Lawyering While Black: Examining the Practice of Law through the Prism of the Black Experience

lawyering While Black: Examining the Practice of Law Through the Prism of the Black Experience T o understand what it means to “lawyer while Black,” you have to first appreciate the magnitude of what Black lawyers endure outside of their working environments. For many of us, that means watching the morning news while sipping coffee only to see that yet another Black person was unjustifiably killed by police. Or opening our social media accounts to see a video of Amy Cooper lying to the police about a Black man threatening her in Central Park. We repeatedly see Black people harassed and killed for participating in the most mundane, everyday activities. We watched as 12-year-old Tamir Rice was killed by police for playing with a toy gun. We watched as Eric Garner was choked to death for selling a loose cigarette. We watched as Botham Jean was killed for eating ice cream in his apartment. We watched as Rayshard Brooks was killed for sleeping in his car. We watched as Philando Castile was killed in front of his four-year-old daughter when he reached for his wallet. And we watched as Elijah McClain was killed while walking home because someone thought he looked suspicious. This dark pathology has perpetuated the complex and troubling historical dynamic between communities of color and the police (a dynamic that certainly has been amplified as of late).

The over-consumption of this racial violence over the past several weeks in particular has been challenging for us all. But Black lawyers have the added challenge of enduring the silent trauma of racism, while continuing to navigate our respective workspaces, fulfilling our billable hours with smiles on our faces.

Coping with racial trauma while balancing work responsibilities is just one illustration of the “lawyering while Black” experience (or LWB), a concept that illuminates both the personal difficulties experienced by Black attorneys (i.e., interactions with other attorneys, judges, and clients) and the way racism presents itself in the legal profession collectively (i.e., navigating the workspace, the courtroom, and social spaces).

We asked other Black lawyers in Houston about their LWB experiences. Here are a few examples of their responses:

“An opposing counsel called me ‘nigger’ after he lost a hearing.”1

“I was once told that the room I was sitting in needed more light because of how dark my skin was.”

“When I asked why I was not invited to play golf with the partners at my law firm, a colleague told me it was because they didn’t need a caddy.”

“A judge looked at me, in my suit, sitting at counsel table, and asked when the lawyer would arrive because the judge assumed that I was the legal assistant and not the lawyer.”

“A White coworker touched my hair without asking and then said it felt like cotton.”

“One time I was mistaken for the Defendant.”

“The court bailiff grabbed my arm when I walked into the courtroom ‘well’ after my case number was called, and (rudely) told me that the well was ‘for attorneys only.’ Neither he nor the judge apologized after I explained that I was an attorney and had a hearing.”

These examples only scratch the surface of what Black lawyers encounter in our profession. After we experience a microaggression or blatant racism, we typically have nowhere to turn, no one to talk to, and no one who understands the severity of what we just experienced. One isolated comment may not seem that severe, but Black lawyers rarely deal with only an isolated comment. We deal with repeated comments and actions that over time tear us down in a way our White counterparts will never experience.

Now that racism and workplace inclusion are getting more attention, many White people respond, “Well, I’m not racist so I’m not the problem.” But it’s not enough to not be racist, one must actively be antiracist. Although frequently conflated, nonracism and anti-racism are two completely distinct concepts.

Most people purport to be what is referred to as “non-racist,” which is the passive rejection of racial discrimination. Anti-racism, on the other hand, is a twopronged process that requires (1) identifying one’s individual and collective privilege and (2) engaging in the active process of identifying and eliminating racism by changing organizational structures and attitudes, so that power, representation, and accessibility to resources is redistributed and shared equitably.

Action is the key difference between being non-racist and being anti-racist. Within the legal profession, there are many ways attorneys can actively practice anti-racism and promote equality. This is known as allyship. Allyship has become increasingly important when discussing how to eliminate racism and inequality. Although there are a litany of social science journals, blogs, and online resources that generally discuss allyship, for the purposes of this article, we define allyship as the lifelong process of building relationships based on trust, consistency, and accountability with marginalized individuals and groups of people.

