Focus on Diversity: Why Diversity Must Matter to the Bar Admissions Community

By Hon. Phyllis D. Thompson,1

Associate Judge on the District of Columbia Court of Appeals

(This article originally appeared in The Bar Examiner print edition, Fall 2020 (Vol. 89, No. 1), pp. 65–67, as part of a column featuring a series of articles on topics of immediate significance to the bar admissions community Reprinted with permission from The Bar Examiner by the TCBA) 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

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

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 accessto-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 wellbeing 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.