Beyond 'sellouts' and 'race cards': black attorneys and the straightjacket of legal practice.

• Author: Russell, Margaret M.
• Position: Symposium: Representing Race

1. INTRODUCTION: REPRESENTING RACE

   For attorneys of color, the concept of "representing race" within the context of everyday legal practice is neither new nor voluntarily learned; at a basic level, it is what we do whenever we enter a courtroom or conference room in the predominantly white legal system of this country. The ineluctable visibility of racial minorities in the legal profession, as well as the often unspoken but nevertheless deeply felt sense of racially hierarchical positioning to which this visibility subjects us, are aptly expressed in the following droll recollection of a 1960s-era Black civil rights lawyer:

   A favorite story among Southern black attorneys was of the black

   lawyer who was to argue a case before the Mississippi Supreme Court.

   He had prepared his briefs with great precision and scholarship, and

   was quite confident that the law was in favor of his client-that is, as

   confident as a black lawyer can be in a Southern court. However, in

   his concentration on the law, he had neglected to look up the proper

   way to address the Supreme Court before beginning his argument. A

   stylized, formal address is always used in speaking to an appellate

   court, differing from court to court, but it's usually some variation of

   "May it please the distinguished Chief Justice and the distinguished

   Associate Justices of this Honorable Court." Being forced to call

   upon his instinct for an improvised form of address, he arose, looked

   up and down the bench, and said, "Good morning, white folks." His

   brief could not have stated the issue of the case more realistically and

   precisely than this spontaneous greeting.(1)

   Although it is often assumed that people of color initiate or even "instigate" extemporaneous comments about race in legal proceedings, the reality is that many people of color -- like the Black lawyer in the tale above -- simply articulate a subtext that is unmentioned but obvious: that their minority racial presence is forced into stark and distorted relief against an otherwise seemingly "transparent" background of white omnipresence.(2) Attorneys of color often find that they are identified, categorized, and evaluated first as members of their racial group, and only secondarily -- if at all -- as lawyers. In this sense, "representing race" is a fundamental and inescapable part of minority attorneys' professional identity and political function as marginalized actors in the mainstream legal system, quite apart from and transcendent of the particulars of individual client representation. As suggested above, this phenomenon derives its salience from two factors: the paucity of people of color in the legal profession;(3) and the debasing and racially prejudicial slights to which they are subjected on a recurrent basis.(4)

   Regarding the first factor, minority attorneys still suffer from severe underrepresentation in the legal profession. At the beginning of this decade, Blacks, Asian Americans, Latinos and Latinas, and Native Americans comprised only twelve percent of the nation's law students, less than eight percent of lawyers, eight percent of law professors, and two percent of the partners at the nation's largest law firms.(5) When compared with the overall percentage of people of color in the national population -- approximately twenty-five percent(6) -- these paltry figures illustrate the extent to which attorneys of color are still very much a token presence in the legal system.(7) Worse still, this phenomenon doubly exacerbates the conditions of isolation experienced by minority lawyers, because their numbers are just high enough to undermine claims of white racial exclusivity in the profession, yet far too low to facilitate the comforting sense of belonging or even anonymity that attaches quite naturally to white lawyers.(8)

   The double bind that tokenization imposes on minority attorneys is the pressure to comport themselves generally as though the legal profession is integrated, colorblind, and even raceless, yet to take on the burdens -- gratefully! -- of role-modeling and otherwise representing their race on the occasional race commission or diversity committee instituted by their colleagues to manifest concern for the plight of minorities. Thus, minority attorneys, even while expressing their desire to volunteer to assist communities of color within and outside the legal profession, sometimes complain that they are somehow expected "naturally" to take on the emotional and temporal demands of extra "race work" as though it were the responsibility solely of nonwhites to eradicate discrimination.(9)

