Invictus

Second Annual Forum on Diversity and Inclusion in the Legal Profession

September 20, 2019 – William and Mary Law School

Special thanks to William and Mary Law School for hosting our Forum!  

MLK Quote on the wall from 1994, the 40th anniversary of Brown v. Board of Education. (Dee Norman – VSB) (https://www.facebook.com/virginiastatebar/photos/a.2474654669296422/2474656605962895/?type=3&theater)

The Diversity Conference banner greets Forum attendees (Chris Fortier).

Forum Subcommittee chair Luis Perez of Falls Church greets the program’s faculty.

Diversity Conference Staff Liaison Sylvia Daniel greets Forum attendees.

The opening panel, Implicit Bias, at the Forum (Dee Norman – VSB). https://www.facebook.com/virginiastatebar/photos/a.2474654669296422/2474656022629620/?type=3&theater 

By: Walewska M. Watkins, Esq.

An Autism Spectrum diagnosis identifies individuals with distinct, but not identical, approaches or challenges in the areas of social communication and interaction. These distinctions may also manifest themselves in the ways in which they approach sensory stimuli and how they organize their lives to cope with stimuli. Individuals who have received an Autism Spectrum diagnosis are sometimes referred to in “person first language” as “persons with Autism.”

Hereinafter, this writing includes what Autistic advocates designate as “identity first language” and refers to them as “Autistics” or “Autistic individuals.” This linguistic choice brings into focus a part of their identity relevant to the discussion and inseparable from how they experience the world. Not only is it espoused by Autistic self-advocates internationally, it has been decisively supported by experts in child psychology and psychiatry.

                        Public Perception of Autism

The public’s perception about Autistic individuals is rife with ableist stereotypes, condescension, and contempt. Depending upon the communicator’s bias, these individuals are portrayed as, for example, too naïve to understand the world around them, too aggressive to be reasonable, too rigid to follow or break the rules, too indifferent to empathize, and too inarticulate to self-advocate.

Even those purportedly well-meaning often contribute to these mischaracterizations by equating potential co-morbid conditions—such as brain injuries, intellectual disabilities, obsessive compulsive disorders, anxiety or depression, and epilepsy—with Autistic traits. Those less well-intended equate Autistic traits with criminal behavior.

Insidious stereotypes of incompetence, intransigence, and aggression disadvantage Autistics as students, parents, constituents, employees, and as participants within judicial and administrative systems. Stereotypes, after all, are still too frequently the only context that emergency responders, law enforcement personnel, civil and criminal counsel, and judicial and administrative adjudicators have when interacting with Autistic children and adults.

Thanks in no small measure to Autistic advocates, state and local governments have begun to recognize that when their agents fail to engage in meaningful personal interactions with Autistic individuals and to develop the skills necessary to adapt existing protocols, the civil and criminal consequences can be unnecessarily devastating and lifelong.

To an emergency responder without personal life experience with Autistic behaviors and without the training needed to recognize them, the actions or reactions of some Autistic individuals may easily seem suspicious or threatening enough to trigger physical confrontations and arrests or worse. For instance, some Autistic individuals respond to everyday life situations and crisis events in ways that may seem counterintuitive.

Thus, because of the hardships that our public environments impose (e.g., excessive noises, sounds, smells, vibrations, etc.) and the neurologically divergent ways in which Autistics process stimuli, some may misunderstand dangerous situations and either fail to stand back or flee when asked to remain. Others may misapprehend behavior intended as comforting and believe themselves imperiled.

Whether “situationally non-verbal” or hindered by confusion or anxiety, Autistics who are subject to unexpected or unfamiliar demands or who are otherwise in a crisis may be temporarily unable to understand or timely and appropriately react to a commanding presence, unfamiliar requests, and non-verbal communication. [I use the phrase “situationally non-verbal” because individuals unable to engage in an extended spoken exchange may be able to communicate when supported by alternative languages (or forms of language), visual aids, or technological supports.]

                        Failings of the Legal System Carry Costs

The case of Ricardo (“Ricky”) Hayes best illustrates the failings of our legal system. Ricky was an Autistic child who had been reported missing after wandering off from his caretaker. He posed no threat save to himself and was unarmed. Several home security videos recorded Ricky running through the streets, first merely lost and clearly tired then frightened by a dark vehicle chasing him.

