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ANSWERING THE CALL TO SERVE: THE NEED FOR CULTURAL COMPETENCY IN THE LEGAL PROFESSION

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By Karla Carter, Esq.

I was sitting in my Wills & Trusts class during my second year of law school when I learned something very important: my family needed an estate plan. I was a college-educated Black woman from a rural maritime community who was pursuing a professional degree in law and, up until that point, I had no idea that “estate planning” applied to my family and the parcel of land my dad owned in the Northern Neck region of Virginia. We came from humble beginnings. My dad made his living on the water as a commercial fisherman and cook. While we lived modestly, (my dad was frugal and a good steward of his modest income), I never felt like we were poor by any stretch of the imagination. Still, I didn’t think we were the kind of people who had an “estate.” 

Over the years, I had seen movies like “Brewster’s Millions” and “Rainman” which dealt with large inheritances, and I always associated wills and “estates” with a lot of money, mansions, and fine jewelry. I never thought that my childhood home and the land upon which it sat was also an estate that needed protection through proper estate planning.

Sadly, my story is not unique among the Black, Indigenous, and other communities of color where estate planning is not a mainstream practice. Many families in these communities hold their land through an unstable form of land ownership known as heirs property where property passes from generation to generation without the benefit of a will. Heirs property is especially prevalent among low-wealth communities of Blacks who own land in the rural south, Whites in the Central Appalachian region of the country, Hispanics in the colonias communities of southwestern United States, and Native American groups. 

While all populations, regardless of race, are impacted by heirs property, Black families have lost a disproportionate amount of land to heirs property issues. According to the USDA, heirs property is the leading cause of Black land loss in America, with millions of acres lost to this unstable form of ownership, which has translated into billions of dollars of lost generational wealth. To understand this present problem requires one to first understand the historical and cultural framework that gave rise to this problem in the Black community. 

DECADES OF SORROW

After Emancipation, freed Black people acquired millions of acres of land, owning roughly 16-19 million acres by 1910. Often denied access to White-owned establishments to obtain legal services and financing, Black people began developing their own economic structure as a means of building wealth within the Black community. However, as Blacks began to establish thriving towns, to register to vote, to start businesses, and to engage in politics, opposition by Whites to a rise in Black prominence led to public lynchings and other atrocities that contributed to the Great Migration where millions of Blacks fled the South because of the violence and brutality they suffered in the South and the promise of opportunities for financial independence in the North. Here was a population of Americans whose status had shifted from one of being property to actually owning property themselves, but because they lacked the external resources and support they needed to protect their property in the Jim Crow South, what could have been a triumphant story quickly became one of sadness, desperation, and loss. Many decades of sorrow form the backdrop of Black land loss in America and between 1910 and the present day, Black land ownership has dwindled to roughly 2.5 million acres. 

LAWYERS & LAND LOSS IN LOW-WEALTH COMMUNTIES

A common theme exists across all low-wealth communities where heirs property is prevalent, regardless of race: the lack of access to trusted, quality legal services. A lack of trust in government and the legal system by people in low-wealth communities has its roots in the past unethical practices of government officials, lawyers and judges who preyed on this vulnerable population to defraud them of their land. The partition process was a common vehicle for abuse and decades of legal chicanery and outright deception by government officials has resulted in a deep mistrust of the government and the legal system by people in low-wealth communities. This scenario played out countless times: Because heirs property owners hold the property as tenants in common, any one owner of the property has standing to file a partition suit in court. Often, a developer would purchase the interest of one of the heirs, which gave the developer standing to bring a partition suit in court. Rather than ordering a division of the property, the courts regularly granted the requests of the developers, thus forcing families with strong connections and emotional attachments to the land to be separated from the family property. Land that had been in families for generations was lost forever. Often the land was sold way below market value, resulting in the heirs receiving little to no proceeds from the forced sale. These unjust outcomes were the rule, not the exception, resulting in billions of dollars of lost family wealth, and not just in the Black community. Native Hawaiians have been impacted by forced partition sales and Hispanics in New Mexico lost more than 1.6 million acres of land in the late 19th and early 20th centuries because of forced partition sales. 

As a profession, our hands are unclean. However, there is a better way forward and our profession has taken meaningful steps to correct these past wrongs.    

PARTITION REFORM IN THE UNITED STATES

In Virginia and a growing number of states, partition reform is on the rise with the expectation that we will see a decline in these types of forced sales of family land. In 2020, Virginia adopted provisions of the Uniform Partition of Heirs Property Act (UPHPA), which was enacted for the purpose of helping families preserve their family land and to protect their land from the vulnerabilities inherent in heirs property. The law requires the court to consider partition in kind as well as the family’s emotional attachment to the property. If a sale does occur, the court is required to appoint an outside appraiser to ensure that the family receives a commercially reasonable share of the proceeds. Virginia’s approach to adopting the UPHPA was to incorporate the UPHPA provisions into its existing partition procedures set forth in Virginia Code §§8.01-81, et seq.   

Lawyers and legal scholars were among the stakeholders instrumental in bringing about partition reform in this country, but the real work begins with lawyers creating opportunities for low-wealth communities to have access to trusted, quality legal services. Providing quality legal services requires not only professional competence, but also cultural competence. 

CULTURAL COMPETENCE IN THE LEGAL PROFESSION

Rule 1.1 of Virginia’s Rules of Professional Conduct requires lawyers to provide “competent representation” which requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”  

As lawyers, we are called upon to treat our clients with respect and courtesy, something that can only be accomplished if we pursue cultural competency as a way of better serving our clients and the larger community. Being culturally competent is just as important as being professionally competent. We can’t serve our clients effectively without being in tune with the culture, experiences, belief systems, and values of our client. In providing services to the low-wealth communities that need and deserve our service, we must pursue cultural competence in our service to this population. For example, to help a Black family stablilize their land ownership, a lawyer benefits from a knowledge and understanding of the history that led to the widespread lack of estate planning in the Black community. Your background may be vastly different than the client you are serving, but to pursue cultural competence to better serve our community carries tremendous value. The need for legal services in low-wealth communities is vast and matters involving land are some of the most expensive to resolve. 

PREPARING LAWYERS TO ANSWER THE CALL

There is likely an attorney reading this article who has a desire to serve in this area, but who lacks the professional training and experience in the areas of real estate, land use, and estate planning needed to serve this population. Fortunately, programming is being developed to launch in 2023 to help willing lawyers who have a desire to increase both their cultural competence and their professional knowledge to equip them to serve this population.  

The sad history of land loss in low-wealth communities in this country is one that has persisted long enough, and a new narrative is being written, one in which lawyers and judges seek justice for all and where low-wealth communities are able to preserve their family legacies through estate planning and other needed legal services. To close the wealth gap in America, attorneys are needed to stand in the gap by providing trusted, quality legal services to the low-wealth communities that need it most. Lawyers dedicated to the pursuit of cultural competence and professionalism in serving low-wealth communities are the key to closing the wealth gap in America and helping families create generational legacies. To those lawyers willing to join me on this mission, I bid you Godspeed.  

Karla D. Carter, Senior Counsel, Dominion Energy

Karla Carter is a frequent writer and speaker on issues involving heirs property and the need for access to legal services in low-wealth communities. For questions about future training opportunities as described in the article, contact Karla Carter by email at: karla.carter001@gmail.com

The Editor’s Corner

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                                                                  By: August Bequai

  “ Requiem for a Servant of the Law: Prof. Anthony C. Morella”

                           “Where the law is subject to some other authority and has none

                                     of its own, the collapse of the state is not….far off…”

-Plato  (“Laws”)

Professor Anthony Morella.
Professor Anthony C. Morella

The law is one of humanity’s oldest and greatest achievements. Without it, chaos and the rule of the jungle would govern. While the Ancient Scythians and other nomadic groups had developed a body of customary laws to address their daily needs, the first known record of a body of written laws is the Code of Ur-Nammu (c. 2,100-2,050 BCE). Written on clay tablets, it addressed the social and economic needs of the citizenry of Ancient Sumeria.

Even if paying lip service for political purposes, it stressed impartiality and fairness in the application of the law. All citizens were equal before it. Sumeria’s rulers had learned from history that unjust  laws lead to political instability. It would become a model for the legal codes of the  Assyrians, Babylonians, and other ancient civilizations that followed. It became a practice to enact written laws.

While these took on a variety of forms; nevertheless, there was an underlying acknowledgement that the law must be viewed by the populace as just in its application, and tolerant of diversity. When the law came to  viewed as unjust, political turmoil followed. The philosopher David Hume said it best: “…the corruption of the best of things produces the worst…”

Which brings us to our story of Prof. Anthony C. Morella; (“Tony,” to his many friends, students, and colleagues). Tony was born in Malden, Massachusetts in 1930. The son of poor immigrants from Southern Italy, Tony went on to become an air force officer, lawyer, General Counsel/Vice President of a national university, advisor to mayors, judges, members of Congress, and a devoted teacher-(or servant, as he would often describe himself)- of the law.

Upon completing his military service, Tony returned to Massachusetts and married his college classmate, who in turn went on to become a member of Congress, Ambassador, academic, and more. They both shared an undying commitment to freedom of speech and thought. Their friends and associates encompassed the political expanse.

