This article originally appeared in The Bar Examiner print edition, Fall 2020 (Vol. 89, No. 1), pp. 65–67.
Welcome to a new column featuring a series of articles on topics of immediate significance to the bar admissions community.
We begin by focusing on the topic of diversity in the legal profession and efforts to enhance the participation and success of underrepresented and/or historically disadvantaged groups in legal education and bar admissions.
For this inaugural column, Judge Phyllis D. Thompson, Associate Judge on the District of Columbia Court of Appeals, writes about why diversity must matter to the bar admissions community.
By Hon. Phyllis D. Thompson1Why Diversity Must Matter to the Bar Admissions Community
A couple of years ago at an NCBE Annual Bar Admissions Conference, I had a conversation with one of my fellow attendees who, like me, had just heard a presentation about the underrepresentation of minority groups in the legal profession. I commented that the numbers indicated that we hadn’t made much progress toward a racially and ethnically diverse legal profession. My fellow attendee, a bar examiner, agreed with my assessment but also questioned the need for bar examiners to be concerned about racial, ethnic, or other types of diversity among lawyers. I thought that was a fair question. In this article, I offer four key points to convey what I think are some of the answers.
1. Diversity in the legal profession is critical to public trust and confidence in the legal system that bar admission authorities serve.
The bar admissions community—both state bar admission authorities and NCBE in its role of providing services to those authorities—exists to support and assist the states’ highest courts in carrying out their goals and responsibilities with respect to regulating the legal profession within their jurisdictions. It is therefore important to recognize that, through the Conference of Chief Justices (CCJ),2 the states’ highest courts have adopted a number of resolutions that highlight and explain the importance of diversity in the legal profession.
For example, in 2020, the CCJ expressed its encouragement and support of efforts “to improve the racial and ethnic diversity of the bench, law clerks, and court staff, as well as the legal community.”3 In 2012, the CCJ resolved that “the court system should be representative of the diverse community that it serves” (focusing on disability diversity).4 In 2009, the CCJ explained more fully that courts “should better mirror the racial and ethnic make-up of the communities they serve” in order to foster “confidence in the courts and the judicial process.”5
Conversely, as one writer has observed, “[t]he very legitimacy of a legal system is challenged” when it “features systematic under-representation of minorities who are expected to buy into and respect the law[,]”6 but who perceive that the system is not fair and equal. To state the point differently, “[w]ithout a diverse bench and bar, the rule of law is weakened as the people see and come to distrust their exclusion from the mechanisms of justice.”7
These comments implicate not just judicial officers, but members of the legal profession more broadly, because members of the bar function as officers of the courts, who assist in the administration of justice. Fostering a more diverse legal profession—one that in turn will produce a judiciary and bar that look like the communities they serve—is a critical part of building and maintaining public trust and confidence in the legal system.
Accordingly, diversity in the legal profession must be a priority, and it is the responsibility of the bar admissions community to make constant efforts to ensure that all aspects of the bar admissions process are fair, to be on guard against impediments to entry into the legal profession that may exist on a basis related to race or ethnicity, and to work to advance greater inclusion of underrepresented groups in the profession.
2. Diversity in the legal profession is critical for access to justice.
The CCJ has also affirmed that “the Judicial Branch has the primary leadership responsibility to ensure access” to justice for individuals and families.8 As one writer has aptly observed, diversity in the legal profession “is intimately related to access to lawyers and justice and to the quality of representation of the under-privileged.”9
This is not to suggest that only lawyers who are from underrepresented groups can or will represent others who are from underrepresented groups or are the only ones who can do so effectively; all lawyers, whether or not they come from historically underrepresented groups themselves, can and should learn to be culturally competent (meaning, in part, sensitive to potential differences between people from different backgrounds).
But to the extent that a background of shared experiences, perspectives, or language enables lawyers to better communicate with their clients, to understand better the clients’ circumstances and goals, to gain the trust of and inspire confidence in clients, and to empathize with clients, both the availability and quality of legal representation and the efficacy of legal problem solving are likely to improve. For that reason, too, states’ highest courts should require their bar admissions arms to promote a diverse legal profession that will assist the courts in carrying out their responsibility to lead access-to-justice efforts.
3. Diversity in the legal profession is a critical component of bar admission authorities’ mission of protecting the public.
Protection of the public is the raison d’être of bar admission authorities. They administer the bar examination to ensure that lawyers have the minimum competence necessary to practice as licensed attorneys, and they conduct background checks to ensure that newly licensed lawyers will be fit, including mentally and emotionally fit, to be trusted with client matters.
As the CCJ has recognized, lawyers’ continued competence and fitness to practice law is in part a function of lawyer well-being. In a 2017 resolution, for instance, the CCJ recommended that the states’ highest courts heed the report of the National Task Force on Lawyer Well-Being.10 That task force report explains that “well-being is an indispensable part of a lawyer’s duty of competence”11 and that a significant contributor to lawyer well-being is “a sense of organizational belongingness.”12
The task force report goes on to state that a lack of diversity among lawyer colleagues and the corresponding “weak sense of belonging” is “strongly associated with depressive symptoms,” which can interfere with the lawyers’ ability to practice law responsibly and ethically.13
In a very real sense, then, fostering diversity in the legal profession is a tool toward fostering the lawyer well-being that can be critical for protection of clients.
