Increasing Diversity Calls for Professional Change

By Barbara N. Flores

On April 3, 2017, the Illinois Supreme Court amended Rule 794(d) affecting the professional responsibility requirement for attorneys.  Before April 3rd, the professional responsibility requirement could be met by completing the required hours in a number of areas: professionalism, diversity issues, mental illness and addiction issues, civility, or legal ethics.  Post April 3rd, this requirement has changed.  Attorneys must now complete one mandatory hour of CLE credit dedicated to the study of diversity and inclusion issues, as well as one additional hour devoted to issues surrounding mental health and substance abuse.  These additional two hours may easily go unnoticed in the sweep of our general CLE obligations as a whole, but they represent small, yet significant, steps toward a larger modernization of our educational focus as a profession.

One key purpose of these two hours is training for a greater awareness of “diversity and inclusion” in our courtrooms.  The Illinois Supreme Court Commission on Professionalism will likely provide more in-depth guidance closer to the effective date of the rule changes, but the Commission already maintains information on its website[1] about diversity education and its benefits.  The Commission notes that the Court is concerned about the lack of diversity in the profession and its impact on the justice system.  The Court recognizes that diversity education encourages the legal community to explore all manner of prejudice or bias and, in turn, encourages behavioral and professional change through personal reflection of potential bias.  As a practical matter, our proficiency as officers of the court comes not only from our substantive legal knowledge, but also from awareness of the spectrum of our potential biases relative to ethnicity, gender, race, and LGBTQ orientation issues, among others.  The legal community as a whole is capable of divesting itself of these biases and, indeed, maintains an obligation to do so as part of our profession’s continual mandate to provide the most effective representation to the public as officers of the court.

To take an example, modern witnesses testify in foreign languages to such an extent that the Administrative Office of the Illinois Courts’s (AOIC) Civil Justice Division now oversees the creation and implementation of Language Access Plans[2].  If approved by the Illinois Supreme Court, these plans serve Limited English Proficient individuals in each of the state’s 24 judicial circuits.  This massive undertaking is an example of an effective response to a clear public need created by increasing diversity.  Yet, even with these programs in place, there are complications of which we must be aware to avoid inadequate representation.  When an interpreter is employed in the courtroom to navigate the course of a legal dispute, it puts an increased onus on all participants in a trial to ensure that non-native English speakers are understood to the same extent as native English speakers.  Indeed, failure to do so may result in failure to preserve a record for appeal.  All parties participating in such an exchange must be prepared for the reality that the exchange of information will necessarily be slower, and that the proceedings may be lengthened for the judge, jury, counsel, and witnesses.  In this example, we see how an existing program already addresses diversity, but we also see how much additional thought, effort, cooperation, and patience is nonetheless necessary to allow for full inclusion.  This is a very limited example and barely touches upon the complexity and difficulty which our profession faces, but it hints at how much we must continue to address given the increasing diversity in the communities that we serve.

It is not only our public, but also our profession that is becoming more diverse.  The American Bar Association’s Law School Matriculant Data for the Fall of 2016[3] illustrates these trends.  Over 37,000 students entered law schools across the country last September.  Of those, 51.3% (19,032) were women compared to 48.7% (18,057) men.  Approximately 32% (11,880) of the incoming class members were minorities with 18.7% (6,941) being women minorities and 13.3% (4,934) male minorities.  In this sense, the subject matter of diversity and inclusion is not limited to clients; it is an essential part of effectively working with judges, opposing counsel, court personnel, and legal support staff.

The service that we perform as lawyers and judges requires that we be thoughtful and equally accommodating of all.  Lawyers are trained to learn, and the best lawyers know how to listen.  In learning about ourselves and others, and by listening to the individuals with whom we interact every day, we truly serve and do our best work.  Effective July 1, 2017, the efforts undertaken by so many to promote diversity and inclusion—efforts which have been undoubtedly undertaken by many of this very readership—will be looked upon to guide the profession into a future where diversity is an everyday facet of our practice, from the public we serve to our profession itself.

Barbara N. Flores is an Arbitrator at the Illinois Workers’ Compensation Commission since 2011.  Her prior years of practice focused mainly in the area of labor and employment.  Ms. Flores currently serves as Chair of the CLE and Scholarship Committees of the Diversity Scholarship Foundation.  She is also a Trustee of the Hispanic Lawyers Scholarship Fund of Illinois.  Ms. Flores is fluent in Spanish, and licensed to practice law in Illinois and New York.