Tony’s real passion, save for his family,  was the law. He taught it to aspiring  jurists for more than 50 years; many of these went on to become judges, legislators, and practitioners, and the son of one of these went on to become a U.S. Supreme Court Justice. The U.S. Constitution for Tony was one of the great achievements of the 18th century. Dogmas and legal fads came and went, but the law for Tony was eternal. The cement that bonded diverse groups into a  civilization. He knew extremely well from his family’s history in Europe, the dangers that lurked when the law became a tool of zealots and the corrupt.

When the nation faced the Watergate Crisis, Tony  and his friend and colleague Prof. George Horning, were called on by U.S. District Court John Sirica (of Watergate fame),  to advise and represent him in litigation involving then President Nixon. See Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973). Judge Sirica would later remark that the assistance Tony and Prof. Horning  had rendered had proven to be invaluable.

When their representation was concluded, unlike many others who gloried in the fanfare of Watergate, Tony and Prof. Horning quietly returned to teaching and practicing law. Before his death, Tony confided that the full story of Watergate would have to be told by future historians. For Tony, the Watergate Crisis affirmed his undying loyalty to the law.

Though approached by publishers with offers to tell the inside scoop of Watergate, Tony turned them down and remained loyal until his death to his client’s secrets. The attorney-client privilege and right to counsel for Tony were sacrosanct. Without them, the American legal system could not properly function. “How can a client trust you,” he would often remark “if you plan to divulge his secrets.” When it came to the law, for Tony, the end never justified the means.

Tony always saw himself as but a servant of the law, a mere speck of sand in the long history and evolution of the law. As General Counsel for a major university, Tony bemoaned the commercialization of the law. Law schools had become cash cows for universities, he would often remark. The main objective of many university administrators, he sadly noted, was no longer to train lawyers to serve society, but to enrich their university covers.

For Tony, the right to counsel had given way to politics; with lawyers refusing to represent clients solely for their political views. The law had increasingly become a tool for berating one’s political  opponents. For Tony, these were dangerous trends that could only lead to chaos and violence if left unchecked. Always a  servant of the law, Tony strove to impress on his students the right to counsel; it pre-empted their political views.

Tony never forgot his roots and made it a practice to advocate for the poor and forgotten. Tony had also learned from his military experience that diversity was the fiber that made America great. In the military, he would say, those you serve with are your family; their race, gender, ethnicity, and religion go by the wayside. In war, well bleed the same.

He also never forgot the lessons of history or his own extensive first-hand observations of American politics. For Tony, great national leaders never elevated themselves above the law. The best leaders for him, were those who placed the public interest ahead of their own. Modesty, for Tony, was a goal leaders should aspire to attain. It helped them better understand their role in history. The Ancient Greek dramatist Aeschylus best summarized Tony’s view of politics: “Honor modesty more than your life.” (“The Suppliant Maidens”).

Tony had witnessed the abuses of the McCarthy Era, the growing disparity between America’s rich and poor, and the growing polarization of American politics. For Tony, lawyers and law schools bore some of the blame. He attributed this to the pursuit of riches and the limelight by many lawyers, instead of public service. The young generation of lawyers, however, gave him hope.

Tony fell victim several years ago to an ailment that savaged his body, but not his spirits. When I visited with him, our discussions always turned to the law and its importance to a stable society. For him, the need for lawyers to assert their role as guardians of the law was paramount.

When Tony died peacefully in his home on October 29, 2020, the writings of Spain’s beloved poet Jorge Manrique (c. 1440-79) came to mind. In his most celebrated poem-(“Coplas por la Muerte de su padre”)-he explored the meaning of life. He concluded that life was but a brief journey and what mattered most was how one lived it. For Tony, the law was his life until his dying day. He lived it modestly as its devout servant. Manrique would have approved.

*The views expressed are solely those of the author.

Diversity Conference Leaders Win Big Awards at VSB Annual Meeting

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Daniel Frankel, Providence Napoleon, and Courtney Frazier

Compiled from VSB Press Releases

Two current members of the Diversity Conference’s Board of Governors plus a past chair of the Diversity Conference were honored for their work and dedication.  This trifecta of award winners is the first time that this many Diversity Conference leaders have won as many VSB Annual Meeting Awards. Daniel Frankl was the CLSBA’s Local Bar Leader of the Year while Providence Napoleon was the posthumous recipient of the Diversity Conference’s Clarence Dunnaville Award, and Frazier was the recipient of the Edwin Burnette Young Lawyer of the Year Award from the Young Lawyers Conference.

Frankl served as the 2021-22 president of the Roanoke Bar Association (RBA), a role that was preceded by years of service to the Roanoke Bar and the Roanoke Law Foundation, which serves as the charitable arm of the RBA.

Frankl was nominated by Eugene M. Elliott Jr. of Roanoke who commended Frankl for his leadership during “the heart of COVID-19.” During this time, Frankl contacted the Roanoke City Schools to see how the RBA could assist them and learned that they needed clothes washers and dryers to assist homeless children who had no way to wash their clothes. Frankl and the RBA worked to obtain washers, dryers, and laundry supplies and worked with the community to raise $32,580 for 20 schools.

Napoleon began her bar service as Co-director of the Oliver Hill/Samuel Tucker Pre-Law Institute, a weeklong program that introduces students to the legal profession. She was a young lawyer delegate representing Virginia to the ABA House of Delegates and to the ABA Young Lawyers Division Assembly. She was Chair of the Virginia State Bar Diversity Conference in the 2015-2016 bar year. She served on the Board of Governors for the Young Lawyers Conference from 2014-2018.

Napoleon was recognized as a rising star in the legal profession. She was named a Rising Star by The Legal 500 in 2019 and was named by Legal Bisnow’s Trending 40 as one of the top 40 lawyers under 40 in Washington, DC.

In 2019 and 2021, Frazier received the Virginia State Bar Young Lawyers Conference Significant Service Award. Within the VSB, Frazier has served as a co-director of the Oliver Hill/Samuel Tucker Pre-Law Institute, a joint project between the Bar’s Diversity Conference and Young Lawyers Conference, which encourages diversity in the law by exposing high school students to the legal profession at a week-long event at no cost to the students.  

In 2019, under Frazier’s direction, the Oliver Hill/Samuel Tucker Pre-Law Institute won first place in the Embracing Diversity Challenge hosted by the American Bar Association Young Lawyers Division.  

Frazier has also served as a co-director of the Professional Development Conference since 2020. Each year, the Professional Development Conference committee organizes a low-cost CLE program, usually on topics of particular interest to young lawyers. The program is open to all Virginia lawyers and has been well attended by attorneys of varying ages and practice experience.  

In her community, Frazier participates in the University of Richmond Mentor Network, mentoring undergraduate students interested in legal careers, in addition to the Leadership Council on Legal Diversity Success in Law School Mentoring Program, a national organization that challenges “the legal profession to prepare future generations of diverse talent for the highest positions of leadership.”   

The PhD Project: Building a Stronger, More Diverse Workforce. Together.

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Olivia Schmitt 

The PhD Project addresses a hidden barrier to workforce diversity: the lack of diversity among college professors. According to Pew Research, 48% of Gen Z – the largest generation in American history – is nonwhite. Yet more than 75% of the faculty at the nation’s colleges and universities – from professors to administrators – are white, according to the U.S. Department of Education’s National Center for Education Statistics.

Having a professor “who looks like me” can have a profound impact on students. It can give them a role model, inspire them to strive for more, and ultimately set them on a path for career success. That’s why The PhD Project is building workforce diversity by creating more diversity in front of the classroom. And the nonprofit is doing it by targeting the place where great leaders are created: business schools. 

For The PhD Project’s mission to come to life, it has created a network of more than 1,400 Black/African American, Latinx/Hispanic American and Native American professors. Many of them have left successful careers in the corporate world to earn business PhDs, with the intent to mentor and inspire underrepresented students who aspire to a career in business. For nearly 30 years, The PhD Project has been responsible for quintupling the number of underrepresented professors, administrators and academic leaders at an extensive list of academic programs. It has 62 members at 15 universities across the state of Virginia; 16 of those members are at Virginia Tech. The nonprofit also has more than 250 additional members who are currently pursuing their doctorate.

By creating a more diverse population of business PhDs, the project is transforming business education – and transforming business – for everyone. The PhD Project is a growing and dedicated community of business professors, PhD candidates and corporate leaders who share a commitment to diversity and inclusion. Through mentoring, networking, and unique events – and by connecting businesses to a diverse pool of high-potential candidates – the nonprofit is building a national movement that continues to gain momentum as more diverse business faculty inspire more diverse business students who will one day lead more diverse corporations. 

While it’s a good start, there is more to be done.

Just one business educator from an underrepresented background can impact far beyond the handful of students in the classroom. That professor’s students can go on to become leaders in the corporate world, or business professors themselves, bringing new light to hiring practices, innovative approaches and alternative perspectives to the lives of hundreds, if not thousands of people.  