After Ricky stopped on a residential sidewalk and turned to look at the vehicle—driven by a Chicago Police Department officer—, it stopped in the middle of the street. Ricky appeared to study the driver—who sat in the vehicle and was shielded from view by a parked car between them—and tentatively and calmly began to approach.

Whereupon, the officer shot him twice: once in the chest, once in the arm. As a result, the Chicago Police Department suspended the officer (with pay) and Ricky’s family filed a lawsuit against both the officer and the Department for violation of Ricky’s federal civil rights, rights under the American with Disabilities Act (ADA), and bodily and emotional injuries: Hayes v. City of Chicago et al., Civ. No 1:18-cv-05515 (assigned to the Hon. John Robert Blakey). As of this writing, the defendants had not yet filed an answer. Regardless of the legal outcome, a young man was injured and exposed to trauma not easily overcome.

Another example is the case of Arnaldo Ríos-Soto, an Autistic adult with limited speech ability, and his professional caretaker Charles Kinsey. According to a complaint filed on behalf of Mr. Ríos-Soto, shortly after Mr. Ríos-Soto had wandered off his North Miami residential treatment facility, he sat down on the street, oblivious to danger while playing with his toy truck. Soto v. City of Miami et al., Civ. No. 1:17-CV-22090-RNS, 2017 WL 8948716 (First Amended Complaint).

Assuming he was suicidal and holding a gun, a passerby alerted emergency responders, who showed up brandishing assault rifles and believing Mr. Ríos-Soto intended to engage in criminal conduct. As his caretaker, Mr. Kinsey attempted to communicate with the officers to inform them of Mr. Ríos-Soto’s diagnosis and to clarify that the latter was merely engaged in play.

While Mr. Kinsey lay on the ground—face up, unarmed, and with his hands raised—, two police officers (at least one of which was a sergeant) visually confirmed the statements and transmitted the information over recorded police radio waves. Despite this, another officer twice shot Mr. Kinsey, whose blood showered Mr. Ríos-Soto and whose agonizing screams frightened him further. Both were arrested and placed in handcuffs.

Shortly thereafter, the residential facility’s CEO arrived on the scene, but his efforts to speak on behalf of Mr. Ríos-Soto were actively rejected for at least thirty minutes. Police insisted on questioning him alone for more than two hours even after receiving information about Mr. Ríos-Soto’s diagnosis from this second source.

As a result of these events, Mr. Ríos-Soto’s complaint alleges that he has been traumatized, often reliving the incident and living in abject terror of anyone in uniform. He had to be transferred to a more restrictive treatment facility in a city five (5) hours away (resulting in his family’s need to relocate their work and residence) and is no longer able to participate in community life.

The Miami-Dade Officer of the State Attorney, 11th Judicial District, initiated a criminal investigation and the officer who fired the shots was indicted and charged with two felony counts of attempted manslaughter. Mr. Ríos-Soto’s caretaker, Mr. Kinsey, also filed a federal suit against the charged officer, other officers, and the City of North Miami: Kinsey v. Aledda, Civ. No. 1:16-cv-23330-JAL). Ríos-Soto’s case, once again, illustrates the failings of our legal system to young and old in our society who fall within the Autism Spectrum.

Need for Training of Police and Prosecutors

Inarguably, an Autistic who is unable to effectively engage police resources and to ensure the fair application of any restrictions to their civil and constitutional rights because of his or her neurodivergent thought processes experiences a substantial limitation to major life activities. This substantial limitation would likely qualify him or her as a person with a disability entitled to protection from state-sponsored discrimination under Title II of the ADA.

Specifically, Title II makes it incumbent upon State and local law enforcement to take reasonable steps—including training and the modification of existing practices or protocols—that ensure the protection of Autistics’ individual rights. 42 U.S.C. § 12132. Pursuant to ADA regulations, law enforcement agencies may not transfer the costs of such reasonable steps to the individual requiring them. 28 C.F.R. § 35.130(f).

Jurisdictions around the United States have embraced these obligations (as well as others arising under the Individuals with Disabilities Education Act, IDEA) to varying degrees. Some states have enacted statutes requiring and funding the development of policies and programs to train law enforcement officers on how to recognize certain Autistic behaviors and adapt their interactions. A few include proactive community policing practices that allow officers to build relationships with Autistic individuals and their support systems.

