Understanding Diversity: The Changing Realities and Considerations in the Practice of Law in the Commonwealth of Virginia

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.

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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.

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