   If tokenization represents the first set of problems confronting minority attorneys, a second set of obstacles may be attributed to the daily, unrelenting mistreatment to which many minority attorneys are subjected. Attorneys of color often find their everyday professional and personal encounters peppered with reminders of their minority status in the legal system.(10) For example, the New York Judicial Commission on Minorities found that fourteen percent of its surveyed litigators asserted that judges, lawyers, or courtroom personnel publicly repeat ethnic jokes, use racial epithets, or make demeaning remarks about a minority group "often" or "very often"; another twenty-three percent stated that such comments occur "sometimes."(11) Moreover, minorities in the legal profession report anecdotally that outside the legal setting -- for example, in pursuing such mundane tasks as hailing taxis,(12) boarding elevators,(13) shopping for clothes,(14) or driving down the street(15) -- they are visually "sized up" according to their color rather than the accoutrements of upper-middle-class professional status that they thought might insulate them from suspicion.(16) The debilitating, lingering effects of such routine and recurrent degrading treatment should not be underestimated as significant influences in the formation of professional identity. Most attorneys of color are forced to invoke the prevailing lawyerly ethos of becoming thick-skinned and detached -- that is, if they hope to remain in the profession with their sanity and composure reasonably intact. This response, combined with other age-old survival mechanisms used by people of color trapped in racist environments, usually helps render everyday interactions tolerable. But it would be naive to assume that the above factors -- tokenization and everyday, microaggressive harassment -- do not exert a profound and destabilizing impact upon minority lawyers' conceptions of professionalism, attorney-client interaction, case selection, layering strategy, courtroom behavior, and a host of other concerns. For women of color in the legal profession, gender bias further exacerbates the burdens of "high visibility, few mentors and role models, and additional counseling and committee responsibilities.(17) Although research literature infrequently addresses the particular obstacles faced by those also discriminated against on the basis of sexual orientation or disability, one might well imagine the inhibitory effects of those factors as well.

   Therefore, when a symposium such as this focuses much-needed scholarly attention on the possible intersections of critical theory and progressive practice with respect to the representation of race in the legal process, it is crucial to keep in mind that attorneys of color bring vastly different experiences from those of white attorneys to the underlying issues at hand. Regardless of which specialty or career path within the legal profession minority attorneys choose, they face a distinctly different set of obstacles than do whites, particularly in cases potentially involving racial issues. Although recent scholarship in lawyering theory has been quite illuminating in exploring a broad array of themes concerning the socially constructed nature of client identity and lawyer identity in progressive practice, the role of race in these constructions deserves greater attention.(18)

   In this essay, I focus on some of the pressures and constraints faced by Black attorneys in particular when addressing issues of race in legal proceedings.(19) I argue that when issues of race are at least arguably relevant factors in a case, Black attorneys face an unduly restrictive set of choices, each of which carries impossible burdens. Saddled with the tacit professional expectation of being responsible for identifying, fixing, or rationalizing away race problems outside the courtroom, Black attorneys who raise such concerns in court often face a heavy burden of justifying either that race really exists as an issue at all, or that they are competent to address the topic of race in a fair and reasoned manner. When Black attorneys articulate racism as a primary factor in a particular case, they may encounter fractious demands that they "prove it," or harsh accusations that they are "playing the race card" or otherwise engaging in unprofessional behavior. Conversely, when Black attorneys take on advocacy obligations that require the subordination and decontextualization of issues of race in the service of other objectives, they may be labeled as "sellouts" who have abandoned their communities. Whatever the choice, the focus of such cases inevitably becomes not just race, but their race and their lawyerly merits as well. Unlike white attorneys, who have the relatively luxurious comfort of invisibility and transparency in raising issues of race in the lawyering process, Black attorneys must always brace themselves to have their racial, professional, and personal identities placed in issue as well. This additional layer of scrutiny and suspicion may in turn raise for the Black attorney difficult professional and personal questions of identity, autonomy, authenticity, and loyalty. Unless, as suggested above, Black attorneys steel themselves mentally and emotionally for the extra demands of race work in a legal system that still operates...