistance to as many as we can.

In order to stretch our resources as far as possible, we have created excellent self-advocacy tools and make them available on our website: www.dlcv.org  dLCV’s website has step-by-step introductory guidance in many areas such as Social Security, Special Education and Mental Health Advanced Directives, with videos, fact sheets and links to solid resources.  Practitioners will find some of these useful with their own clients.

The dLCV also strives to expand the legal community’s willingness to serve Virginia’s disabled by offering CLEs on specific subjects, by assisting attorneys willing to offer pro bono legal services, and with an active volunteer program that welcomes all to help us ensure a safe and inclusive Commonwealth.  dLCV’s volunteer program is flexible, gratefully accepting any level of time or talent.  Financial support is always helpful, as well.  

You may also contact us with any queries that you may have.

                                 For More Information

Please do not hesitate to contact us with any queries you may have.  If you would like to learn more, please visit our website, email us at info@dlcv.org or call 1-800-552-3962.   

Authors

Colleen Miller is the Executive Director of the disAbility Law Center of Virginia, formerly known as the Virginia Office for Protection and Advocacy.  She has served as the Director of Virginia’s protection and advocacy system since 2003.  Previously, she was the litigation director for the New Mexico Protection and Advocacy System, and a senior trial attorney for the US Department of Justice.  Darrel Tillar Mason is an attorney in private practice, specializing in the needs of people with disabilities.  Over her thirty five year plus legal career, she has had numerous gubernatorial appointments, as well as appointments by the Supreme Court of Virginia to councils and commissions dealing with issues affecting public education, civil rights, and the practice of law.  She serves on the Board for the disAbility Law Center Foundation.  dLCV is a statewide nonprofit organization, with its main office in Richmond, Virginia.

Coverage of the 2018 Forum on Diversity and Inclusion in the Legal Profession

by Chris Fortier

“Everyone tries to get the top students with the best grades, highest ranks, and the right experience. Those criteria eliminated nearly everyone. You set [up a hiring process] so that you can create a reason for the rejection.” When determining that hiring practices were not yielding the results his organization wanted, Carlos Brown, Esq., found that his organization needed to adjust hiring practices to bring in successful candidates. He noted that at Dominion, “we asked if someone who has 5 years of a certain experience versus having ‘a smart lawyer’ would bring a more diverse pool of applicants to fulfill the goal of diversifying our workforce.”

Session Four of the Forum had a top quality panel focusing on employment issues in the legal profession. From hiring to retention and firm life, the panel outlined issues attorneys face and busted some myths. The panel consisted of Victor Cardwell, Esq., Carlos Brown, Esq. (from Dominion Energy), Cynthia Hudson, Esq., David Harless, Esq., Jessica Childress, Esq., and Candace Blydenburgh, Esq.

Ms. Hudson noted that there are plenty of public sector myths to bust. Recently, she led a team to examine job descriptions in the Attorney General’s office. First, she asked if her office was looking for the right thing. “Are the expectations we set out not meeting our needs?” As a result, her office suspended job performance reviews to free up managers to evaluate if job descriptions were meeting those needs. She found that these job descriptions were from the perspective of an incumbent from years ago.

Ms. Blydenburgh challenged the myth that you can only go to a select number of law schools to hire. She noted that there is a diversity of alma maters among decision makers. She indicated that there is a lot of untapped talent from law schools not represented at major law firms. “There are places where people are just as talented technically but provide richer experiences. There are quality individuals who will succeed and thrive.”

The panel turned to hiring and promotion into firm leadership. Ms. Childress noted her employment history as an associate at global firms where they recruited top schools with minimal diversity. She observed students from schools outside the top 10 outworking the “top students.” “The top school strategy makes recruiting these students on the outside nearly impossible. Associates will ask ‘why are they not hiring more people of color,’ especially when so many attorneys of color are available.” She cautioned that associate attrition happens when attorneys get ignored (by not getting invited to lunch or happy hour). Little gestures such as calling someone a “colleague” as opposed to “associate” boosts someone’s confidence. Ms. Blydenburgh urged inclusivity, noting, “if you are manager, say hello to everyone. Not saying hello to that one person may make them feel excluded.”

