The benefits of a diverse population put the United States at a great advantage to the rest of the world in many areas. However, we seldom address the difficulties that this diversity brings and the cultural misunderstandings and manifestations of bias that are likely to occur. Given the painful history of how diverse populations have been treated in the United States, and the deficits created in every important area of life as a result, cultural misunderstandings and biases present significant problems in communication-based professions like lawyering. Unlike the medical and social work professions that have made cultural competence a cornerstone of professional education for a number of years, however, the legal profession has been much slower to recognize the importance of this skillset in legal education and the delivery of lawyer services.
Lawyer cultural competence can be understood as a set of behaviors, attitudes and policies that that enable a lawyer to work effectively in cross-cultural situations, especially in diverse systems, agencies and with other professionals.
Though not technically a requirement under most states' rules of conduct, professional rules on basic competence arguably compel culturally sensitive lawyering. For instance, Tennessee's Rule of Professional Responsibility Rule 1.1 explains that "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." In many instances, the knowledge, skill, thoroughness and preparation referred to in Rule 1.1 requires an understanding of cultural dynamics at play.
Culture shapes human behavior and understanding in countless ways that are relevant to the practice of law. For example, child discipline can significantly vary by culture. While some families practice discipline by separating the child from the environment or situation causing misbehavior, in others, spanking is customary. For family lawyers representing families in child custody cases, the lawyer must understand the family's disciplinary approach to explain that the parent's actions are in the "best interest of the child," which is central to child custody arrangements. Cultural competence is also necessary in many other areas, including having an understanding of norms and beliefs on "snitching" in criminal cases, whether clients view themselves as independent decision makers and client spiritual reliance in decision making.
Cultural competence is also important to the manner in which lawyers deliver legal services. Research suggests that implicit biases impact all individuals and attorney biases likely result in less favorable outcomes for racially and ethnically diverse clients. When lawyers and clients come from different backgrounds and cultural viewpoints, they are more likely to have a difficult time building trusting relationships, which can impede the sharing of honest and accurate information necessary for competent representation. When lawyers do not appreciate cultural influences, they risk misunderstanding objectives of the lawyer-client relationship or misrepresenting their client's perspective. When lawyers are unaware of how culture influences their clients' beliefs, behaviors, or values; they risk substituting their own judgment at critical points of the representation, such as during settlement negotiations. Even worse, lawyers who do not possess cultural competence skills risk alienating clients from the legal system altogether.
The need for cultural competence is also critical to interpersonal working relationships in legal organizations. Although achieving diversity goals still proves to be a challenge for legal environments, with only minimal improvements over the last two decades, legal employers can no longer afford to merely strive for a more diverse workplace. The American Bar Association regularly concedes that diverse attorneys are underrepresented in every area of the legal profession relative to the percentage of the general population. Equally important to acknowledge, however, is that women and individuals from minority groups report less job satisfaction in traditional legal environments and are more likely to leave the profession.
Without substantial gains in the number of diverse attorneys, the profession is unlikely to overcome these trends. In legal environments that truly value cultural competence, women and diverse lawyers have a better ability to build satisfactory relationships among colleagues, gain professional mentors, make meaningful contributions, hold leadership positions and are more likely to remain in the profession.
Moreover, among collegial relationships in legal environments, the lack of cross-cultural competence can obstruct the collaborative and inclusive environment necessary for effective representation in a competitive global legal market. As noted by the U.S. Supreme Court in Grutter v. Bollinger, "Major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints." Leaders of legal organizations that do not possess cultural competence are less likely to appreciate this reality to the detriment of clients and business markets.
Culturally competent lawyering is also important to maintaining integrity, fairness and consistency in the legal profession. When one in three Black men will be incarcerated at some point in their lifetime, it is impossible to disentangle the treatment of Black Americans in the criminal system from the broader inequities related to race and class. The COVID-19 crisis has additionally revealed profound systemic inequities that we all knew existed for minorities and low-income individuals in health care, education and business, but have yet to adequately address. Theoretically, at least, culturally competent lawyers are more likely to promote equitable legal policies and principals and better understand the impacts and processes of modern systemic injustice.
It has been 100 years since the 19th Amendment was ratified and nearly six decades since the Civil Rights Act of 1964. Nevertheless, we are just beginning the important conversation related to how individual demographics impact legal representation and professional relationships. Only recently have law schools become more intentional and institutionally responsible for promoting cultural competence in students despite the obvious and dire need for culturally competent contemporary lawyering practice. Many still have not done so.
Given this recency and institutional reluctance, law schools need the assistance of alumni, legal employers and other community partners to reinforce cultural competence as a valuable lawyering skill. We need to take cues from the medical and social work occupations by promoting a legal profession that expects cultural competence proficiency.