These interactions provide officers strategies to minimize the use of force, use alternative means of communication (including visual supports, electronic tablets, American Sign Language, slower pace, lower volume, and simple sentences), and recognize sensory overload (which may be confused with aggression) and information processing challenges (which may be confused with non-compliance).

The most detailed and effective programs train officers with specificity, expecting them to inquire about the individual’s caregivers or counselors. This training must also provide officers with practice scenarios that confront them with behaviors such as echolalia, the unconventional use of items or association of ideas, and repetitive motions, sometimes called stimming, such as flapping or jumping. (Generally, echolalia is the automatic repetition of sounds or words that may not serve as clear a communicative purpose as shared language that is directly responsive to a comment or question, but which may nevertheless have an expressive or socially interactive function.)

                                Need for Legislative Consideration

Exemplary legislation requires officers to allow the presence of support professionals—irrespective of the presence of counsel— when interviewing Autistic victims and suspects (though, strangely, not necessarily witnesses). It further ensures that—where relevant—all prosecutors, public defenders, and court officials who interact with these individuals are aware of their diagnosis.

This information may alter the balance when making determinations on the legal reasonableness of an Autistics perception or actions, their capacity to meaningfully participate in a hearing (and, if so, for how many minutes or hours at a time), and the appropriateness of any punishment meted out.

During an investigation and throughout any legal process, support professionals can help Autistic individuals articulate their strengths and deficits, slow down the speed of an interrogation, simplify complex language to avoid misunderstandings and frustration, safeguard their need for movement or other sensory accommodations, and alleviate the stress of such an unexpected experience.  

Though better than the absence of legislation, some less comprehensive statutes merely require good faith efforts to obtain professional support and are only triggered when affirmatively requested by the individual or a knowledgeable third party.

There are also those jurisdictions that encourage Autistics to self-identify non-verbally by including diagnostic information in their state identification or driver’s license cards or by wearing a medical bracelet to alert officers about the latter’s obligation to provide reasonable accommodations and use alternative protocols (though what such includes may remain undefined).

Yet, as the Ríos-Soto case demonstrates, identification as an Autistic does not necessarily guarantee civil or constitutional rights in moments of crisis. Moreover, as many advocates have pointed out, an identification card that requires an Autistic in crisis and in the presence of law enforcement to reach into its clothing or a shiny metallic bracelet that may be confused with a weapon may be likely to aggravate an unready tense situation.

                         Current Legislative Efforts in Virginia

In Virginia, the General Assembly has considered various bills to establish training standards and protocols for police interactions with Autistic individuals. While legislation awaits approval, the Department of Criminal Justice Services has stepped in. The Department has multi-faceted responsibilities including oversight and management of training standards and regulations for the criminal justice community, training programs in public safety and homeland security, the Crime Prevention and Accreditation Programs, and the development of law enforcement policies.

The Department has also developed training events under the umbrella of “Autism Awareness for Law Enforcement, K-12 School Personnel, and Campus Security” and also offers “Law Enforcement Response to Individuals with Intellectual/Developmental Disabilities Train the Trainer,” which complement basic police academy training.

There are also interagency training efforts that bring together law enforcement officers with staff from other state agencies such as the Virginia Department of Health and the Department of Education and with members of the public-private partnerships. It is thus that law enforcement training academies across the Commonwealth now provide officer training on the recognition of Autistic traits and the reasonable adaptation of police protocols as part of their general curriculum.

As is done in other jurisdictions, Virginia police officers engage in community policing activities that place them in schools and other education centers that include Autistic students—often as School Resource Officers (SROs). Much of the emphasis of the SRO training is on de-escalation and non-interference strategies that allow the school’s educational and administrative staff to take control of volatile situations. These activities encourage the officers to limit their intervention to maintaining a safe perimeter, whenever possible.

In addition, some local and county officers voluntarily engage in community policing visits at area public and private schools for Autistic children. These visits provide officers an opportunity to engage the children in non-coercive settings, to interact with them in terms others than stereotypes, and to observe how—whether with ease or difficulty—Autistics can self-control when overloaded if allowed to do it in their own terms.