When it came to mentorship, Mr. Brown noted that one can find mentors on your own. Potential mentees should provide space to see people’s motives. The goal is to promote strong individuals with great talent. Ms. Childress reminded attendees that people want to feel valued and that a mentor needs to be like the mentee. She urged mentorship programs to get to know potential individuals, especially with life experiences, ambitions, and common interests. Mr. Harless indicated that he is a product of a pipeline, as two local lawyers mentored him in his youth. “Lack of opportunity is a silently prominent issue. If we want our workforce to start looking like communities we serve, we need to examine our basics. The best lawyers are evaluated by who they are and what they value. Law firms need to identify promising young people with desire to become lawyers and guide them to the profession.”

Transparency with your colleagues can go a long way towards retention. Mr. Cardwell shared that he cc’s an individual who has worked on a matter on all subsequent communications so that they see the resolution of the matter. Mr. Harless discussed his philosophy of transparency with his associates at his firm, as they “want to know how I am doing and how my firm is doing.” By having these discussions, everyone at his firm sees how they can fit in the future of the firm. He emphasized the need to drill down with every individual. He urged attendees to ask, “What do they need? How do they feel affirmation? You practice it with that individual.”

____________________________________________________________________

Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article do not reflect those of SSA or the Federal Government.

Coverage of the 2018 Forum on Diversity and Inclusion in the Legal Profession

by Chris Fortier

How do you deal with today’s climate, especially if your goal is to retain new attorneys for the long term? Mentorship can guide a young attorney through the challenges, but these mentorships have to be thought out. The most successful mentoring programs match mentors and mentees based on personality and ambition, with the aim to create an engaging connection. A long term mentor-mentee relationship impacts the younger person’s growth in the profession or the organization. The challenge is to inspire people to do more and join us in our work.

The third panel at the forum focused on personal success with careers in the law. Numerous topics were discussed, such as how to include diversity and inclusion in your everyday actions in the firm. The moderator was Alex Levay, Esq., and panelists included Debra Powers, Esq., Michael HuYoung, Esq., Judge Rondelle Herman, and Professor Doron Samuel-Siegel.

Professor Samuel-Siegel urged redoubling focus and intent on causes such as equal justice and anti-racism. Diversity is not only good because of the varying perspectives at the table — but is just due to our history of injustice that needs to be reconciled. Ms. Powers noted that some metrics conclude that the legal industry will see gender parity in 2081. “The difference has to come from us as we have to do whatever we can to get there.”

Judge Herman reminded the attendees that judges have to keep professional and personal sides separate. “You have to be mindful of who you are and what you are doing.” Attorneys miss cultural nuances (such as best friends not knowing their legal names, as nicknames are primarily used in some cultures). She studies current fashion, music, and lingo to help her relate with the people in her courtroom.

There is power in diversity and inclusion. Ms. Powers urged attendees to think about their involvement in major decisions in their firms. They should ask, “What about diversity? Are we including different types of people, especially when electing organization leaders.” Ms. Powers recommended attendees look at practice areas and socioeconomic issues to find different types of diversity. Ask questions such as 1) how do young lawyers fit into your networking event and 2) what do they need to show their best in front of a hiring partner?

Professor Samuel-Siegel noted that with recruitment of faculty or students, schools and programs must think in terms of getting youth in the process at younger ages. Attorneys can design programs to prepare students for law school. “We can go to the K-12 level to spark the flame for law.” For example, Rule of Law Day (a Diversity Conference co-sponsored project) reaches to Richmond-area middle school and high school youth. Mr. HuYoung has kept in touch with program alumni, many of whom are in law school. He urged attendees to show someone else the way and share their wisdom.

Ms. Powers emphasized that mentorships matter but there are costs to attend meetings and be part of bars. Firms pay fewer bar membership dues, and young attorneys have to balance priorities. For example, “Do you work (and eat) or attend the meeting (and not make money)?” She noted that, “you have to see and be seen in order to get noticed. Small gestures matter. Introduce yourself to the lone person in the room, talk to them, and invite them back. That may be the difference. You have to tell others someone is great in order for others to notice them.” Professor Samuel-Siegel observed that those from disadvantaged backgrounds in the law get approached to serve on committees or to mentor but such work can be tiring. Welcoming gestures make the first years of practice easier for new attorneys.

