Straightjacketing professionalism: a comment on Russell.

• Author: Wilkins, David B.
• Position: Response to article by Margaret M. Russell in this issue, p. 766 - Symposium: Representing Race

Professor Russell's essay(1) sounds a much needed cautionary note about the public's characterization of Christopher Darden and Johnnie Cochran both during and after the spectacle of O.J. Simpson's criminal trial. Russell cogently argues that Darden and Cochran's choices, as well as those of other black lawyers confronting similar problems,(2) must be evaluated against the backdrop of racism that devalues and constrains the lives of African Americans in general and African-American lawyers in particular.(3) Black lawyers, Russell insists, not only face "glass ceilings" inhibiting their advancement, but must also live inside "glass bubble[s] . . . that severely circumscribe[ ] the flexibility and creativity so critical to the Black lawyer's -- or indeed any lawyer's -- professional identity."(4)

Given continuing racism and the difficulties associated with being a "token," Russell argues that branding black attorneys such as Darden and Cochran as either "sellouts" or reckless opportunists who "play the race card" saddles African-American lawyers with problems "essentially not of their creation."(5) In addition, she asserts that employing these tropes perpetuates a false dichotomy between, on the one hand, "raising racism as an issue," and, on the other, "claiming the irrelevance of race."(6) This false conflict, Russell concludes, reinforces racial hierarchy by "accentuat[ing] intraracial conflict."(7) More important, it deprives black attorneys of the "critically-needed latitude" they need to begin to explore "complex questions of legal professionalism, ethics, community identification, race-conscious lawyering strategies, or political agenda formation."(8)

I share Russell's intuition. Discussions of the "Darden Dilemma" and the "Cochran Conundrum" must account for the manner in which racism first constrained the choices these two men faced, and then shaped the public's perception of their actions. I also believe that inattention to this broader racial context inhibits our ability to explore what it means to "represent race" in ways that avoid the duality of "sellouts" and "race cards." What follows, therefore, is more about scope, emphasis, and tone, than critique.

I believe that in order to reach a comprehensive understanding of what it means to "represent race," either in the Simpson case or generally, we must take up an aspect of the problem that Russell expressly sets aside: the merits.(9) By "merits," I mean both the strengths and weaknesses of the case against Simpson, and the legitimate professional obligations that Darden and Cochran assumed by virtue of their respective roles as prosecutor and defense lawyer. Black lawyers do not simply, because they are black, "represent race." As lawyers, they also represent clients and the goals and values of the legal system as a whole. If we are, in Professor Russell's telling words, to treat black lawyers "not as racial icons, but as real-life, three-dimensional human beings,"(10) we must take these professional obligations seriously when discussing the extent to which African-American lawyers can or should "represent race."

In the balance of this Comment, I suggest how Russell's decision to set aside the merits of Darden's and Cochran's arguments clouds her analysis of both the Darden Dilemma and the Cochran Conundrum. I begin, however, by exploring why placing too much emphasis on what Russell refers to as the "master narrative"(11) of race runs the risk of reinforcing the very essentialism that Russell rightly notes has been too often the bane of the black bar.

1. Why the Merits Matter

   Russell accurately depicts the many obstacles facing black lawyers. These barriers should not be minimized. The small number of blacks in the profession, particularly in the upper echelons, assures that African-American lawyers will confront daily all of the problems associated with being a token: heightened visibility and a corresponding pressure to perform (including pressure to be a "role model" for other black lawyers), isolation from formal and informal networks of power, and pressures to assimilate to prevailing norms.(12) At the same time, study after study confirms that race bias continues to infect virtually every aspect of the American legal system.(13)

   This bias doubly affects black lawyers. First, as Russell emphasizes, there are the long-term debilitating consequences of the constant barrage of insults, slights, and innuendoes that disparage black lawyers' professional standing and competence.(14) Equally, if not more important, however, is the effect that racial bias in the legal system has on the welfare (and therefore on the choices) of clients. Black clients, who bear the brunt of the legal system's racism, may find it more difficult to secure justice if they hire a black lawyer. White clients may also be less likely to engage the services of a black lawyer if they are concerned that he or she will not be taken seriously by other important actors in the system.