Finally, like other jurisdictions, the Commonwealth has enacted a self-identification initiative known as “JP’s Law.” VA Code §46.2-342; VA Code §46.2-345. The law allows Autistics to include a medical indicator of their Autism Spectrum diagnosis in their state issued identity card or driver’s license as may do those who are Diabetic, Epileptic, or Deaf.

Efforts by those in our public sectors to (re)educate themselves and reasonably accommodate our Commonwealth’s Autistic residents and visitors are not just a commendable indulgence but are rather an imperative of justice. It is clear, of course, that training alone is insufficient without the additional coordination of paramedics, mental health professionals, social workers, and law enforcement.

It is also clear, however, that all government officials who receive continuous education on Autistic behavior and who consistently engage with Autistics in non-crisis settings are better equipped to honor the civil and constitutional rights of this population. They are also better equipped to transform the outcome of any crisis resolution and to facilitate well-grounded fact finding, a fair adjudication of liabilities (if any), and the imposition of proportional remedies (when needed).

Ultimately, this is what all Virginians—rural, urban, and suburban—work for and expect and what no Virginian—Autistic or otherwise—must be denied. Virginia’s legal community needs to get involved; the challenges of autism affect every facet of our legal edifice.

The author, Walewska M. Watkins, is the neurotypical mother of an Autistic child. Ms. Watkins has a Juris Doctor from the Georgetown University Law Center and an LLM from the Tulane University Law School. She is licensed to practice law in the Commonwealth of Virginia as well as in New York, California, the District of Columbia, and her native Puerto Rico.

By Karla D. Carter, Esquire

John Whitfield knows hard times. Born and raised in rural Staunton, Virginia with the Blue Ridge and Allegheny mountains as a backdrop, Whitfield’s family was among the low- income population living in the predominantly rural community. When he was still a child, Whitfield’s mother faced a serious legal problem and could not afford to hire an attorney to represent her in the civil matter. A local lawyer stepped up to offer his services, pro bono. This lawyer’s decision to help a family facing a desperate situation left a lasting impression on the young Whitfield, who later went on to become a lawyer who has devoted his career to helping the poor. Whitfield now serves as Executive Director of Blue Ridge Legal Services, a legal aid organization serving the low-income population in his native Shenandoah and Roanoke River Valleys. His family has received the legal services he now gives to others, and he recognizes its value. “But for the charity of a willing lawyer, my mom’s legal rights would have been worthless,” Whitfield said. The “willing lawyer” who helped his family is now-retired Court of Appeals Judge Rudolph Bumgardner III. He was a private attorney who offered his services to meet a need, a need that continues to persist decades later and which exceeds the capabilities of the legal aid organizations across the Commonwealth.

ACCESS TO LEGAL SERVICES IN VIRGINIA: BY THE NUMBERS

Currently, there is one legal aid lawyer for every 7,237 Virginians. If you can afford a lawyer, that number drops considerably: there is one lawyer for every 349 Virginians.i While these statistics encompass the low-income populations of both rural and urban areas, rural communities in Virginia and across the nation face unique issues by virtue of their geographic location.

COMMON ISSUES AFFECTING THE RURAL POOR

Often times, those in need in rural areas face isolation brought on by the lack of transportation options and limited broadband access in their areas. Also, some of these people are “land poor” in that they don’t have clear title to their land. These “intractable issues” relating to title problems can deprive people of basic needs, according to Ann Kloeckner, Executive Director of Legal Aid Works®, a legal aid organization serving the City of Fredericksburg and 17 rural counties surrounding Fredericksburg and in the Northern Neck region of Virginia. Soon after starting with Legal Aid Works®, Kloeckner toured the Northern Neck region of the state and visited with an attorney-turned-pastor who led a church which ran a “water ministry” in the community providing water to people who were unable to dig wells on their property because they lacked clear title to their land.

In other instances, property is often lost because one or more of the property owners are unknown. One summer, while volunteering at a legal aid office, John Whitfield recalls going through a drawer in the local clerk’s office filled with parcel information cards. All of the cards represented parcels with unknown owners, many of whom are likely part of a recurring scenario I have often come upon in my practice: a family member dies without a will, often leaving heirs spread across multiple generations, some of whom are incarcerated, laboring under some other disability, or otherwise unable to be found. The property sits vacant or becomes dilapidated and is often auctioned for unpaid taxes or is condemned due to blight.