A person with curly hair Description automatically generated with low confidence

PhD Project member Dr. Nicole Thorne Jenkins, the John A. Griffin Dean of the McIntire School of Commerce at the University of Virginia, has seen this firsthand and says the need for change is urgent. (pictured above)

“As generation Z continues to matriculate on university campuses, they demand environments that reflect the representation that they see in their peer groups. As business schools, we are the gatekeepers to corporate America and as such, we must evolve into communities that have the cultural fluency to prepare our students for a diverse and dynamic marketplace,” Dr. Jenkins says. “This begins with having representative voices across all facets of the learning environment through holistic admissions processes, robust hiring processes and the design and content of academic programming.”

In the 21st century, diversity is critical. It’s not a box to be checked on a business plan. It’s a requirement for an effective, competitive workforce. When the people in front of the classroom look like the people sitting at the desks, when everyone knows that their unique abilities are recognized and valued, when everyone has an opportunity to succeed, campuses are stronger. Companies are stronger. Society is stronger.

For more information about The PhD Project mission, model and how you can get involved, please visit https://phdproject.org/. 

Wellness-Agni for Legal Professionals

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By: Susan Borecki*

“I feel, therefore I exist.”

-Thomas Jefferson

Years ago, I took a sabbatical from my legal practice and enrolled as a student at the Ayurvedic Institute. Ayurveda is the science of life based on the ancient Vedas. Yoga is the most well-known Vedic discipline in the West. Another that is becoming more widely known is Ayurveda. Ayurveda is the “Mother of all Healing.”  Health and healing according to Ayurveda begin with Agni. 

Agni is the Sanskrit word for fire. In my last article I discussed Agni and digestion. Today we will explore the role that Agni plays in the legal profession. 

Agni refers to the digestive fire, the fire of intelligence, and the fire governing all transformative processes. Like fire, Agni is hot, light, sharp, and dry. Agni governs the highly organized process of creating and blending acid, bile, and enzymes to transform food into usable energy. Maintaining a balanced Agni translates into better digestion, elimination, and immune function.

Agni is also the vehicle by which food becomes consciousness. Agni governs the processing and assimilation of information. All this, through the miracle of fire. 

We speak of something to consider, and legal professionals are voracious consumers. We take in myriad bits of a vast variety of information and evaluate them considering all the related circumstances. We craft them into legal principles, arguments, and conclusions. 

Just as a balanced Agni results in the smooth digestion of food, so a balanced Agni gives optimal job performance. There are a few key qualities that make for an effective and efficient legal professional. All of them require effective and efficient Agni.

Ability to Listen

Meeting with clients requires the ability to welcome people into your environment and help them feel comfortable and appreciated. We do this through outwardly communicating that we are listening. Asking the right questions and reflecting to the client what you have heard is a dance, just as a flame will do. Your good Agni communicates warmth and your understanding of the situation. Your good Agni processes the client’s words and nonverbal cues and allows you to reassemble them into a legally meaningful construct. And, because you have intelligently evaluated your client, you are able to restate the issues in a way that the client is able to understand.

If your Agni is balanced, you will be calm and assess the matters discussed with clarity and control. This in turn stimulates the client’s confidence and trust. If your Agni is too strong, you might appear irritated or angry and judgmental. If it is too low, you could appear distracted or uninterested. You might not accurately assess risks and the chance of success. The plan of action you create may prove ineffective.

Compassion and Empathy

Compassion is the ability to feel sympathy for the client who needs help. Empathy allows you to put yourself in the client’s shoes and feel what they feel. Your internal flame naturally seeks out that of the client. If the client’s Agni is low, you sense it, whether consciously or not. If your Agni is strong, it will reach out to bolster the client’s. If the client’s Agni is too high, one’s own Agni remains cool, to calm the blaze. Your compassionate fire quietly assesses the client and decides if and how you can help. As we know, just listening and being present is often enough.

Extend to others the same compassion and empathy you have for your clients. You cannot hope to be successful if you are not able to appreciate the clerks, your opponent, or the judge. Your subtle flame is always vigilant to the signals given by those who play a role in the outcome of your case.

Assertiveness

An effective legal professional has the appropriate skills and the confidence to use them. An assertive lawyer is game for what may come. One’s enthusiasm—powered by a healthy Agni–is steady, within a manageable range. Out-of-control Agni will make one overly aggressive. One can misread a situation or over-worry an insignificant or unintended slight. This in turn will make one react with anger, failing to maintain a steady, measured course. 

Unfettered aggression can, as they say, “burn bridges.”  In the middle of a conference or a hearing, one can misstep if one overly identifies with one’s points. Zealous representation can be enthusiastic but is ineffective when fanatical and overheated. A well-tempered Agni gives the intelligence to act rather than react. Sometimes, with the right attitude, just showing up really is enough. 

Analytic Skills and Perspective

No one disputes that being able to assess a situation and apply the law appropriately is key for legal professionals. Setting out a problem with an argument supported by law in outline form is our bread and butter. What may not be so apparent is how much analysis is the right amount. An overactive Agni could make one dive too deep in the weeds or blind to key factors.

An insufficient Agni may leave one sputtering and at a loss when it is time to drive home the winning argument, whether on paper or orally. The measured, consistent Agni will make all the important points, to the necessary degree, in both the filings and at the hearing.

Creativity and Timing

There is a general cadence of cases in each area of the law. Within the normal range there is some ebb and flow in which you make a case uniquely yours. Weaving a fresh approach around black letter law is the mark of a consummate professional. 

Understanding how and when to shine new light on an old situation is possible for one with the fire of discernment. Inroads are made by insight coupled with the sincere desire to express a new, better way of seeing things. 

Dedication and Commitment

Of course, the ability to keep the flame of attention burning throughout the whole life of a case is essential. But staying motivated and “stoked” can be a challenge. Confronted with obstacles and delays, a sufficient reservoir of patience can be hard to find. In such situations, knowing that for everything there is a beginning and an end, is the currency of a professional. We talk about putting things off on the back burner or letting things simmer, for example. 

As a criminal defense attorney, I have found that dedication means maintaining the same level of attention and appetite for a case from presentment to the notice of appeal. After the codefendant has pled out, when it is “just us” at the defense table, then me delivering my closing argument (completely convinced of an acquittal), and me enjoying every minute of the 2.67 days the jury is out, and years later remembering my cross of the government’s DNA lab technician, the flame of attention still burns strong. 

***********

Many of us start the day with caffeine in the form of a large, lovely mug of coffee or tea. To enkindle your Agni, first drink a glass of filtered water. Serve it at room temperature because chilled and iced drinks tend to extinguish Agni. Drink it thoughtfully, as an acknowledgement of your Agni, which will guide you through your day. 

  • The author is a frequent contributor about wellness from the Asian historical perspective. The article should not be construed as medical advice on the subject.

Editor’s Corner: Freedom of Speech and Diversity

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         By: August Bequai*

        “The most beautiful thing in the world is freedom of speech.”

             -Diogenes (404-323 BC)

Freedom of speech has a long history, which predates the modern democracies by several thousand years. In the West, it can be traced back to Ancient Athens and Republican Rome. Examples of it can also be found in Ancient China, India, Persia, and Egypt. 

Global Evolution                                        

In the West, freedom of speech found support in the writings of Erasmus and Milton. Lord Edward Coke viewed it as an integral part of Parliamentarian freedom, and in 1689 the English Bill of Rights established the right of freedom of speech in Parliament.

 In 1766, the Swedish Parliament enacted one of the first freedom of the press laws in Europe, while the French Republic adopted the Declaration of the Rights of Man and the Citizen in 1789; affirming freedom of speech as the inalienable right of every citizen. In 1791, freedom of speech was adopted in the First Amendment to the U.S. Constitution.

Freedom of speech is currently recognized, though far from always practiced, as an inalienable right under numerous international and regional human rights laws. Among these: Article 19 of the  Universal Declaration of Human Rights; Article 10 of the European Convention on Human Rights;  Article 19 of the International Covenant on Civil and Political Rights; Article 13 of the American Convention on Human Rights; and Article 9 of the African Charter on Human and Peoples Rights. Freedom of speech as a right has come to include not only its content but also its mediums of expression; among these,  the Internet.

U.S. Experience 

In the American colonies, controls on free speech, as in England, frequently focused on religion, morality, and the British monarchy. For example, in 1612, Virginia made it illegal to speak ill of government officials; while  Massachusetts law in 1646 made it illegal to deny the immortality of the soul. 

The  trial of Peter Zenger in 1735, however, was an important turning point in efforts to advance free speech. Charged with seditious libel for criticizing the Governor of New York, his lawyer (Andrew Hamilton) convinced the jury to disregard the charges and acquit his client ( Zenger). The case set an important precedent for the drafters of the U.S. Constitution.

The American Revolution enshrined freedom of speech in the U.S Constitution; while many state constitutions, and numerous federal, state, and local laws would follow. The First Amendment’s constitutional right of free speech, applicable to state and local governments under the  incorporation doctrine, prevents governmental restrictions on speech; but not restrictions imposed by private individuals and businesses, unless these are acting on behalf of the government.