   Nevertheless, it is a mistake to assume that race completely dominates the professional lives of black lawyers. Russell asserts that "[a]ttorneys of color often find that they are identified, categorized, and evaluated first as members of their racial group, and only secondarily as lawyers."(15) As a descriptive matter, this statement overstates the effect of race in the lives of most black lawyers. The majority of black lawyers today practice as their predecessors did a generation ago: in solo practice or in small minority firms representing predominately black clients.(16) Racism undoubtedly helps to confine these lawyers to the lower echelons of the bar. Nevertheless, it seems likely that in their daily interactions with clients -- and, more important, in their understanding of themselves -- these black women and men view their professional identity as lawyers as being at least as important as their racial identity.

   Even blacks who practice in more rarefied climates should not forget that, despite all of the debilitating insults and slights,(17) their professional status still carries considerable weight. Most of the time, the bailiff shows the lawyer to the counsel table; the receptionist takes the lawyer's coat and asks if she wants a cup of coffee; the paralegal stays up all night to finish the memo; the cab stops; and the shop door is buzzed open.(18) More important, when these courtesies are not accorded, black lawyers frequently have the ability to take corrective action, to impose their professional status on an admittedly recalcitrant world.

   The point here is not to minimize the degrading, long-term effects of not being accorded the normal privileges of professional standing. However, failing to acknowledge the degree to which a black lawyer's professional status acts as a partial buffer against many of the most pernicious effects of racism also has its costs. To assert as a factual matter that race is the dominant feature in the lives of black lawyers is to run the risk of equating the difficulties of black middle class status with the far more pressing problems faced by poor blacks.(19)

   Normatively, positing race as the dominant feature of a black lawyer's identity is even more troubling. Black lawyers are lawyers regardless of whether white America always is prepared to accept them as such. This professional status carries with it unique duties and responsibilities. Lawyers, for example, are obligated to keep client confidences in circumstances where ordinary citizens might have a moral (or even a legal) duty to disclose.(20) When a lawyer agrees to represent a client, she is ethically obligated to defend her client's interests zealously within the bounds of the law.(21) A lawyer also has obligations to preserve and enhance the legal framework that are different from -- and arguably more capacious than -- the duties of ordinary citizens.(22)

   These duties carry moral weight. Like every other person who decides to become a lawyer, a black man or woman entering the legal profession voluntarily agrees to abide by the rules of legal ethics.(23) The moral force of this voluntary commitment is reinforced by the fact that other participants in the system -- judges, opposing lawyers, and, most of all, clients -- reasonably rely on black lawyers (as they rely on all lawyers) to abide by these professional commitments. The legal system could not function if it were otherwise.

   These professional obligations are not rendered irrelevant by racism. To imply that racism negates the moral force of a black lawyer's assumption of professional obligations is to deny these women and men the very moral agency that the civil rights movement rightly insists is their inalienable due. Nor is the American justice system so riddled with racism that lawyers are excused from what would otherwise be legitimate role obligations. Many would contend that lawyers in Nazi Germany or apartheid South Africa had no moral obligation to honor the professional norms of these racist regimes; indeed, they may have had an affirmative obligation to resist. Notwithstanding its many problems, however, the United States is not such a regime.(24) To be sure, the law has imposed substantial burdens on African Americans.(25) It has also provided important benefits, ones that have made possible the partial flourishing of blacks in the United States.

   As a result, although Russell may be correct that every case that a black lawyer takes on is "at some level a `race case,'"(26) it is also necessarily a professional case. Therefore, black lawyers cannot, as Russell suggests, dispense with "the norms of mainstream legal practice" in favor of "community-based reflection" when deciding how to respond to ethical situations such as those that confronted Darden and Cochran.(27) The legal profession's "mainstream" norms carry moral, not just practical, weight. They therefore constitute a legitimate constraint on how a black lawyer should...