May 6, 2019
Understanding Diversity: The Changing Realities and Considerations in the Practice of Law in the Commonwealth of Virginia
BY: Chris Fortier
Coverage of the 2018 Forum on Diversity and Inclusion in the Legal Profession
Does
your client know the difference between “not guilty” and “no contest”?
Your client needs to know that difference, and they may come from a
culture where the two terms mean the same concept. As Virginia has
become home to immigrants from all over the world, our legal system is
adjusting to different interpretations of the law, different cultural
patterns, and a better understanding of how its citizens understand and
access justice. In order to provide due process, lawyers and judges have
a duty to explain the basics to, respectively, their clients and
unrepresented litigants.
The
first panel at the forum examined the changing demographics of Virginia
and how attorneys need to adapt their practices to meet clients’ needs.
Judge Manuel Capsalis moderated the program while the panelists
consisted of Frank Thomas, Esq. of Orange County, Buta Biberaj, Esq. of
Leesburg, and Doris Henderson Causey, Esq. of Richmond. The panel began
the program by defining diversity. They noted that lots of people have
struggled to define it, as it is an organic and evolving term.
The
panel explored how diversity factors into an attorney’s work. Client
needs have changed as the demographics have diversified. For instance,
Fairfax County has interpreters for 100 different languages. Ms. Biberaj
noted that as Loudoun County has diversified, an economic disparity has
appeared. Ms. Causey noted that the cost of elder care drives more
people below the poverty line. More refugees come to Legal Aid creating
the need to translate different languages and dialects. Mr. Thomas
observed that clients are more sophisticated about legal issues such as
immigration status or property laws.
The use of interpreters have risen over the past 20 years. However,
lawyers and court personnel should get a translator to the exact
dialect of the client’s language. For example, there are 32 dialects of
Spanish. Courts and attorneys need to make sure that clients understand
their rights because waiving them endangers those rights. Due process
challenges may arise out of interpreting the wrong dialect.
The
panel then explored if changing demographics makes attorneys rethink
representations of clients. Are there new legal needs that you were not
dealing with 20-25 years ago? Ms. Bierbaj noted that when “you are
mindful of implicit bias, you speak and listen differently. You have to
make more effort to bring out your client’s humanity as it is not
implied.” For example, some clients are assumed to be a member of
community, to come from a good family, and have a future. Other clients
will have to prove those assumptions for more favorable treatment.
Ms.
Causey noted that in legal aid, lawyers have to educate as these
clients can be women who come from cultures that do not grant women
rights, or immigrants who struggle to get out of a lease with a
manipulative landlord. These clients fear the manipulative landlord or
the abusive spouse. Ms. Causey noted that applicants see naturalization
applications as “outing” themselves, putting their existence in the
country at risk. They fear ICE and see people they know getting
deported.
The
discussion turned to the changing role of attorney with new
demographics. Ms. Bierbaj noted that clients will be deferential to
professionals due to the trust they gain through their status. The
lawyer serves a critical role as the legal and cultural bridge between
the court and the client. When asked how to properly represent these
clients, Ms. Bierbaj stated, “Clients must understand their role in the
process and what the process does to them (including immigration
consequences).” Mr. Thomas said, “Listen to the client and figure out
what they need. Start with no preconceptions and have humility.” Ms.
Causey advised, “figure out the client’s legal needs and build a plan
for those needs. State in the retainer what you are doing and translate
it through Google Translate.” Mr. Thomas noted that attorneys need to
explain the documents that the client signs in granular detail.
When in court, Ms. Bierbaj shared that the attorney has to “be comfortable with being uncomfortable.” Judge
Capsalis noted that “attorneys should use opening statements to educate
on the complexities of the case, especially cultural/ethnic issues that
may influence the case. Don’t forget the duty to your client (not to
everyone else in the room).” Other judges stated that attorneys should
raise cultural issues, as they may make the difference in the case.