Those undug wells and that drawer full of cards both represent the same thing: the loss of legacies, history, and wealth impacting many poor families in rural America, particularly those in the poor African-American communities.

Along with title problems, Whitfield and Kloeckner describe another issue impacting the communities they represent: affordable housing. According to Whitfield, “substandard housing” in rural areas of Virginia is only too common. “Rural landlords get away with a lot,” says Whitfield, because existing buildings are not subject to inspection and often there is no code enforcement services available in rural communities. “It is much harder when you don’t have a building code official to enforce,” says Whitfield. People living in “third world conditions” but don’t want to “rock the boat” because the housing, albeit substandard, is all they can afford, says Kloeckner. “The power of having a landlord/tenant attorney represent you in court makes so much difference,” said Kloeckner. A recent study of the Virginia court system underscores this truth.

A DYSFUNCTIONAL SYSTEM

Unrepresented tenants often fare poorly in court, compared to those who have attorneys, according to a study produced by the National Center for State Courts. (ii) The study, the first of its kind in Virginia, discusses civil case outcomes in the General District, Juvenile & Domestic Relations, and Circuit courts in the Commonwealth. The study shows a clear correlation between poverty and the lack of legal representation in the courts. The study found that the greater the extent of poverty in a locality (often a rural community), the less likely that parties will have an attorney. (iii)

This lack of representation of the poor in court more often than not translates into unfavorable outcomes for the unrepresented litigant. “Poverty, and the concomitant inability to retain counsel creates a significant barrier to successful outcomes for unrepresented poor litigants in Virginia’s courts, notwithstanding the best efforts of our judges to treat all litigants fairly,” said Whitfield in a presentation on the findings of the study. (iv)

Of the 24,168 active attorneys practicing in Virginia as of April 2017,(v) 132 are legal aid attorneys, (vi) in a state where nearly a million people live in poverty (942,122), according to U.S. Census 2016 estimates.vii The staggering need for the assistance of willing attorneys to provide pro bono services in Virginia cannot be emphasized enough.  

ANSWER THE CALL

An attorney’s decision to serve, or if unable to serve, then to donate in support of legal aid organizations, has the potential to set into motion a course of events that could alter the trajectory of not only the person being represented, but that of their families and communities. In John Whitfield’s case, the choice one lawyer made many years ago to help his family in need was a seed sown in Whitfield’s life, a seed which continues to yield a great harvest in the form of the lives of the many people and families he has been able to assist during his career.

Consider being another “willing lawyer,” like the one who helped John Whitfield’s mother those many years ago. The Virginia Rules of Professional Conduct, Rule 6.1 encourages attorneys to devote time or money to pro bono service. The Comment to Rule 6.1 provides:

Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.

Attorneys who find themselves unable to take on pro bono cases are still able to help. Monetary donations are critical to the success of legal aid organizations and also meet the Virginia State Bar’s goals for attorney pro bono participation.viii An attorney’s donation of time or money will have a lasting impact. Every minute donated matters, as does every dollar, no matter the amount.

Just ask John Whitfield.

HOW YOU CAN HELP

Contact the legal aid organization in your area to find out ways to volunteer or donate. Several of the organizations are listed below, but for additional information on pro bono resources available to attorneys, visit the Virginia State Bar’s website at:

https://www.vsb.org/site/sections/pro_bono/resources_for_attorneys.

•Blue Ridge Legal Services – (540) 433-1830 (main office in Harrisonburg, offices in Winchester, Lexington, and Roanoke) http://brls.org/

•Central Virginia Legal Aid Society – (804) 200-6046 or (804) 648-1012 (main office in Richmond, offices in Petersburg, and Charlottesville) http://cvlas.org/

•Legal Aid Justice Center – (434) 977-0553 (main office in Charlottesville, offices in Richmond, Petersburg, and Falls Church) https://www.justice4all.org/

•Legal Aid Society of Eastern Virginia – (757) 627-5423 (main office in Norfolk, offices in Hampton, Virginia Beach, Belle Haven, and Williamsburg) https://www.laseva.org/

•Legal Aid Society of Roanoke Valley – (540) 344-2080 (Roanoke) http://lasrv.org/