4. Diversity is a core value of the legal profession.
Entrants to the legal profession take an oath to uphold the Constitution, including its guarantee of equal protection of the laws. To the extent that the relative lack of diversity in the legal profession reflects past discrimination and bias—that is, reflects the unequal protection of the laws—the bar admissions community, which effectively acts as a gatekeeper to the profession, has to be attentive to and concerned about what the data show.
We must be concerned, for example, if factors that may be the vestiges of discrimination and historical unequal protection of the laws—such as large disparities in family wealth or opportunity—impact the ability of law graduates to devote the time they need to study for the bar exam, adversely affect performance on standardized tests, or impede individuals from even envisioning themselves as members of the legal profession. To fail to make efforts to promote diversity among entrants into the legal profession is to ignore a fundamental value of the profession whose integrity is the entire rationale for the work that the bar admissions community does.14
For all these reasons, I think it is fair to say that being concerned to advance racial, ethnic, and other types of diversity among lawyers is an essential part of the responsibilities of the bar admissions community.
Judge Phyllis D. Thompson has been an Associate Judge on the District of Columbia Court of Appeals since 2006. She was the first African American woman partner in the law firm of Covington & Burling LLP. Thompson is a member of the NCBE Board of Trustees and chairs its Diversity and Inclusion Committee. She is also a member of the Council of the ABA Section of Legal Education and Admissions to the Bar.
- The author acknowledges the input of the NCBE Diversity and Inclusion Committee in writing this article. The purpose of the Diversity and Inclusion Committee is to recommend policies and initiatives through which NCBE can enhance the participation and performance of historically disadvantaged groups with respect to legal education and bar admissions, including bar passage; to assist the Board of Trustees in remaining sensitive and responsive to diversity issues in the provision of programs and services; and to promote diversity of presenters and participants at NCBE educational programs and on NCBE’s committees, task forces, boards, and staff. (Go back)
- The Conference of Chief Justices includes representatives of the courts of all 50 states, the District of Columbia, and the nation’s territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and the US Virgin Islands). See https://ccj.ncsc.org/. (Go back)
- Conference of Chief Justices, Conference of State Court Administrators, Resolution 1, In Support of Racial Equity and Justice for All (2020), available at https://ccj.ncsc.org/__data/assets/pdf_file/0029/42869/07302020-Racial-Equality-and-Justice-for-All.pdf. (Go back)
- Conference of Chief Justices, Resolution 13, In Support of Disability Diversity in the Legal Profession (2012), available at https://ccj.ncsc.org/__data/assets/pdf_file/0015/23541/07252012-access-justice-disability-diversity-legal-profession.pdf. (Go back)
- Conference of Chief Justices, Resolution 6, In Support of Diversity of Judicial Law Clerks Working for State Court Judges (2009), available at https://ccj.ncsc.org/__data/assets/pdf_file/0015/23730/01282009-in-support-of-diversity-of-judicial-law-clerks-working-for-state-court-judges.pdf. (Go back)
- Eli Wald, “A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who Is Responsible for Pursuing Diversity and Why,” 24 Geo. J. Legal Ethics (Fall 2011) 1079, 1103 (hereafter “Wald”). (Go back)
- American Bar Association, Presidential Diversity Initiative, Diversity in the Legal Profession: The Next Steps (Apr. 2010) at 9. (Go back)
- Conference of Chief Justices, Conference of State Court Administrators, Resolution 5, Reaffirming the Commitment to Meaningful Access to Justice for All (2015), available at https://ccj.ncsc.org/__data/assets/pdf_file/0013/23602/07252015-reaffirming-commitment-meaningful-access-to-justice-for-all.pdf. (Go back)
- Wald, supra note 6, at 1102. (Go back)
- Conference of Chief Justices, Resolution 6, Recommending Consideration of the Report of the National Task Force on Lawyer Well-Being (2017) (stating that “supporting lawyer well-being … enhances lawyer ethics and professionalism”), available at https://ccj.ncsc.org/__data/assets/pdf_file/0023/23684/08092017-recommending-consideration-report-national-task-force-lawyer-well-being.pdf. (Go back)
- The Report of the National Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (2017), at 10, available at https://lawyerwellbeing.net/wp-content/uploads/2017/11/Lawyer-Wellbeing-Report.pdf. (See also James C. Coyle, “The Report of the National Task Force on Lawyer Well-Being and the Role of the Bar Admissions Community in the Lawyer Well-Being Movement,” 87(2) The Bar Examiner (Summer 2018) 8–16.) (Go back)
- Id. at 16. (Go back)
- Id. (recommending that “all stakeholders urgently prioritize diversity and inclusion”). (Go back)
- Professor Wald makes these points eloquently. He writes: “[T]o the extent that minority under-representation is caused by inequalities, past and structural discrimination, lack of diversity undermines the very meaning of law and of what it means to be a lawyer in the United States. … [A] definition of lawyers as professionals must inherently include a commitment to advancing equality under the law, and, therefore, to fighting under-representation and promoting diversity.” Wald, supra note 6, at 1101–02. Wald concludes that underrepresentation simply is “unacceptable in the legal profession.” Id. at 1142. (Go back)
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