An ally is any person who actively promotes and aspires to advance the culture of inclusion through intentional, institutional allyship Institutional allyship is demonstrated when law firms change their governing corporate practices to reflect both inclusivity

‘‘ We deal with repeated comments and actions that over time tear us down in a way our White

and empathy toward the experiences of their colleagues of color.2 This type of culture shift is paramount to effectuate structural change, and can be promoted in the following ways: • Acknowledge racial inpositive, and conscious ef- counterparts will impact they may have on forts that benefit marginalized us. Law firm partners, communities as a whole. It is a never experience.” shareholders, and other practice that involves sacrifice workplace leaders should and often means having to be uncomfort- not be afraid to check in with Black colable. This leads to the question: How can leagues in the aftermath of these tragWhite attorneys practice allyship in our edies. Being oversaturated with racial profession? Since “lawyering while Black” trauma and violence informs our menis experienced at two levels, individual and tal and physical health. Acknowledging institutional, allyship, therefore, must be these events and their impact must come practiced at these two levels. from the top.

justice tragedies and the

• Recognize that racism is systemic and has historically been a part of many foundational aspects of law firms. Examples include nepotism in hiring practices and promoting only those attorneys

who you better identify with because of social and economic status. • Review unspoken policies and practices within institutions. This includes recognizing one’s own personal implicit biases against Black attorneys, such as passing judgment on how we dress, how we style our hair, how we speak, our names, and what neighborhood we grew up in. • Listen to the experiences of Black lawyers without feeling the need to challenge those experiences but with the goal of understanding and seeing the world through their eyes. • Commit to diversity initiatives by recognizing that “diversity” is more than a buzzword and implementing policies that actually make a difference. After the murder of George Floyd, there was an influx of postings on professional and social platforms from law firms and companies who pledged their commitments to diversity and inclusion initiatives. No one will disagree that law practice has historically suffered from a lack of diversity. But let’s be clear: “diversity and inclusion” is not a trend. In order to disrupt the traditional continuum of success in the legal profession, there must be a conversation about accountability methods for organizations to support Black lawyers’ success and construct a diversity and inclusion agenda that is actionable and measurable.

Review hiring and retention, ensure recruiting is done at diverse law schools, hire a neutral third party to vet your firm’s hiring practices, black out names on resumes before sending them to the hiring committee, review any retention issues, and have a zero-tolerance policy for racism.

individual allyship Allyship includes more than making changes to the way your firm operates. Your Black employees and coworkers need to know and trust that you are an ally on a personal level. The first step to becoming an ally is to understand the actions and phrases that are not helpful. Telling a Black lawyer that she is articulate or well-spoken implies that you expected her not to be. Telling a Black lawyer that you do not see color indicates you do not see the obstacles that Black lawyers face—if you cannot see the differences Black and White lawyers face, you cannot work toward inclusion. Telling Black lawyers they benefit from being Black because of the recent push for diversity in organizations shows that you are ignoring the burdens we have endured for the last 400 years.

With that being said, being an ally means saying something, even if you are not sure what to say or worried about saying the wrong thing. Too often Black lawyers face isolation from White colleagues because our White colleagues do not know what to say. If that is the case, then say so. Be honest that you are unsure about how to approach the subject but that you are here as an ally. Letting Black lawyers know you are there if they have an issue or concern is one of the best ways to be an ally.

Finally, while establishing sustained allyship practices within the legal profession is paramount, it is just as important to address how these allyship practices should also manifest before students even become attorneys. Understanding the education pipeline for Black students to law school and beyond deserves to be thoroughly addressed in its own separate article. For now, we briefly introduce this information to demonstrate that the LWB experience is often premised on (lack of) equitable practices related to the transition, enrollment, and retention in law school of underrepresented students.3

The remedy to these disparities is establishing diversity pipeline programs that focus on early academic intervention (i.e., engaging students in academically rigorous coursework to improve writing, reading, and critical thinking skills), developing strong mentor connections (i.e., connecting students with attorneys of color), and creating partnerships across pipeline programs (i.e., build working relationships with law firms and legal organizations). These community-based efforts can help minimize the financial, racial, and other stressors Black students face in their journey to get into law school, as well as provide support while enrolled in law school and after they graduate.