When a speech restriction is challenged in court, it is presumed to be invalid, and the burden falls on the government to convince a court that it is constitutional. There are also federal, state, and local laws that provide additional safeguards-i.e., attempts by employers to limit or  infringe on the political speech of its employees are illegal. The courts have also interpreted the First Amendment to  protect the right to receive information.

The First Amendment, however, is not absolute. The courts have carved out exceptions to it. Among these, the publication of child pornography, false advertising, promoting illegal conduct,  inciting lawless action,  and more. These narrow exceptions aside, U.S. Supreme Court Justice Thurgood Marshall, a staunch First Amendment supporter, summarized it best, “debate on public issues should be uninhibited, robust, and wide-open.” 

Diversity and Free Speech

In October 2005, UNESCO adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expressions. This was done to protect cultural diversity worldwide in the face of the trauma of globalization. Concerns over the same, prompted the United Nations General Assembly in 2012 to declare the World Day for Cultural Diversity for Dialogue and Development. The European Union followed with its own Declaration on Cultural Diversity.

The term “diversity” itself has taken on numerous meanings over the centuries. Some view it as necessary safeguard for “cultural minorities” the world over, against the profound disruptions in their culture and development wrought by the forces of globalization. Others view it as analogous to biodiversity; while still others as a form of cultural protection against the forces of global commercialization. 

Diversity is no stranger to history. One can find written references to it in Ancient Persia,  India, and China. Ptolemaic Egypt had enacted laws that protected its diverse minorities, and the Abbasid Caliphate enshrined diversity in its code of laws. The Mongol Empire was very likely the most diverse in written history.

The Roman Empire, with 13 Emperors of African descent and dozens of others from its Euro-Asian regions, promoted diversity in its legal system and governmental apparatus. Save for its name, the Roman Empire bore little semblance to its predecessor (Republican Rome).  Many of the Sultans of the Ottoman Empire, likewise, promoted diversity and some even came to embody it. The mothers of many of the Sultans came from non-Turkic backgrounds; to name a few: Albanian, Serbian, Bulgarian, and Persian. 

Diversity, however, has also had its failings. The collapse of the Umayyad Caliphate being but one example. Followed by others like the Almohad Caliphate, Mali Empire,  Habsburg Empire, Tsarist Russia, and in our own time, the breakup of the Yugoslav state. When diversity fails, millions often lose their lives; while millions more find themselves displaced from their homelands.

A study of the many diverse nations and empires that have collapsed in the last 4,000 years, reveals that the majority of these all shared one common trait: a disdain for freedom of speech. Autocracy was often the rule of governance. Diverse cultures , races, religions, and languages while often tolerated and even encouraged, fell afoul if they posed a threat to the ruling elite. To paraphrase the old adage:  all people are equal, but some more than others.

Freedom of speech has also met in the last two centuries, with fanatical disdain for it from political dogmatists. Robespierre, Napoleon and Lenin acknowledged the right to free speech, provided it met their dogmatic prism of governance. For diversity to survive and thrive, free speech is a necessity; dogmatic driven movements its anti-matter

In Closing

While lawyers are often vilified and viewed as corrupt tools of the affluent sectors of society; yet, without their assistance and commitment, there would be no freedom of speech. From their ranks have come its champions and guarantors of free speech. The First Amendment of the U.S. Constitution best exemplifies the force that promotes diversity and lawyers are its guardians. Without freedom of speech and lawyers to safeguard it, diversity withers like a flower without water. 

*The opinions expressed are solely those of the Editor and not those of the VSB or the Diversity Conference.

Civility and Lawyers: Requisite for the Functioning of Diversity

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Alexander Hewes, Esq.1

    Dr. Joshua Lederberg, an American molecular biologist, and Nobel Prize winner, known for his work in microbial genetics, artificial intelligence, and the United States space program, put it succinctly when he said:  

    “All of civility depends on being able to contain the rage of individuals.”

    At a time when certain diversity issues, such as critical race theory teaching, as well as transgender and voting law reforms are being debated in the news, with political divisions fueled too often by heated rhetoric, it is useful to be reminded that civility has played an important historical role in guiding our cultural development going back as far as the ancient Greeks, 2500 years ago.  It has served, repeatedly over time, as a successful bulwark against barbarism, totalitarianism, and anarchy in all forms. Today, lawyers have an important role to play in promoting civil dialogue in any functioning diversity model. While civility can serve to nourish the development of cultural diversity, it will fall short as long as lawyers see themselves as Grand Inquisitors who prefer to engage in name-calling and hate mongering.  

    Beginning with the Romans and the root word civitas, meaning the rights and duties of citizenship, civility was presented in classical literature as necessary for the development of democracy in the context of community and assembly. In its earliest use, civility referred to the display of good behavior for the greater common good. The early Greeks thought that civility was both a private virtue and a public necessity, which functioned to hold the state together.2  Aristotle even viewed civility as a form of friendship, which he understood to be a mutual feeling of good will based on the capability of humans to promote the interests of others above their own.

    In the Middle Ages, civility referred to a proper course of conduct which later became a courtly term. It flourished during the three hundred years of the Renaissance with its collective social celebration of human achievement and expanded dramatically during the human-centered culture of the early modern age. Civility came to represent the character of the courtier and gentleman. 

    George Washington wrote out a copy of the 110 Rules of Civility in his schoolbook when he was about 14-years old. They were based on maxims that originated in the late sixteenth century in France and were widely circulated during Washington’s time.

    Viewed thus, civility is a behavioral code of decency or respect that is the hallmark of living as responsible citizens in the larger community. Without exaggeration, civility has proven over time to be the essential glue holding societies together, as it embraces the concepts of altruism, responsibility, dignity, and justice. Historically, the legal profession has been at the forefront of conflict resolutions of all kinds while functioning on principles of civility and professional conduct.

An Evolving Landscape.

    Any historical comparison of civility during various times makes it clear that lawlessness and standards of decorum tend to fluctuate in complex and interdependent ways. Colonial America, for example, was viewed later as a coarse age by the more proper nineteenth-century Americans yet these same nineteenth-century Americans displayed a great deal of tolerance for selective lawlessness, especially mob violence that sometimes included lynching. 

    Because of the Bolshevik Revolution and the rise of Nazi Germany in 1938, Walter Lippman was deeply worried “that the nations of the Atlantic community would not prove equal to the challenge, and that if they failed, we should lose our great traditions of civilities, the liberties Western man had won for himself after centuries of struggle and which were now threatened by the rising tide of barbarity.”3

Challenges to the Legal Profession.

    In 1971, and with specific respect to the legal profession, Chief Justice Warren Burger wrote:

“[a.]11 too often, overzealous advocates seem to think the zeal and effectiveness of a lawyer depends on how thoroughly he can disrupt the proceedings or how loud he can shout or how close he can come to insulting all those he encounters . . . .”4  

    Though each State is different as to degree and severity, there is substantial evidence pointing to an overall rise in incivility within the American bar. It is extremely difficult to pin down the number of incidents of incivility and unprofessional conduct because incivility, without some associated violation of the ethical rules, historically has not been prosecuted by State regulatory authorities. The result has been a lack of good systemic data on incivility’s prevalence. 

    Nonetheless, the scattered data that is available tends to confirm that uncivil lawyer conduct is pervasive. A 2007 survey done by the Illinois Supreme Court Commission on Professionalism, for example, examined specific behaviors of attorneys across the State and reported that, over the prior year, 71 percent had experienced rudeness which was described as sarcasm, condescending comments, swearing, or inappropriate interruptions. An even higher percentage of respondents reported being victimized by a combination of more specific behaviors loosely described as “strategic incivility.”  This involved opposing counsel strategically employing uncivil behaviors to gain the upper hand, typically in litigation, and included, for example, indiscriminate or frivolous filing of pleadings, the use of inflammatory writing in briefs or motions, not agreeing to reasonable requests for accommodation, or deliberately misrepresenting the facts.

    An updated Survey on Professionalism in 2021, by the same Illinois Commission, contained good news and bad news.  

“The percentage of lawyers who said they’ve experienced incivility from another attorney in the past 6 months dropped more than 30% compared to the Commission’s 2014 Survey on Professionalism. However, issues of incivility tied to race, age, and sex are on the rise and impacting diversity in the profession.

Attorneys in civil rights law, family law, criminal law, and personal injury law all reported experiencing incivility significantly more than in other practice settings.”5

    Virginia and the other States may have varying experiences of incivility by categories.  Nonetheless, the Illinois experience is a disturbing reminder that the already underserved clients of diversity and poverty can be the biggest losers in an escalating environment of hate mongering and incivility.

    With technology and the explosion of social media use, every communication is amplified and distributed to an exponentially wider net of viewers. A “perfect wave” for rising incivility is achieved by the proliferating platforms for digital expression when combined with the enhanced speed of dissemination, dutifully counted with “likes.”  Both traditional media and social media carry countless accounts of screaming lawyers, sometimes using expletives, and acting uncivil. 

    There have been countless writings about the widespread and growing dissatisfaction among judges and established lawyers who have bemoaned what they have seen as the gradual degradation of the practice of law. Once a vocation graced by congenial professional relationships, it has too often become stigmatized by abrasive dog-eat-dog confrontations. 

