April 29, 2024

Racial Reconciliation and Civil Rights -Ethical Duties

2023 Annual Forum Coverage

Adapted from presentation materials from the panelists


The presentation acquainted the legal practitioner with the history of civil rights law, current statutory tools and case law to enforce laws against all forms of unlawful discrimination. The seminar focused on jury abuse in Virginia and explored legal and ethical considerations in jury selection. The panelists discussed four specific areas: 1.) the status of the law before and after the Dred Scott v. Sandford, 60 U.S. 393 (1857), decision and the history of Jim Crow laws intended to suppress voting rights and preclude African Americans from sitting on juries; 2.) key pieces of civil rights legislation, case law and enforcement; 3.) Jury abuse, voir dire and practical suggestions for lawyers in dealing with “pretextual” explanations to prevent abuse of peremptory strikes; and 4.) current ethical proposals and enactments to preclude jury abuse and unlawful discrimination in the legal profession.

The panel was moderated by Courtney M. Frazier, Esquire, Annual Forum Co-Chair, Virginia State Bar Diversity Conference, Client Legal Services, Allstate Insurance. On the panel were The Honorable Doris Henderson Causey, Virginia Court of Appeals, Mark Cummings, Founding Partner, Sher, Cummings and Ellis, LLC, Arlington, VA, and Lynne Jackson, Founder and President, Dred Scott Heritage Foundation.

  1. Duty to Zealously Represent Your Client

    The ABA Model Rules establishes a duty to zealously represent clients and diligently advocate for their interests. The Virginia Rules of Professional Conduct Rule 1.3 (a) reads, “A lawyer shall act with reasonable diligence and promptness in representing a client.” and Rule 1.3 (c) reads, “A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3. This Rule can help ensure unlawful discrimination is absent from representation. By advocating with zeal, attorneys must work to erase unlawful discrimination in their own practice and as it impacts their clients.

    Additionally, the Virginia Rules of Professional Conduct Rule 1.1 on competence also provides an ethical layer to representing without unlawful discrimination and in the face of unlawful discrimination. It reads. “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

  2. Duty to Donate Legal Services–Pro Bono Guidelines

    Ethical rules setting goals for pro bono work can also play a part in eradicating discrimination in providing legal services. Many States and the ABA have guidelines for the minimum amount of pro bono work that should be done per year. Pro bono work increases access to justice and when attorneys commit to doing their part, they help erase inequities in legal representation. As Powell mentioned earlier suggests, a lack of legal representation makes one vulnerable to unlawful discrimination both inside and outside the legal system. When more people have more access to legal assistance, justice is more honest and fair, and unlawful discrimination is harder to conduct.

    The Virginia Rules of Professional Conduct, Rule 6.1 on Voluntary Pro Bono Publico Service reads:

    A lawyer should render at least two percent per year of the lawyer’s professional time to pro bono publico legal services. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase the availability of pro bono legal services.

    1. A law firm or other group of lawyers may satisfy their responsibility collectively under this Rule.
    2. Direct financial support of programs that provide direct delivery of legal services to meet the needs described in (a) above is an alternative method for fulfilling a lawyer’s responsibility under this Rule.

    The Rule has 3 parts as follows:

    1. A lawyer should render at least two percent per year of the lawyer’s professional time to pro bono publico legal services. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase the availability of pro bono legal services.
    2. A law firm or other group of lawyers may satisfy their responsibility collectively under this Rule.
    3. Direct financial support of programs that provide direct delivery of legal services to meet the needs described in (a) above is an alternative method for fulfilling a lawyer’s responsibility under this Rule.)

    Relevant Comments following the Rule provides, in part:

    Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer…. Pro bono legal services consist of any professional services for which the lawyer would ordinarily be compensated, including dispute resolution as a mediator or third party neutral.

    [3] Pro bono publico legal services in civil rights law consists of free or nominal fee professional services to assert or protect rights of individuals in which society has an interest. Professional services for victims of discrimination based on race, sex, age or handicap would be typical examples of “civil rights law,” provided the free or nominal fee nature of any such legal work is established in advance.

  3. Discrimination in the Practice of Law- Jury Selecting

    Proposed Ethics Solution – ABA Model Rule 8.4(g) – Misconduct reads, in relevant part:

    “It is professional misconduct for a lawyer to: …(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”

    A recent article proposes that an attorney’s ethical duties, outlined in the ABA Model Ethics Rules—particularly Rule 8.4(g)—can be used to prevent unlawful discriminatory or exclusionary behavior during jury selection and ensure that there is a reasonable accountability mechanism for attorneys who engage in such practices. See Anna Offit, Playing by the Rule: How ABA Model Rule 8.4(g) Can Regulate Jury Exclusion, 89 FORDHAM L. REV. 1257 (2021). (ABA Model Rule 8.4(g) was not adopted by Virginia and does not appear in the Virginia Rules.)

  4. Discrimination in Employment

    Many jurisdictions also impose explicit ethical duties to avoid discrimination in their own employment practices at law firms and other legal organizations.

    For example, the D.C. Bar Rules of Professional Conduct Rule 9.1 on Discrimination in Employment states, “A lawyer shall not discriminate against any individual in conditions of employment because of the individual’s race, color, religion, national origin, sex, age, marital status, sexual orientation, family responsibility, or physical handicap.” The Virginia Rules of Professional Conduct does not have an equivalent rule.

    A comment to D.C. Rule 9.1 provides “This provision is modeled after the D.C. Human Rights Act, D.C. Code § 2-1402.11 (2001), though in some respects is more limited in scope. There are also provisions of federal law that contain certain prohibitions on discrimination in employment. The Rule is not intended to create ethical obligations that exceed those imposed on a lawyer by applicable law.”

    These kinds of ethical rules would require lawyers to practice what they preach and ensure that unlawful discrimination in employment in the legal field is prohibited and ensure that lawyers recognize the obligations imposed already by applicable laws.

  5. Virginia Code of Professional Conduct, Rule 4:1

    Rule 4:1, imposes a duty of honesty on attorneys:

    In the course of representing a client a lawyer shall not knowingly:

    1. make a false statement of fact or law; or
    2. fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

    Discriminatory peremptory strikes and misleading justifications would arguably violate this Rule.

Conclusion

Throughout the nation’s history, there has been an ongoing effort towards racial reconciliation. Progress has been unsteady and work is still needed going forward. We can take comfort in the efforts of legendary civil rights advocates before and among us that inspire our collective effort towards achieving racial reconciliation. The ethical rules can be our guides stones as we move forward. It is incumbent on legal practitioners to address hate crimes, color of law violations, and other unlawful discriminatory practices as we navigate the judicial process. Much more needs to be done.