The ethics argument for promoting equality in the profession
In 2016, the ABA took another important step in the ongoing battle to eliminate discrimination and promote diversity in the legal profession. It amended its Model Rules of Professional Conduct to declare discrimination professional misconduct, and it adopted a resolution intended to promote diversity in the legal profession. It is now time to take the next step and recognize a lawyer’s affirmative obligation to promote diversity in the profession and equality in society by adopting a new Rule 8.5, as follows:
As a learned member of society with an ethical obligation to promote the ideal of equality for all members of society, every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession. Every lawyer should aspire to devote at least 20 hours per year to efforts to eliminate bias and promote equality, diversity and inclusion in the legal profession. Examples of such efforts include but are not limited to: adopting measures to promote the identification, hiring and advancement of diverse lawyers and legal professionals; attending CLE and non-CLE programs concerning issues of discrimination, explicit and implicit bias, and diversity; and active participation in and financial support of organizations and associations dedicated to remedying bias and promoting equality, diversity and inclusion in the profession.
Recognizing a lawyer’s professional responsibility to promote diversity and equality would be an incremental step forward in our profession’s evolution toward recognizing our professional obligations to society. By recognizing our professional responsibility to solve a problem of our making, the proposed new rule holds the promise to advance and reenergize our efforts to create a diverse and inclusive legal profession. Importantly, this concept is well-grounded in our profession’s historical role in society and in precedent. Let me explain why I believe this so strongly.
There can be little dispute that promoting diversity in the legal profession has proven to be an enduring challenge despite sincere, persistent efforts. We have made a moral case for diversity: “It’s the right thing to do.” And we have made a business case for diversity: “Our clients are demanding we become more diverse.” Both are good arguments that have advanced the cause of promoting diversity in the profession. Nevertheless, it is clear that neither approach has had the transformative impact initially hoped for because neither approach demands or empowers the legal profession as a whole to own the problem and the solution.
The nature of a moral case for diversity limits its power because morals are broad, subjective principles. Even when there is agreement on a moral principle, there can be intense disagreement concerning its application in a specific context. For example, two people can agree on the sanctity of life as a moral principle yet disagree intensely on issues such as abortion or the death penalty. Thus, even a shared moral value may prove inadequate to establish consensus on a specific issue or course of action. In a society that has yet to reach agreement on the meaning of equality and the appropriate remedy for inequality, it is unsurprising that the moral case for diversity in the legal profession has not proven to be a call to action.
The shortcomings of the moral case for diversity inspired what is generally considered the business case for action. The business case is epitomized by the 2004 statement by the Leadership Council on Legal Diversity, “A Call to Action—Diversity in the Legal Profession.” It was the brainchild of the LCLD’s founder, Roderick “Rick” Palmore, then Sara Lee’s executive vice president and general counsel. It called for more aggressive action and measurable accountability to drive diversity.
The business case for diversity is compelling because it bypasses differences of opinion about the value of promoting diversity, i.e., whether it is the right thing to do, by refocusing on the shared business imperative of meeting clients’ demands. Yet despite years of sincere effort, the pace of change remains frustratingly slow. There is, however, another consensus value that holds transformative power for advancing diversity in the profession as the business case for diversity. It is the ethics case for diversity.
Rules have evolved
The ethics case for diversity is grounded in our profession’s original and historical role in society and in the evolution of our codified ethics rules. At the time of our nation’s founding, our fledging democracy turned to the legal profession to make real the rights conferred in our founding documents, the Declaration of Independence, the Constitution and the Bill of Rights. Marbury v. Madison, which established the doctrine of judicial review, legitimized and endorsed the legal profession’s right and obligation to enforce our social contract. Lawyers, as advocates and judges, have continued to perform this mission over the entire course of our nation’s existence through cases such as Gideon v. Wainright (Sixth Amendment right to counsel), Brown v. Board of Education (declaring separate-but-equal unconstitutional), Roe v. Wade (woman’s right to privacy) and Obergefell v. Hodges (equal protection for same-sex marriage). In each of these cases, the U.S. Supreme Court enforced fundamental protections enshrined in the Constitution, often well before widespread public acceptance of those rights.
Our rules of professional responsibility have similarly reflected our profession’s conception of its obligations to society and have evolved as that conception changes. The first incarnation of our ethics standards, the Canons of Professional Ethics, did not address discrimination (at the time, ABA membership was not open to African Americans or women) or pro bono legal services.
Yet over time, the ABA declared discrimination to be professional misconduct and recognized a professional obligation to provide pro bono legal services, even setting an aspirational goal that each lawyer should render 50 hours of pro bono services per year.
It is time to take the next logical step. That is why the ABA should adopt a new Model Rule 8.5, as stated above, that would recognize a lawyer’s professional responsibility to promote equality in society generally, diversity in the legal profession specifically, and encourage lawyers to devote 20 hours annually to activities directed toward promoting diversity in the profession.
Why would such a change matter? Because recognizing a lawyer’s ethical obligation to promote diversity bridges the gap between the moral case for diversity and the business case for diversity. It invokes shared values and professional responsibility. To establish that, we have the obligation and the agency to pursue liberty and justice for all, within and outside our practices. It compels us to use our skills and station, independent of our clients’ interests.
The proposed Model Rule would constitute the profession’s call to action, independent of appeal to broad, moral precepts or market demand. It reaches beyond our current initiatives by placing responsibility for promoting diversity and equality where it belongs—with all lawyers, regardless of their practice setting. Although largely aspirational, it establishes a standard against which performance can be both encouraged and measured, like the rule encouraging 50 hours of pro bono legal services.
Fundamentally, it would be an important acknowledgment that we, as a profession, own the problem of the enduring lack of diversity in our profession and that we as a profession must own the solution. Given the undeniably enduring lack of diversity in our profession, adopting this proposed rule would be a modest but potentially impactful next step in our ongoing commitment to achieving a diverse and inclusive profession that is consistent with our role as guardians of the nation’s democratic values and the evolutionary arc of our Model Rules of Professional Responsibility.
This article ran in the Winter 2019-2020 issue of the ABA Journal with the headline “Just Actions, Not Just Words: The ethics argument for promoting equality in the profession.”
David Douglass is managing partner of the Washington, D.C., office of Sheppard Mullin Richter & Hampton. He is a former chair of the ABA’s Health Law Section and the inaugural recipient of the section’s Champion of Diversity and Inclusion Award.