__________________________________________________________________

Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article do not reflect the views of SSA or the Federal Government.

Coverage of the 2018 Forum on Diversity and Inclusion in the Legal Profession

By Chris Fortier

Does your client know the difference between “not guilty” and “no contest”? Your client needs to know that difference, and they may come from a culture where the two terms mean the same concept. As Virginia has become home to immigrants from all over the world, our legal system is adjusting to different interpretations of the law, different cultural patterns, and a better understanding of how its citizens understand and access justice. In order to provide due process, lawyers and judges have a duty to explain the basics to, respectively, their clients and unrepresented litigants.

The first panel at the forum examined the changing demographics of Virginia and how attorneys need to adapt their practices to meet clients’ needs. Judge Manuel Capsalis moderated the program while the panelists consisted of Frank Thomas, Esq. of Orange County, Buta Biberaj, Esq. of Leesburg, and Doris Henderson Causey, Esq. of Richmond. The panel began the program by defining diversity. They noted that lots of people have struggled to define it, as it is an organic and evolving term.

The panel explored how diversity factors into an attorney’s work. Client needs have changed as the demographics have diversified. For instance, Fairfax County has interpreters for 100 different languages. Ms. Biberaj noted that as Loudoun County has diversified, an economic disparity has appeared. Ms. Causey noted that the cost of elder care drives more people below the poverty line. More refugees come to Legal Aid creating the need to translate different languages and dialects. Mr. Thomas observed that clients are more sophisticated about legal issues such as immigration status or property laws.

The use of interpreters have risen over the past 20 years. However, lawyers and court personnel should get a translator to the exact dialect of the client’s language. For example, there are 32 dialects of Spanish. Courts and attorneys need to make sure that clients understand their rights because waiving them endangers those rights. Due process challenges may arise out of interpreting the wrong dialect.

The panel then explored if changing demographics makes attorneys rethink representations of clients. Are there new legal needs that you were not dealing with 20-25 years ago? Ms. Bierbaj noted that when “you are mindful of implicit bias, you speak and listen differently. You have to make more effort to bring out your client’s humanity as it is not implied.” For example, some clients are assumed to be a member of community, to come from a good family, and have a future. Other clients will have to prove those assumptions for more favorable treatment.

Ms. Causey noted that in legal aid, lawyers have to educate as these clients can be women who come from cultures that do not grant women rights, or immigrants who struggle to get out of a lease with a manipulative landlord. These clients fear the manipulative landlord or the abusive spouse. Ms. Causey noted that applicants see naturalization applications as “outing” themselves, putting their existence in the country at risk. They fear ICE and see people they know getting deported.

The discussion turned to the changing role of attorney with new demographics. Ms. Bierbaj noted that clients will be deferential to professionals due to the trust they gain through their status. The lawyer serves a critical role as the legal and cultural bridge between the court and the client. When asked how to properly represent these clients, Ms. Bierbaj stated, “Clients must understand their role in the process and what the process does to them (including immigration consequences).” Mr. Thomas said, “Listen to the client and figure out what they need. Start with no preconceptions and have humility.” Ms. Causey advised, “figure out the client’s legal needs and build a plan for those needs. State in the retainer what you are doing and translate it through Google Translate.” Mr. Thomas noted that attorneys need to explain the documents that the client signs in granular detail.

When in court, Ms. Bierbaj shared that the attorney has to “be comfortable with being uncomfortable.” Judge Capsalis noted that “attorneys should use opening statements to educate on the complexities of the case, especially cultural/ethnic issues that may influence the case. Don’t forget the duty to your client (not to everyone else in the room).” Other judges stated that attorneys should raise cultural issues, as they may make the difference in the case.

__________________________________________________________

Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article do not reflect those of SSA or the Federal Government.