Opportunities for Change.

    There have been programmatic efforts, led by judges, to address and curb spreading incivility in the legal profession. In 1996, the Conference of Chief Justices adopted a resolution calling for the courts of the highest authority in each state to take a leadership role in evaluating the contemporary needs of the legal community with respect to lawyer professionalism. In response, the supreme courts of fourteen states have established commissions on professionalism, including Virginia, to promote principles of professionalism and civility throughout their states. 

    Many more states have, either through their supreme courts or bar associations, formed committees that have studied professionalism issues and formulated principles articulating the aspirational or ideal behavior the lawyers should strive to exhibit. Strategies include developing updated standards of professional conduct, increased CLE training and the establishment of mentoring programs. 

The Virginia Bar Emphasis on Professionalism and Civility. 

    A requirement of civility is woven into the fabric of the American legal profession, beginning with Bar admission. Applicants must demonstrate a capacity to act in a manner that engenders respect for the law and the profession – in other words, civility.

    In early 2007, the Virginia Bar Association established a Commission on Professionalism. The Commission, made up of members from the Virginia judiciary, statewide bar organizations, educational  institutions and distinguished Virginia lawyers,  was tasked with developing and implementing a set of inspirational principles of professionalism for endorsement by the Supreme Court of Virginia. It was intended as a public expression of the importance that Virginia lawyers place on professionalism, integrity, and civility.

     The Preface to the Bar’s Principles of Professionalism, updated June 9, 2020, authored by Chief Justice Leroy Rountree Hassell, Sr., Virginia Supreme Court, reads in part:

“The Supreme Court of Virginia endorses the attached Principles of Professionalism for Virginia Lawyers prepared by the Virginia Bar Association Commission on Professionalism. Having been unanimously endorsed by Virginia’s statewide bar organizations, the Principles articulate standards of civility to which all Virginia lawyers should aspire.”

Leading by Example.

    There is one solution that cannot be emphasized enough. Every member of the Bar needs to lead by example. If faced with uncivil conduct, it should not be matched in kind and more senior lawyers in any size law firm can use it as a mentoring tool for younger lawyers even without establishing a formal mentoring program. Civilized behavior is more than a matter of having good intentions. It must be learned and learning to be civilized requires conscientious effort and practiced judgment with the guidance of more experienced lawyers. Individuals cannot be expected to learn how to be civilized on their own. Civil conduct is learned through examples and by direct participation in the life of a civilized community. 

    Young lawyers need to learn, and the research has established that (1) lawyers acting civil are more effective and achieve better outcomes; (2) those lawyers build better reputations; (3) civility breeds job satisfaction; (4) incivility adds to the cost of dispute resolution and (5) incivility may result in attorney discipline. 

    Lessons can be learned about leading by example in studying the role of two Virginia lawyers in particular who engaged in the struggle for civil rights with grace, perseverance, and civility. One need look no further than Oliver Hill and Spottswood Robinson, who along with a team of Virginia lawyers have epitomized our profession’s highest ideals.

    In her book, We Face the Dawn, Margaret Edds wrote:

The civil rights movement did not begin in the 1960’s. It did not emerge only from marches on Washington or the case files of Thurgood Marshall and the New York offices of the NAACP and its Legal Defense Fund. Important parts of its foundation were laid in Virginia in the 1940’s and 1950s by Oliver Hill and Spottswood Robinson. Their little-known story forms a missing link in the long and still-unfinished chain leading from American slavery to racial equality. In bridging the perilous spaces between grassroots activists, top movement commanders and the white jurists and legislators who often governed their fate, the Virginia duo stand without peer.6

    Through their actions and professionalism, they garnered the respect of jurists and legislators alike, as well as the public and no one could seriously argue that their civility and faith in the law was compromised by their conduct. 

    The liner on Oliver Hill’s casket bore a simple inscription consistent with his philosophy:  “Let the Work I’ve Done Speak for Me.”  

    Indeed, it does, and it should continue to guide future generations of lawyers as a model of effective advocacy that embraces the principles of civility and professionalism. The loudest and most effective argument can be made with a whisper and the power of understatement can make the case far better than shrill rhetoric intended to denigrate the character of those with whom we disagree.

A Time to Recommit to Civility.

     At the 1976 Democratic National Convention—the year of America’s Bicentennial—Rep. Barbara Jordan, the first Southern Black woman ever elected to the U.S. House of Representatives, told the delegates in her keynote address at Madison Square Garden:

“A nation is formed by the willingness of each of us to share in the responsibility for upholding the common good.”

    Not only does our profession require us to be civil, and it is simply the right thing to do, but professionalism among lawyers is required by the larger American society to preserve a great profession and survive as a civil society bound to the Rule of Law. It is time to renew our commitment to civility.  In the words of Dr. Lederberg, individual lawyers must do more “…. to contain the rage of individuals.”  Both the need and the opportunity are before us.

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  1. Mr. Hewes is a former Trial Attorney with the U.S. Department of Justice with prior service in private practice. He is an author and lecturer on various legal issues and is currently in private practice in Winchester, Virginia. Mr. Hewes also serves as a member of the Invictus Editorial Board. 
  2. Jane R. Reardon, Civility as the Core of Professionalism, ABA Journal, September 18, 2014.
  3. Walter Lippmann, The Public Philosophy : On the Decline and Revival of Western Society, 1955.
  4. Chief Justice Burger, The Necessity for Civility, 52 F.R.D. 211, 213 (May 18, 1971) (remarks made to the Opening Session of the American Law Institute).
  5. Illinois Supreme Court Commission on Professionalism, Survey on Professionalism in 2021.
  6. Margaret Edds, We Face the Dawn, Introduction, p. 8.

Getting Creative: Why Diversity, Equity, and Inclusion Initiatives are Mental Health & Wellness Initiatives

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By: Sarah Knarzer, Esq.1

While well-intentioned, many diversity, equity, and inclusion initiatives (DE&I initiatives) tend to struggle to gain momentum and succeed in law firms and other legal organizations, particularly when those initiatives are focused solely on hiring practices. It is no surprise that diversity, equity, and inclusion does not just miraculously occur in the workforce because some leaders have agreed that it is the right thing to do. In fact, employers who have prioritized practices such as employing attorneys with diverse experiences, making success attainable for all employees, and creating supportive communities within their work force, have realized that DE&I initiatives are the formula for a stronger, healthier workplace. It is evident that for values such as diversity, equity, and inclusion to truly become part of firm or legal organization, they must be integrated into everything that firm or legal organization does, including mental health and wellness programs, and vice versa. 

              Diversity and the Workplace

“Despite the increased emphasis on diversity and inclusion within the legal field over the past decade or so, the legal profession remains one of the least diverse of any profession.”2 This is despite the fact that “studies have shown, time and time again, that diversity is good for business.”3 One primary barrier is leadership—without diverse leadership, diversity initiatives will almost always fail. For example, as of 2017, Asian Americans were the largest minority group at major law firms.4 However, “[a]mong Asian Americans, although women outnumber men among law firm associates, men outnumber women by almost twofold at the partner level.”5 

Diversity for diversity’s sake—a numbers game where you achieve a quota of “diverse” employees and call it a day—is doomed from the start. Such initiatives—while necessary—focus primarily on hiring/recruitment practices, are reactive in nature, and don’t address the root of why minority attorneys struggle to find the same success and satisfaction in the work force as their majority counterparts: minority attorneys at all levels of their legal organization don’t often have the resources to start on the same footing as their majority colleagues in an inequitable workplace or to integrate with or feel embraced by their peers in an non-inclusive workplace.6

 For illustration, being invited to the party is the first step, but if you are not invited to dance, or if you do not have the ability to dance in the first place, you will not have as much fun as the others at the party, despite everyone’s good intentions. Accordingly, injecting robust mental health and wellness initiatives into all aspects of your workplace’s diversity, equity, and inclusion strategy addresses many of the barriers to employee retention, promotion, and public perception as a diverse workspace—but more importantly, it strengthens and empowers employees to be successful on an individual level and as a collective workforce. 

                Need for a Flexible Approach

Mental health and wellness initiatives that take a “one-size-fits-all” approach and ignore the diverse experiences and backgrounds of their employees will not succeed. Minority employees’ mental health can be directly impacted by microaggressions, bias, and a lack of inclusivity that they may experience in their workday. This is particularly true in the legal occupation where many attorneys struggle with mental health—ALM’s 2020 Mental Health and Substance Abuse Survey showed that out of 3,200 responses, 64% of attorneys experience anxiety, 31.2% experience depression, 10.1% feel they struggle with alcoholism, 2.8% feel they may have a drug problem, and, most concerning, 17.9% of respondents have contemplated suicide during their professional legal career.7 

The legal community has made great strides with destigmatizing some of these mental health concerns and providing resources for attorneys who are struggling, but to fully address the concerns of all attorneys, we must identify the sources of mental health problems and the barriers to receiving help before we can remove them. For example, diverse cultural attitudes and stereotypes often impact the way minorities seek help with their mental health or prevent them from seeking help altogether.8

                      A Supportive Environment   

Feeling included, supported, and capable of success in an organization is critical to strong mental health and well being in the workplace.9 Given the amount of time, energy, and attention attorneys spend in their work, it is impossible to ignore the impact that their work environment may have on their mental health. Injecting DE&I initiatives into all aspects of your workplace’s mental health and wellness strategy addresses many of the negative experiences that are unique to minority attorneys and fosters a work environment that is a source of positivity and personal fulfillment for all employees; and mentally well and happy people are better employees, supervisors, leaders, and attorneys. There is no single approach to solve all mental health, well-being, diversity, equity, and inclusion concerns in your workspace. 