Though allyship can be synonymous with many things, the most important is education. Allyship is a learning journey, and education is key to understanding how oppressive systems operate. Condemning racism is easy, but being a true ally requires time and research. This means avoiding putting your Black colleagues and friends in the position of “teacher” regarding racial trauma and injustices, as doing so can be emotionally and spiritually burdensome. There are many resources available to help people better understand our experiences. We encourage you to use the following, along with the books outlined in the Anti-Racist Reading list on page 46 of this issue of The Houston Lawyer, 4 as a starting point on your learning journey.

anti-raCisM resourCes Guides • Anti-Racism for Beginners: • http://antiracismforbeginners.com/ • A Resource Guide for Anti-Racism +

Being An Educated Ally for BIPOC (Black,

Indigenous and People of Color): http://theglitterguide. com/2020/05/30/resource-guide-foranti-racism-being-an-educated-allyfor-poc/ documentaries & lectures • Get Comfortable with Being

Uncomfortable, Luvvie Ajayi (TED): https://www.ted.com/talks/luvvie_ ajayi_get_comfortable_with_being_ uncomfortable • How Studying Privilege Systems

Can Strengthen Compassion, Peggy

McIntosh (YOUTUBE): https:// www.youtube.com/watch?v=e-

BY9UEewHw&feature=youtu.be • I Am Not Your Negro (AMAZON

PRIME) • 13th (NETFLIX) Podcasts • How to Be an Ally Even When You Feel

Overwhelmed (DEAR WHITE WOMAN

PODCAST): www.dearwhitewomen.

com/episodes/how-to-be-an-ally-evenwhen-you-feel-overwhelmed • Leading with Empathy and Allyship Series (CHANGE CATALYST) https:// changecatalyst.co/allyshipseries/ • Seeing White (SCENE ON RADIO): https://www.sceneonradio.org/seeingwhite/ • How to be an Antiracist (BRENÉ

BROWN): https://brenebrown.com/ podcast/brene-with-ibram-x-kendi-onhow-to-be-an-antiracist/ • Code Switch (NPR): https://www.npr. org/podcasts/510312/codeswitch.

Anietie Akpan is in-house counsel for the Metropolitan Transit Authority of Harris County, Texas (METRO). She is also the Articles Editor of The Houston Lawyer. Mia Lorick is Shareholder and Director of Diversity and Inclusion for Roberts Markel Weinberg Butler Hailey PC.

endnotes

1. It is the policy of The Houston Lawyer not to print racial slurs, obscenities, or other offensive language. However,

the authors of this article requested that the full word be used, and the editors believed printing the offensive word was appropriate in the context of this particular article. 2. Though this article focuses on allyship in the context of race and race relations, the authors recognize that there should also be institutional allyship practices established related to the experiences of women, people with disabilities, and other underrepresented and marginalized communities. 3. Over the past several years, there has been substantial literature on racial disparities in bar passage rates, tuition debt, employment rates, and LSAT scores.

See, e.g., Michelle J.

Anderson, Legal Education Reform, Diversity and Access to Justice, 61

RUTGERS L. REV. 1011 (2009); Nareissa

Smith, Factors Affecting

Bar Passage Among Law

Students: The Real Connection Between Race and Bar Passage, AFR.-

AM. ATT’Y NETWORK (May 15, 2018), https:// aaattorneynetwork. com/factors-affectingbar-passage-amonglaw-students-the-realconnection-betweenrace-and-bar-passage/;

Erin Thompson, Law

Schools Are Failing Students of Color, THE NA-

TION (June 5, 2018), 4. https://www.thenation.com/article/archive/law-schoolsfailing-students-color/; Melissa Heelan Stanzione, Law School Enrollment Up Overall, But Not for Minorities, BLOOMBERG LAW (Dec. 12, 2019, 2:23 p.m.), https:// news.bloomberglaw.com/us-law-week/law-schoolenrollment-up-overall-but-not-for-minorities. In addition to the excellent list of books in Christina Beeler’s Media Review, we recommend White Fragility: Why Is It So Hard for White People to Talk About Racism by Dr. Robin DiAngelo and Tears We Cannot Stop: A Sermon to White America by Michael Eric Dyson.

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