Eliminating Implicit Bias among Lawyers, Part 1
By Rebecca Howlett and Cynthia Sharp
What a sad era when it is easier to smash an atom than a prejudice.
—Albert Einstein
Imagine this scenario: Dan, a prominent black attorney in a major city, arrives at his adversary’s office for a scheduled deposition. As he enters the waiting area, the receptionist offers the greeting: “Hello. Please have a seat. The lawyers will arrive soon.”
Most likely, the receptionist’s incorrect assumption about Dan’s professional status was innocent and simply a manifestation of her implicit or unconscious bias. She is not alone. We all harbor implicit bias at some level and make judgments about others, as well as ourselves, consistent with these predispositions. People are routinely stereotyped on the basis of race, ethnic origin, religion, gender, sexual orientation, weight, age, neurodiversity, disability, and even physical attractiveness. The list of cultural categories is seemingly endless.
The Science of Implicit Bias
Implicit bias can negatively affect anyone—both as a perpetrator and victim of prejudice. This is because unconscious bias affects our perceptions of others and situations. As the saying goes, perception shapes reality.
Our implicit biases are informed by schemas, which are automatic assumptions that we have about others or situations. Schemas exist for a host of various traits and characteristics, such as gender, age, and ethnic origin, as well as social situations and events. These assumptions are derived through our experiences, including direct, real-world encounters, and also are learned vicariously and reinforced through culture, stories, books, movies, and media. As such, our implicit biases are learned early in life and although they may change or evolve as we amass more life experiences and learn new information, they are generally very resistant to change.
Schemas serve important roles in our cognitive functioning and ultimately simplify our interactions with the world. For example, they enable us to “think fast” and act as shortcuts so we can quickly integrate large amounts of incoming information without spending a lot of time actively analyzing it.
Despite their usefulness, however, schemas can often conflict with our consciously held attitudes and beliefs, as well as reality. Critically, our implicit biases influence what information we actually pay attention to—we gravitate to information that upholds our pre-existing assumptions and tend to ignore information that contradicts or does not fit. Because of this, our schemas may be based in stereotypes that cause us to misinterpret information in our environment and can lead to discriminatory behaviors in practice.
Again, it is important to recognize that we all carry biases as we are products of our system. This ultimately means that truly well-intentioned people are biased at the unconscious level. Although our implicit biases are generally resistant to change, we can achieve gradual change if we are constantly confronted with recurring evidence of our need to modify these assumptions. No one said outwitting your own brain was going to be easy.
The Legal Setting
As noted above, implicit bias can lead to discriminatory behavior that is harmful to those being marginalized and society at large. As lawyers, we serve a pluralistic society and must develop the ability to communicate with and advocate effectively on behalf of clients from diverse backgrounds. This includes developing cultural competence and mastery of the language of diversity, equity, and inclusion. Educating ourselves about the racial disparities in the criminal justice system is an eye-opening experience as well.
Continuing Legal Education
A number of states have imposed a CLE requirement in the area of diversity, inclusion, and elimination of bias. In supporting adoption of such a rule, the Committee on CLE of the New York State Bar Association stated: “NYSBA considers increasing diversity and inclusion and elimination of bias in the profession and in the practice of law to be essential to respond effectively to the needs of our changing society.” Taking a contrary position, the MCLE Committee of the State Bar of Texas unanimously rejected a proposal that would impose such a requirement.
Ethical Obligation
Implicit bias can lead an attorney to engage in unethical behavior by overtly demonstrating bias or prejudice. Lawyers in most jurisdictions are ethically bound to refrain from such conduct under ABA Model Rule of Professional Conduct 8.4 (g).
Under Model Rule 8.4, “It is professional misconduct for a lawyer to . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”
Space limitations prevent us from offering a comprehensive analysis of the comments and case law developments. However, a couple of recent developments are worth noting.
In December 2020 a federal judge in Philadelphia struck down Pennsylvania’s version of 8.4 (g), citing First Amendment considerations. Stay tuned for future developments on this front in Pennsylvania, as well as other states.
A 2019 New Jersey case involved an attorney who made demeaning and discriminatory statements about Chinese culture in correspondence directed to adverse counsel. An example of the language that earned the lawyer a reprimand is: “In fact, lying to achieve some business or social aim, and getting away with it, is considered to be a sign of intelligence and social skill among many Chinese.” Along these lines, we have been appalled at the sharp rise in hate crimes directed at people of Asian descent. Aren’t we better than this as a country, as a culture?
Interrupting Implicit Bias
Given the critical importance of exercising fairness and equality in the legal system, it is incumbent on all of us—including lawyers, judges, jurors, and staff—to identify our implicit biases and take conscious steps to curtail their potentially harmful effects.
We’ve identified a few action steps that will help you shift baked-in, subconscious beliefs:
1. Try to understand where your own implicit biases lie. A good starting point is the “Implicit Association Test,” developed by Harvard University’s Project Implicit, an international collaboration of researchers. Until a bias is identified, it is nearly impossible to unlearn it and reprogram yourself.
2. Develop cultural competence. One way to expand your horizons is to have open conversations with those from diverse backgrounds. Be willing to actively listen and hold space for divergent perspectives. Get curious, ask questions, and you may be surprised at the insight and empathy that you gain.
3. Commit to learning something new every day. Our personal reading list can be found on our website. If you gravitate toward video, check out our recent interview with Cedric Ashley, Editor-in-Chief of GPSolo magazine and former diversity director of the Solo, Small Firm and General Practice Division. We greatly appreciate his matter-of-fact perspectives. Check it out!
4. Build an inclusive law firm culture by adopting diversity and inclusion as core values. This process includes consciously creating a diverse workplace, patronizing diverse vendors, and supporting the diversity and inclusion efforts of professional organizations.
5. Explore the benefits of mindfulness to cultivate awareness. Actively developing our awareness is one of the key steps we can take to ensure we are not acting discriminatively toward others (even unbeknownst to ourselves!)
Expanding Awareness through Mindfulness
Mindfulness is a simple yet effective tool that can help us recognize implicit bias in ourselves and others. Among its many benefits, consistently practicing mindfulness meditation can strengthen our awareness—including awareness of self, how we interact and communicate with others, and how we generally view the world.
When we practice mindfulness, we create and hold space to objectively observe our experiences, which helps us slow down and make conscious decisions rooted in awareness. By strengthening our awareness, we are better able to recognize when our actions discriminate against others, even when that was not our intent.
If you are looking to integrate mindfulness practices into your everyday life to increase your awareness—the first step to identifying and unpacking your own unconscious biases—e-mail us directly or subscribe to our mailing list at legalburnout.com for a copy of our Mindfulness Resources Guide.
The Path Forward
In part two of this series, scheduled to be published in next month’s GPSolo eReport, we will continue exploring the role of mindfulness in shifting subtle and unproductive paradigms. We will take a close look at cultural competence and examine the importance of inclusive language.
Every legal professional can play a role in breaking down stereotypes and overcoming implicit bias. Are you willing to do your part by taking even one small step as suggested above?
© 2021. Originally published in GP Solo eReport, March 2021 Issue (Vol. 10, No. 8) by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.