However, mental health and well-being and DE&I strategies must be intersectional if they are to be achieved.10  By incorporating concepts of diversity, equity, and inclusion into your mental health and wellness programs, and vice versa, you will start to provide employees and attorneys from all experiences and backgrounds with the resources they need to succeed both personally and professionally at your legal organization. 

    To illustrate, attorneys who manage various disabilities may have experiences that are more challenging than their colleagues’ without disabilities through no fault of any person involved. In addition to the difficulties caused by their disability, these attorneys frequently struggle with both subtle and overt instances of bias and discrimination in the workplace.11 These instances often arise from a lack of understanding of a person’s abilities. 

For example, an attorney who uses a wheelchair to be mobile may not be able to accompany colleagues on a firm-wide hike. A standard health insurance plan may not account for the employee who requires the use of a hearing-aid to participate in a conversation. An employee who is neurodivergent (has autism, dyslexia, etc.) may not be able to integrate socially or professionally without accommodations or support from all their peers. And, of course, while organizations frequently state that they do not permit bullying or harassment in the workplace, it undoubtedly still occurs—and minority communities may endure the most of such unacceptable conduct. 

These are just some of the examples where an individualistic approach would benefit human resources, administrative, and employee development staff in supporting their attorneys within a legal organization. By increasing anti-bias training and education and making small modifications to certain practices—such as health insurance coverage for disabilities, ensuring food options for specialized diets (ex. vegan, kosher), hosting a diverse variety of social functions, permitting flexible leave and floating holidays for those of different religions and ethnic traditions—your workspace can become more equitable and your employees will feel more included, supported, and empowered to succeed.12 

Of course, recruitment, hiring, and retention policies are integral to any diversity, equity, and inclusion strategy. Pooling from diverse backgrounds, valuing diverse experiences, and promoting diverse employees to positions higher up in your legal organization are all critical to obtaining a strong, healthy workplace. However, even in this area of your organization’s diversity strategy, mental health and well being concerns can and should be considered. 

For example, it is important not to tokenize the diverse employees that are currently a part of your workforce in advertising materials and/or recruitment.13 Tokenization occurs when a minority person is hired, promoted, and/or advertised “only to prevent criticism and give the appearance that people are being treated fairly” and without any real intention or practice to treat them in the same capacity as a majority counterpart.14 Doing so is not only misleading to potential employees by setting them up for expectations for their employment that can only fail and disappoint them, but it is also exhausting for one or two choice people to be the beacon for diversity in their organization (often without a paycheck to reflect that additional work,) anxiety-inducing to feel the need to be the perfect example and a mentor to any and all other diverse employees, and discouraging to feel that they were only hired to be a statistic or photo opportunity and not for their skills, abilities, and strengths as an attorney. This does not mean they cannot or should not be a part of those hiring and recruitment practices but doing so should be on their terms and they should feel free to speak honestly about their experiences, even the negative ones. 

Another example is for hiring managers to truly value diversity as a policy, not as a statistic. In a recent study, 76% of new job seekers and employees have reported that a diverse work environment is a crucial factor in considering offers of employment.15 (Speaking for myself, I certainly considered diversity initiatives—and the opportunity to become involved with diversity initiatives—in accepting my current position as an associate at my law firm.) This statistic indicates that now, more than ever, it is important to have a concrete DE&I strategy that can be used as an incentive for diverse and diversity-minded candidates to work at your organization. However, it is also important for interviewers and hiring managers to be honest with potential employees who inquire about DE&I initiatives in your workplace. 

If an employee accepted a job offer partially on the impression that they were joining an organization that had strong diversity, equity, and inclusion policies, only to learn that such policies were not, in fact, valued or practiced by the organization as a whole, they may grow to resent their employer, thus impacting their mental health and well-being as an employee. If your organization is not where you think it should be in terms of diversity and inclusion, but you and others are working to improve that and are looking to hire those who feel the same, then say so—candidates may be excited about the opportunity to leave an impression on their firm and, if given the opportunity and an environment to do so, they may feel fulfilled and empowered by their organization to be a successful employee. 

                    In Closing   

The methods in which your legal organization can strengthen both mental health and wellness initiatives and DE&I initiatives by intersecting the goals of each may be critical to supporting attorneys at your organization. How your firm or organization accomplishes this will require creativity and commitment from all levels—and your strategy will have to be unique to your firm or organization’s workforce, resources, and environment. However, the first step is to view each initiative not as mutually exclusive of the other, but instead as compatible and harmonious goals that, if achieved, will cultivate a workspace where employees can flourish both professionally and personally.

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  1. Sarah K. Knarzer is an Associate Attorney with McCandlish Holton’s Civil Litigation Group in Richmond, Virginia. She is passionate about diversity and inclusion in the legal community and is happy to discuss this article and other initiatives with anyone else who is interested. For inquiries, please e-mail sknarzer@lawmh.com.
  2. Allison E. Laffey & Allison Ng, Diversity and Inclusion in the Law: Challenges and Initiatives, American Bar Association (May 8, 2018), https://www.americanbar.org/groups/litigation/committees/jiop/articles/2018/diversity-and-inclusion-in-the-law-challenges-and-initiatives/.
  3. Id.
  4. Chung et al., The Portrait Project: A Portrait of Asian Americans in the Law (2014).
  5. Laffey, supra note 2 (citing Chung, supra note 3, at 18).
  6. Dr. Heather Bolton, DEI That Ignores Mental Health Is Doomed, HR Daily Advisor (Nov. 6, 2020), https://hrdailyadvisor.blr.com/2020/11/06/dei-that-ignores-mental-health-is-doomed/.
  7. lex Andonovska, Lawyers Reveal True Causes of Mental Health Struggles Beyond COVID-19, JDJournal (May 7, 2020), https://www.jdjournal.com/2020/05/07/lawyers-reveal-true-causes-of-mental-health-struggles-beyond-covid-19/ (citing Mental Health and Substance Abuse Survey, ALM Intelligence (2020)).
  8. For more examples of the way diverse backgrounds affect mental health, see Jayne Reardon & Bree Buchanan, Lawyer Well-Being: An Uncharted Path to Increasing Diversity and Inclusion, American Bar Association (Feb. 19, 2018), https://www.americanbar.org/groups/litigation/committees/diversity-inclusion/articles/2018/winter2018-lawyer-well-being-alcoholism-self-help/.
  9. Patricia Silva, Mental Health Efforts Will Support Diversity In Legal Industry, Law360 (June 9, 2020, 10:09 p.m.), https://www.law360.com/articles/1278451/mental-health-efforts-will-support-diversity-in-legal-industry.
  10. Garen Staglin, The Essential Role of mental Health For A Diverse, Inclusive Workplace, Forbes (July 14, 2020, 9:00 a.m.), https://www.forbes.com/sites/onemind/2020/07/14/the-essential-role-of-mental-health-for-a-diverse-inclusive-workplace/?sh=72e0da4bac4d.
  11. For examples and statistics, please see Blanck et al., Diversity and Inclusion in the American Legal Profession: First Phase Findings from a National Study of Lawyers with Disabilities and Lawyers Who Identify as LGBTA+, 23 Univ. D.C. L. Rev 23 (2020).
  12. For other examples, see Making Diversity, Equity, and Inclusion a Part of Your Corporate Wellness Program, WellRight (July 8, 2020), https://www.wellright.com/blog/making-diversity-equity-and-inclusion-a-part-of-your-corporate-wellness-program.
  13. Five Ways to Avoid Tokenism in Diversity and Inclusion Work, The Network (Aug.19, 2020), https://www.the-network.com/five-ways-to-avoid-tokenism-in-diversity-inclusion-work/
  14. Avoiding Tokenism when Promoting Cultural Diversity in the Workplace, Thomas (Nov. 26, 2020), https://www.the-network.com/five-ways-to-avoid-tokenism-in-diversity-inclusion-work/.
  15. What Job Seekers Really Think About Your Diversity and Inclusion Stats, Glassdoor (July 12, 2021), https://www.glassdoor.com/employers/blog/diversity/.

Make Justice Accessible to Autistic Individuals

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By: Walewska M. Watkins*

    Introduction1    

Disabled individuals2—especially those who are intellectually and developmentally disabled— are more likely to become involved in the criminal justice system as survivors or offenders than those who are not disabled.3 They are exploited and injured by strangers and caregivers who take advantage of their physical, intellectual, developmental, or communication limitations.4 Too often, they are re-victimized by our collective failure to sufficiently empower them in rejecting abusive criminal behavior and obtaining legal protections.5 

Whether intentionally or negligently, we have failed to create administrative and judicial systems willing to believe and sufficiently accommodate them.6 We have yet to eliminate personal and systemic biases that conceive of the harms inflicted upon them as inevitable, necessary, or benign or simply as civil or administrative infringements that do not require prosecution.