•Legal Services of Northern Virginia – (703) 778-6800 (main office in Falls Church, offices in Arlington, Alexandria, Fairfax, Leesburg, and Manassas) http://www.lsnv.org/

•Legal Aid Works – (540) 371-1105 (main offices in Fredericksburg, offices in Culpeper, and Tappahannock) http://www.legalaidworks.org/

•Southwest Virginia Legal Aid – (888) 201-2772 (main office in Marion, offices in Castlewood and Christiansburg) https://www.swvalegalaid.org/

•Virginia Legal Aid Society – (434) 455-3080 (main office in Lynchburg, offices in Danville, Farmville, and Suffolk) http://vlas.org/

•A new Pro Bono Portal is now available that connects attorneys with multiple legal aid services providers through one site, allowing attorneys to take on a case anywhere in the state. For more information visit: https://www.justiceserver.org/JusticeServer/Home/Index.

i Source: “Ten Facts About Virginia’s Justice Gap,” Virginia State Bar Pro Bono/Access to Legal Services

ii Source: The Virginia Self-Represented Litigant Study, National Center for State Courts, 2017, see http://brls.org/the-virginia-self-represented-litigant-study/

iii Source: The Virginia Self-Represented Litigant Study, National Center for State Courts, 2017, see http://brls.org/the-virginia-self-represented-litigant-study/

iv Source: Powerpoint presentation of John Whitfield “The Virginia Self-Represented Litigant Study: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court”

v Source: Powerpoint presentation of John Whitfield “The Justice Gap: Perspectives from the Bench on Pro Bono Services”

vi Source Source: Powerpoint presentation of John Whitfield “The Justice Gap: Perspectives from the Bench on Pro Bono Services” (quoting LSCV Annual Report, September 2016)

vii Source Source: Powerpoint presentation of John Whitfield “The Justice Gap: Perspectives from the Bench on Pro Bono Services”

viii From the Virginia State Bar Rules of Professional Conduct, Rule 6.1, subsection (c) provides: Direct financial support of programs that provide direct delivery of legal services to meet the needs described in (a) above is an alternative method for fulfilling a lawyer’s responsibility under this Rule.

AUTHOR BIO Karla Carter is an assistant city attorney for the City of Suffolk, Virginia where she represents the City, the Suffolk Economic Development Authority, and various boards and commissions on various matters involving real estate, land use, economic development, environmental law, franchises, and child welfare law. Prior to coming to Suffolk in 2006, Ms. Carter served as an assistant city attorney in Virginia Beach (1999-2006) and as a law clerk for the Seventh Judicial Circuit (Newport News) (1997-1999). A native of Lancaster County, a rural community in the Northern Neck of Virginia, Ms. Carter graduated from the College of William and Mary in 1993 and the University of Richmond School of Law in 1997.

                                Colleen Miller, Esq and Darrel Tillar Mason, Esq

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

                                What the dLCV Does

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

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

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

                                The Need is Enormous

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

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

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

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

                                 For More Information

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

Authors

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

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

by Chris Fortier

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

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

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

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

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

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

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

____________________________________________________________________

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

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

by Chris Fortier

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

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

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

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

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

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

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

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

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

By Chris Fortier

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

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

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

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

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

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

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

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

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

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

By Chris Fortier

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

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

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

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

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

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

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

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

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

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

By Bernard J. Milano

KPMG Foundation formed The PhD Project in 1994 to encourage minorities to enter business doctoral programs. The model it developed includes holding an annual conference attended by more than 90 doctoral program partners to which 350-400 prospective doctoral students are invited. For those admitted to a doctoral program, the model, which includes support networks, has produced a 90 percent completion rate and almost all have accepted faculty positions. 

For decades, no one in traditional doctoral business education seemed to believe the “D” in Ph.D. might also stand for diversity. KPMG Foundation formed The PhD Project in 1994 and set out to help change that perception. In 2005, KPMG Foundation spun out The PhD Project as a separate nonprofit but continues to provide the administration and is the principal funder.

In the last 24 years, the number of African-Americans, Hispanic-Americans, and Native Americans with a business Ph.D. has jumped from only 294 nationwide to 1,470; and there are nearly 300 Ph.D. students in The PhD Project pipeline. 