Coverage of the 2018 Forum on Diversity and Inclusion in the Legal Profession

By Chris Fortier

The Forum on Diversity in the Legal Profession started emphatically with Keith and Dana Cutler of “Couples Court with the Cutlers.” The Cutlers provided insight, intelligence, relatability, and chemistry to this “real talk” presentation. It focused on how to not step on one another’s toes and educated attendees on the difference between implicit bias and microaggressions, focusing on the grey areas to provide valuable advice. The program was based on the belief that no one wants to marginalize others, nor be marginalized.

The Cutlers took the attendees through examples of statements to see if they are implicit bias. They provided four choices (“I don’t see color.” “You are so articulate.” “You should be good at this.” “I went to the store the other day they gypped me out of my discount.”) and asked the attendees to choose the one statement that was implicit bias. The attendees thought all the statements were implicit bias but they could choose only one! While “You are so articulate” is the most obvious example because it shows the underlying expectation that they were not articulate, “I don’t see color” is another example. You are saying you do not see their life experiences. “You should be good at this” means that you are expected to be something based on your race or other external characteristic. “Gypping” comes out of word gypsy who were thought of as being thieves. Does denial of discount mean a theft? Possibly not.

The Cutlers noted that the Judicial Canons and the Code of Professional Conduct both indicate that if you provide an argument as an appeal to improper bias or prejudice, and the judge acts on it, such an act may constitute misconduct. Prohibition on expressions manifesting bias or prejudice extends to out of court behavior. Rules such as Virginia Rule of Professional Conduct 8.4(e) and ABA Model Rule 8.4(g) address these issues.

The Cutlers helped the attendees distinguish microaggressions and implicit bias using memes to illustrate the concepts that reflected life experiences. A microaggression is a statement, action, or incident that shows as an aggression. This is an outward action based on/rooted in biases and will almost always a negative impact. Derald Wing Sue, Phd., in Psychology Today, defines microaggressions as “the everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership.” The Cutlers analogized microaggressions to mosquito bites. These can happen innocently or where you do not even realize that you are doing it. However, these can annoy those who are bitten, and some populations are more susceptible to these bites (microaggression) than others. For example, you are in a law firm, you are looking to get a job done. You grab the first person you see, they get the job done. You get comfortable with that person. However, if you do not give that chance to a female or minority, or LGBT person, they do not get that chance to prove themselves. If you are in position of responsibility, make a point to reach out to diverse populations. The Cutlers encouraged attendees to make a point to invite everyone in a firm to projects, events, and even lunch.

The Cutlers explored implicit bias by noting that it can go both ways. According to the Perception Institute, “the term ‘implicit bias’ to describe when we have attitudes towards people or associate stereotypes with them without our conscious knowledge.” People of color’s implicit bias can keep them out of their zone, just like it does for white people. It can keep people from being adventuresome. Implicit bias is how we think, can have neutral or positive outcome, not a conscious decision to be biased to which you are comfortable.

They showed the example of a painting in a restaurant in another country that had panda bears with sombreros. The restaurant was previously Chinese and then became a Mexican restaurant as the owners repurposed the paintings for the new restaurant. Would the picture be racially or ethnically insensitive? The attendees had a mixed response and provided a great discussion from the different viewpoints. The attendees knew the context of the picture, and viewpoints were different across the races of the attendees.

The Cutlers then focused the discussion on what an average person can do daily. When you are blind to something, you cannot see it. It is about being a courageous collaborator on a microcosmic scale. People have to be honest and you may not always like it. They noted that “you have to make a space to share without feeling criticized or judged. They said that this can be accomplished by being gracious and direct, listening, encouraging expansion, and suggesting exploration.”

The Cutlers encouraged attendees to be “micro-resistant” by diversifying social media follows and likes, going to diversity events, and “seeing” microaggressions when they occur. When you see a microaggression, they encouraged calling it out. They also encouraged committing to personal growth and change, being open to different viewpoints, listening, getting comfortable with being uncomfortable, and listening with your heart and head. As lawyers, the Cutlers urged us to go to different ethnic events, join a diverse bar (and go to the meetings), read from a different viewpoint, go to a different worship service.

With the Cutlers’ presentation complete, the forum’s attendees were ready to dive into the deeper issues of diversity and inclusion in the legal profession.

____________________________________________________________________

Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.