Disabled individuals also disproportionately bear certain burdens of inequality, including unemployment, poverty, homelessness, and violence that can drive them—as they drive others— to engage in criminal conduct. Some—especially those with intellectual and developmental disabilities—are manipulated into criminal behavior by their social isolation or misinterpretation of the nature of illicit activities.7 Regardless of their status as accusers or accused, disabled individuals are entitled as a matter of law to fully access and participate in our judicial systems. 

As attorneys, we are charged with the aspirational goals of our Rules of Professional Conduct to consider the existing deficiencies in the administration of the justice and to improve our laws and the quality of services we render to the public.8 As officers of the court, we should aspire to eliminate existing and emerging physical and communication barriers that prevent disabled individuals from participating in investigative and adjudicative processes free of condescension and pernicious discrimination. We should also seek to create and enforce remedies that fairly redress the harms disabled individuals experience and address the harms they may perpetrate. 

What is Autism?

An Autism Spectrum diagnosis generally identifies individuals with sensory processing, executive functioning, communication, or social interaction approaches that depart from the stereotyped expectations we deem the norm. Depending upon their profile or situational needs, those who have received the benefit of an Autism Spectrum diagnosis (i.e., Autistic individuals) may be entitled to the protections afforded under federal and state disability rights statutes. 

Some Autistics may, for instance, process language (including its intonations, interruptions, and accompanying gestures) or other sensory stimuli (e.g., a banging gavel or a crowd suddenly standing up) differently from that preferred by a government agent or institution (e.g., more slowly, more intensely, more fearfully, etc.) Others may communicate through alternative means or assistive technology (e.g., American Sign Language, speech generating devices, picture boards, or electronic communication boards) or may have developed an individualized approach to vocabulary, grammar construction, volume, cadence, facial expressions, or mannerisms. Yet others may require emotional or social supports either sporadically or consistently. 

According to the National Institute of Mental Health, about 1.9% of the general population has been diagnosed as Autistic by either a medical or educational expert.9 It is likely, however, that this number underestimates Autism’s prevalence since women and racial and ethnic minorities are more likely to go undiagnosed.10 

The Centers for Disease Control and Prevention estimate that close to 24% of adult Virginians are disabled.11 Though historical changes in diagnostic criteria and previous systemic failures in data collection make it difficult to establish the size of Virginia’s Autistic cohort, estimates show that about 10% of Virginian children who receive supportive education services is Autistic.12 This suggests that Autistics represent a similar proportion of the population here as they do nationwide.

Is Autism a Disability That Our Courts Must Accommodate? (Yes. It is.)

The Americans with Disabilities Act (ADA) along with its regulations and the Virginians with Disabilities Act (VDA) define “disability” in terms of a substantial limitation of one or more major life activities, including neurological functions such as perceiving, concentrating, analyzing, and communicating.13 While each Act has its own nuance, they both seek to ensure that disabled individuals are guaranteed equal opportunities and full participation in social and civic life.14 

Title II of the ADA, for example, requires public entities—such as our Commonwealth courts and Commonwealth Attorneys— to take appropriate steps to ensure the protection of the statutory and constitutional rights of “qualified individual[s] with a disability.”15 These steps (sometimes referred to as “reasonable accommodations”) may include providing access to technological aides, certain professional services, and the assistance of others to facilitate the disabled individual’s communication and participation in government services, programs, or activities.16 The VDA similarly prohibits excluding “person[s] with disability” from participating in or benefiting from programs or activities undertaken by the state, on behalf of the state, or otherwise receiving state financial assistance on the basis of their disability.17 

Whether they do so consistently or only under the stress of participating in judicial processes, Autistic individuals can find these processes inaccessible and thus evidence a substantial limitation to a major life activity. Their unconventional needs or behaviors may, moreover, prevent narrowly focused prosecutors, legal representatives, jurors, or judicial officers from fairly evaluating Autistics’ competence, memory, motivations, and trustworthiness and from honoring their rights to due process of the law and other constitutional guarantees. Autistic individuals would therefore qualify as “person[s] with disability” and be accordingly entitled to receive reasonable accommodations throughout their participation in the judicial process and related proceedings. 

How Can Our Court Systems Reasonably Accommodate Autistic Individuals?

While disabled individuals may be capable of filing a request for a reasonable accommodation (i.e., a modification or adjustment to processes) in advance of a particular interaction,18 they may not know in advance that they will need one. The absence of such requests does not relieve an entity of its obligation to take “appropriate steps”19 to prevent disability-based discrimination.

A logical first appropriate step in providing yet unrequested reasonable accommodations is to recognize that an individual may be unable to perform a specific task in the standardized manner. An attorney, judicial officer, or support staff may, for example, perceive that a person is struggling to complete intake paperwork.20 Without demanding information about the source or nature of the person’s disability, they may volunteer to read the text aloud or paraphrase for simplicity. This may quickly address the challenges faced by dyslexic individuals, by those unfamiliar with technical language, or by Autistic individuals who struggle with open ended questions. 

Depending upon the type of form in question, attorneys may alternatively offer to complete the form for the individual—which would discretely address language production, educational, or motor coordination disadvantages experienced by the disabled individual. The reasonable accommodation that would best fit a situation and an individual, however, will depend upon the situation, the substance of the form, the individual, and the disability. 

Recognizing and honoring a disability is more complicated and must go farther than preparing initial paperwork to access justice. It is the courts’ duty to ensure that Autistic or otherwise disabled victims, witnesses, and even accused are afforded means and strategies for communication that can effectively help them establish their positions and communicate their experiences of trauma.21 

Non-Autistic participants in judicial process should, for example, refrain from relying on the ambiguity of body language and demeanor since Autistics may either produce or perceive those differently. Autistics’ demeanor may, for example, be significantly influenced by trauma and by their unconscious development of “a psychological safety mechanism made up of complex layers of physical, emotional and social actions…”22 

Autistics may also easily misunderstand open ended questions and become unduly anxious due to their limited ability to capture context clues and intended meanings.23 Indeed, following some of our sister states’ precedent, judicial officers should consider exercising their discretion—as contemplated by Va. S.Ct. Rule 2:611— to allow leading questions during a direct examination as a reasonable accommodation to develop testimony at trial.24 

The rules on relevance may have to yield to accommodate an Autistic witness and allow the presentation of contextual information about Autism and how the person’s Autistic profile or learned coping strategies may express itself in the individual’s tone, posture, expressions, behavior, or choices. Such modification to our traditional notions of relevance can similarly provide context to behavior presented as evidence of Autistic defendants’ motive, intent, fault, guilt, demeanor, and remorse to ensure that harms are repaired without imposing disproportional accountability.25 

Individualization of accommodations is fundamental as Autistic individuals are not monolithic. For some, these or similar accommodations may represent the best means to “facilitate the ascertainment of truth,” “avoid needless consumption of time,” and protect an Autistic or otherwise disabled witness from “harassment or undue embarrassment.”26 For us, they may represent our best acknowledgement of the special vulnerabilities of Autistic victims that make them easy targets for physical abuse and psychological and intellectual manipulation. 

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*About the author

Walewska M. Watkins is a legal services attorney, living and working in Northern Virginia. She received her Juris Doctor from Georgetown University Law Center and her LLM in Environmental Law from Tulane University Law School. She is licensed to practice law in New York, California, Puerto Rico, the District of Columbia, and our Commonwealth of Virginia. Her practice has included civil rights, environmental regulation, gender discrimination, and First Amendment rights as well as copyrights and commercial litigation. Ms. Watkins is a member of the Governor’s Virginia Latino Advisory Board and the Fairfax County’s Community Action Advisory Board, a Virginia Board for People with Disabilities’ TAA, and a member of the Little Lobbyists, a not-for-profit organization that advocates for the rights of children with complex medical needs and disabilities.