While it is the hiring universities that are entitled to the credit for the increase, I like to think The PhD Project’s successes have contributed. In addition, I believe the model it developed for attracting, recruiting, and supporting minority doctoral students as they become business faculty, in joint effort with the universities, may provide a model readily adaptable by other disciplines.

Finding a successful model is critical. Higher education institutions today find themselves squeezed uncomfortably as they face a growing faculty shortage with boomer-generation professors retiring. The rising cost of training the generation that will replace them heightens the need to identify qualified applicants for the costly, time-consuming Ph.D. program. This is why our model may benefit other disciplines — it has produced a 90 percent completion rate by pre-qualifying prospective students for hiring universities. In addition, it operates a year-round peer-based support network that gives doctoral students useful supplemental resources and knowledge, along with peer support to overcome the challenging moments all doctoral student’s experience. 

The PhD Project recruits minorities from the business professions and current students into doctoral programs in all business disciplines. Annually, a committee of academics and The PhD Project staff review applications to attend an annual informational conference on the doctoral process and select some 350-400 prospective students to attend. Eligible applicants are African-American, Hispanic-American, or Native American U.S. citizens or permanent residents who either possess an undergraduate degree or are in their last year of college.

The conference includes a recruitment event with representatives from more than 90 university doctoral programs (there are 130 universities that offer a Ph.D. in business). Prospective doctoral students meet face-to-face with university representatives from across the U.S. It is the only known event in higher education where doctoral programs gather in one place to proactively recruit and compete for talented minority prospective Ph.D. students. 

From our experience, the conference establishes an important starting point in a road that will lead, five or six years later, to the applicant reaching the job market as a new Ph.D. graduate, and then participating in the faculty hiring we have seen taking place at historic rates since 1994. Each year, approximately 15 percent of event attendees are admitted to a doctoral program usually over the following one to five years, and with tuition and fees waived.

At the conference, university representatives can interact with a large pool of motivated, qualified, and talented minority professionals and students — individuals primed to become tomorrow’s professors. I believe this exposure has helped shift the mindset of university business programs to one where they not only desire but compete for minority doctoral students. As our students progress through their doctoral studies, their universities further observe them benefiting from the enrichment and preparation they receive through our five Doctoral Student Associations, in accounting, finance and economics, information systems, management and marketing.

“You have 350 to 400 aspiring Ph.D.s in one place,” notes recruiter and assistant professor Melvin Smith of Case Western Reserve University, which currently has six doctoral students from The PhD Project and has graduated many more. “People can search online for you, and you could search for them, but it takes months. At The PhD Project [conference] it happens in a day, and you put a face to the name. It means so much more than a piece of paper.”

“The PhD Project has transformed the landscape on the development of minority faculty, and it has done so against considerable odds and initial skepticism,” says Ralph Katerberg, associate professor and former business doctoral program head at the University of Cincinnati. “Many schools have people on their faculties who would not have been there if it were not for The PhD Project.” 

Schools often use the conference as a platform to inform students about their programs and attributes. Arizona State uses it to spread word about its concentrations and current faculty research. Texas A&M uses the conference to educate students about lifestyle issues. “Prospective students have interest in our program, but they don’t have a lot of information about living in College Station, Texas, so we told them about it at the conference,” explains Chris Porter, former associate professor at Texas A&M, now at Indiana University.

Ninety-seven percent of those who earn a Ph.D. and are involved in The PhD Project go into faculty positions. The program produced 43 new faculty in 2017 and 23 in 2018 as of this writing. We have nearly 300 doctoral students in the pipeline. 

The PhD Project has shattered forever the myth that there are not enough minorities interested in earning a business doctorate. “You can no longer say, ‘I can’t find one,’” observes North Carolina Central University professor, Alisha Malloy.

The PhD Project’s approach may show a way for other academic disciplines to meet their growing faculty hiring crisis. While our model is focused on business and minorities, there is no reason why any discipline cannot adopt a version of it to partner with the appropriate professional organizations in their field to market an academic career in that discipline, and to pre-qualify, prepare, and provide support for the doctoral students — tomorrow’s professors — that they attract. 

For additional information about the program, visit our website or contact Lisa King. 

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Bernard J. Milano is the president of the KPMG Foundation and The PhD Project.