Ethics. Just actions, not just words

• Author: David Douglass
• Pages: 30-31

30

ABA JOURNAL | WINTER 2019-2020

Open your physical frame—shoulders

back, hands and arms open, spine tall—

allowing energy, blood and oxygen to

ow in a productive way and power

your brain.

Step 3: Cut the power source

Curry cautions, “Remain silent, and you

collude with bullies.” To defuse bullies,

to cut their power source, we must

assert, and we can do it concisely and

deftly. We’re not going to engage in a

debate. We are not going to get defen-

sive or make excuses. We are not going

to try to bond. We’re going to deliver a

short, concrete assertion that cuts to the

chase. Consider a combination of these:

• “I perceive that you are trying to [in-

timidate/confuse/rattle/manipulate/

embarrass/humiliate/demean/test]

me.”

• “I worked hard to be here. I’m

working hard right now.”

• “Raising your voice at me is the

opposite of motivation.”

• “Demeaning me is not conducive to

moving this case forward.”

• “My goal is to do a great job for

you, but respectfully, I can’t read

your mind.”

I know it might be scary to try to

cut the power source of a bully, espe-

cially if we work for one, and we want

and need the job. But it’s quite possible

that no one has ever stood up to this

person. Let’s honor the hard work we

invested in our legal education and

training. Let’s make our profession

better. Borrowing from the great boxing

champion Muhammad Ali, let’s empow-

er ourselves to stand tall and convey: “If

you even dream of [bullying] me, you’d

better wake up and apologize.” Q

Heidi K. Brown is an associate profes-

sor of law and director of legal writing

at Brooklyn Law School. She is the au-

thor of The Introverted Lawyer: A Sev-

en-Step Journey Toward Authentically

Empowered Advocacy (ABA 2017) and

Untangling Fear in Lawyering: A Four-

Step Journey Toward Powerful Advoca-

cy (ABA 2019).

Practice Matters | ETHICS

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 profes-

sion. It is now time to take the next step

and recognize a lawyer’s afrmative

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 pro-

mote the ideal of equality for all

members of society, every lawyer

has a professional duty to under-

take afrmative steps to remedy

de facto and de jure discrimina-

tion, 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 equal-

ity, diversity and inclusion in the

legal profession. Examples of such

efforts include but are not limited

to: adopting measures to promote

the identication, hiring and

advancement of diverse lawyers

and legal professionals; attending

CLE and non-CLE programs con-

cerning issues of discrimination,

explicit and implicit bias, and

diversity; and active participation

in and nancial support of organi-

zations and associations dedicated

to remedying bias and promoting

equality, diversity and inclusion in

the profession.

ETHICS

Just Actions,

Not Just Words

The ethics argument for promoting equality in the profession

BY DAVID DOUGLASS

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 di-

verse and inclusive legal profession. Im-

portantly, 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 pro-

moting 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 de-

mands or empowers the legal profession

as a whole to own the problem and the

solution.

The nature of a moral case for diver-

sity limits its power because morals are

broad, subjective principles. Even when

there is agreement on a moral princi-

ple, there can be intense disagreement

concerning its application in a specic

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.

Continued on page 32