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  1. There is a growing body of activism and scholarship focused on law enforcement interactions with Autistic individuals and on how training and experience working and socializing with Autistics can improve law enforcement outcomes. Little work has been done, however, to enrich prosecutorial decisions on Autism and on how Autistics may experience crime and criminal prosecutions differently from non-Autistics. During its 2021 Spring Training Institute last April, the Commonwealth’s Attorneys’ Services Council assumed a leading role introducing our state attorneys to an overview of Autism, how aspects of prosecutorial and judicial processes can affect Autistics’ access to justice, and how some reasonable accommodations can mitigate certain challenges. The expert training panel—“Autism and Criminal Justice”— included attorney Ariel Simms from The Arc of the US’ National Center on Criminal Justice & Disability, attorney Kelly Israel from the Autistic Self Advocacy Network, the Honorable Judge Susan J. Stoney from the Fairfax County General District Court, and the author. This article reflects some of its lessons.
  2. This National Center on Disability and Journalism’s Disability Language Style Guide recognize that some disability activists prefer the use of person first language—i.e., “person with a disability”—, while others prefer identity first language—i.e., “disabled person.” Nat’l Ctr on Disability and Journalism’s Disability Language Style Guide, https://ncdj.org/style-guide/#disabledpeople (last accessed April 30, 2021). The Autistic community currently prefers identity first language and thus this writing will follow their lead.
  3. Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects, p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021). See also Jeffrey A. Cohen, Thomas A. Dickerson, and Joanne Matthews Forbes, A Legal Review of Autism, A Syndrome Rapidly Gaining Wide Attention Within Our Society, 77 Albany Law Review 389, 417 (2014)(citing Karen Hughes et al., Prevalence and Risk of Violence Against Adults with Disabilities: A Systematic Review and Meta-Analysis of Observational Studies, 379 Lancet 1621, 1626, 1627 (2012))(Autistic individuals are more likely to be victims than perpetrators of crime.) (Content Warning: This article includes ableist language and perspectives.)
  4. See, e.g., Christina Rainville (Jan. 09, 2018), Prosecuting Cases for Children on the Autism Spectrum [American Bar Association’s Center on Children and the Law Blog Post], available at https://www.americanbar.org/groups/child_law/resources/child_law_practiceonline/child_law_practice/vol_32/april-2013/prosecuting-cases-for-children-on-the-autism-spectrum/ (last accessed April 30, 2021); Karen Hughes et al., Prevalence and risk of violence against adults with disabilities: a systematic review and meta-analysis of observational studies, p. 8 (2012), available at https://www.who.int/disabilities/publications/violence_children_lancet.pdf (last accessed April 30, 2021); Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects (August 2009), p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021).
  5. Id.
  6. Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects (August 2009), p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021).
  7. Id.
  8. Va. State Bar: Professional Guidelines, Preamble: A Lawyer’s Responsibilities, available at http://www.vsb.org/pro-guidelines/index.php/rules/preamble/ (last accessed April 30, 2021). See also Supreme Court of Virginia, Virginia’s Courts in the 21st Century: To Benefit All, To Exclude None, available at http://www.courts.state.va.us/courtadmin/aoc/judpln/reports/2009_strat_plan.pdf (last accessed May 31, 2021)((Vision 2.5 reads: “Eliminate from the operation of the Judicial System harmful biases such as those based on race, gender, age, disability or socioeconomic status”; Vision 5.9 reads: “Ensure that participants in the judicial process are not discriminated against because of race, language, gender, age, disability, or socioeconomic status.”)
  9. Nat’l Inst. of Mental Health, Prevalence of ASD, available at https://www.nimh.nih.gov/health/statistics/autism-spectrum-disorder-asd (last accessed on May 11, 2021).
  10. See, e.g., Jen Malia, “My Daughter and I Were Diagnosed with Autism on the Same Day,” The New York Times, (October 15, 2019), available at https://www.nytimes.com/2020/04/15/parenting/autism-mom.html (last accessed May 11, 2021); Allison B. Ratto et al., What About the Girls? Sex-Based Differences in Autistic Traits and Adaptive Skills, 48 Journal of Autism Dev. Dis. 1698–1711 (2018); David S. Madell et al., Racial/Ethnic Disparities in the Identification of Children With Autism Spectrum Disorders, 99 Ame. Journal Public Health 493 (2009), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2661453/ (last accessed June 14, 2021).
  11. U.S. Centers for Disease Control and Prevention, Disability & Health U.S. State Profile Data for Virginia (Adults 18+ years of age), available at https://www.cdc.gov/ncbddd/disabilityandhealth/impacts/virginia.html (last accessed on May 12, 2021).
  12. Easter Seals, 2016 State Autism Profiles VIRGINIA, https://www.easterseals.com/explore-resources/living-with-autism/2016-autism-virginia.pdf (Content Warning: This document includes ableist language and perspectives.)
  13. As defined by the Americans with Disabilities Act (ADA), the term “disability” means an actual or perceived “physical or mental impairment that substantially limits one or more major life activities” or a record of such an impairment. 42 U.S.C. § 12102(1); 42 U.S.C. § 12102(2)(C). The ADA protects individuals who are perceived as disabled, but who are not actually so, only if their perceived impairment is not one that would be regarded as transitory, defined as lasting six months or less. 42 U.S.C. § 12102(3)(B). See 42 U.S.C. § 12102(4)(including rules of broad construction and interpretation). See also 28 C.F.R. § 35.108. For purpose of the ADA, “major life activities” include, but are not limited to, “but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). They also include immune, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 42 U.S.C. § 12102(2)(B). See also Virginians with Disabilities Act, Va. Code § 51.5-40.1.
  14. See 42 U.S.C. § 12101(b); Va. Code § 51.5-1.
  15. 42 U.S.C. § 12132. See also 42 U.S.C. § 12131(1)(defining the public entities subject to ADA’s Title II); 42 U.S.C. § 12131(2)(defining “qualified individual with a disability” as a disabled individual who, with or without reasonable accommodations, “meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”)
  16. 28 C.F.R. §35.160.
  17. Va. Code § 51.5-40.
  18. The Supreme Court of Virginia highly recommends the use of the following form to make a reasonable accommodation request: http://www.courts.state.va.us/courts/ada/accommodation_request_form.pdf (last accessed May 31, 2021). No government entity may, however, predicate the processing or grant of a reasonable accommodation upon the filing of a paper application or preferred form.
  19. 28 C.F.R. §35.160(a)(1) (“A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.”)
  20. The basis for this exemplary scenario must be credited to attorney Ariel Simms from The Arc of US.
  21. 28 C.F.R. § 35.160(b)(1) (“A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.”)
  22. Kieran Rose, Autistic Masking and Autistic Burnout: What is Masking?, available at https://theautisticadvocate.com/autistic-masking/ (last accessed on May 12, 2021).
  23. Similarly, slang, popular expressions, and overly symbolic language can also confuse or easily frustrate certain Autistic and otherwise disabled individuals.
  24. See, e.g., State v. Rivera, 987 A.2d 887, (R.I. 2010) (affirming decision to permit adult with developmental disabilities to be questioned by leading questions in a sexual assault case); People v. Augustin, 112 Cal. App. 4th 445, 449, 5 Cal. Rptr. 3d 171, 175 (2003)(affirming trial court’s decision to accommodate assault victim with cerebral palsy and speech disabilities by permitting leading questions on direct examination); State v. Stewart, 2003 WL 21251642, *11 (Tenn. Crim. App.)(affirming decision to permit direct examination of adult victim through leading questions, noting victim’s “mental condition” and “severe speech impediment” such that she “could not express herself as other witnesses can”); Trammell v. State, 298 So. 2d 66 (1974) (affirming decision to allow witness who had suffered a stroke to be questioned by leading questions and to answer non-verbally).
  25. Jeffrey A. Cohen, Thomas A. Dickerson, and Joanne Matthews Forbes, A Legal Review of Autism, A Syndrome Rapidly Gaining Wide Attention Within Our Society, 77 Albany Law Review 389, 413 (2014). (Content Warning: This article includes ableist language and perspectives.) The Hon. Jeffrey A. Cohen and the Hon. Thomas A. Dickerson are Associate Justices of the Appellate Division of the New York State Supreme Court, Second Judicial Department.
  26. See Va. S.Ct. Rule 2:611. See also Connecticut Code of Evidence § 6-8(b)(3), Comment (“Under exception (3), the court may allow the calling party to put leading questions to… a witness who has trouble communicating.”); California Rule of Evidence 767, Comment (“The exception stated at the beginning of the section continues the present law that permits leading questions on direct examination where …such questions are necessary to obtain relevant evidence. This would permit leading questions on direct examination for …examining handicapped (sic) witnesses[.]”)(internal citations omitted).

Time to Talk Town Hall Wins ABA Award

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Compiled by Chris Fortier from Virginia State Bar Reports

The Time to Talk Town Hall Series from 2020 won a major national award.

Through a submission for the ABA Young Lawyers Division Awards of Achievement through our partners, the Young Lawyers Conference (YLC), the Series won the 2021 Award of Achievement for Diversity for the Time to Talk Townhall Web Series, which was a series of three town hall style virtual forums for discussing issues of equality, race and ethnicity in the wake of the nationwide protests surrounding the deaths of George Floyd and other persons of color. These issues were discussed through the lens of concrete legal frameworks and concepts.

The town halls were a joint project and covered policing, free speech, statue removal, protests, and addressing implicit bias. The web series was distributed after recording through the two conferences’ newsletters, Docket Call and Invictus.

Dave Masterman, chair of the Diversity Conference noted, “Programs like this one have added importance in difficult times, and goodness knows that the last few years have been difficult. This Award is both a wonderful recognition of the YLC’s and the Diversity Conference’s hard work on these issues and an inspiration for all of us to keep this dialogue open.”

The ABA Young Lawyers Division Awards of Achievement recognizes projects and programs put on by young lawyer groups from around the country. One major criterion is collaboration with other bar organizations to put on quality programming. The Diversity Conference and the Young Lawyers Conference have a strong partnership supporting one another to put on exceptional programs such as the award winning Hill Tucker Institute and the Time to Talk Town Halls.

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