Since 1989, the California Rules of Professional Conduct (CRPC) have included prohibitions against discriminatory behavior in the practice of law. (See former CRPC 2-400, “Prohibited Discriminatory Conduct in a Law Practice.”) In 2018, as part of the California State Bar’s overhaul of the CRPC, new CRPC 8.4.1 was promulgated, widening the scope of the anti-discrimination rule and providing “teeth” to its enforcement. CRPC 8.4.1 generally prohibits a lawyer from, among other things, unlawfully discriminating in relation to a law firm’s operations, in representing a client, and in terminating or refusing to accept the representation of a client.
CRPC 8.4.1 should deter discriminatory behavior by lawyers. However, proactive measures to improve diversity and promote awareness of implicit bias so that punitive rules like CRPC 8.4.1 become less necessary are just as, if not more, important. In 2020, the California Legislature enacted Cal. Bus. & Prof. Code section 6070.5, which directed the California State Bar to update the Minimum Continuing Legal Education (MCLE) requirements for lawyers to include “training on implicit bias and the promotion of bias-reducing strategies . . .” In 2021, the Bar increased its MCLE hours requirement for implicit bias from one hour to two hours.
Implicit bias is defined as “positive or negative associations that affect [all persons’] beliefs, attitudes, and actions towards other people.” AB 242 (legislative text). Studies show that while most of us can recognize implicit bias in others, we can’t see it in ourselves. For example, in 2014 a study was conducted in which 60 partners from 22 different law firms were given the same research memo from a hypothetical third year associate. The memo contained identical typographical and substantive errors. Half the partners were told that the associate was African American. The other half were told that the associate was white. On average, the memo purportedly written by the African American associate received a significantly lower score and more critical comments regarding writing ability. More of the planted errors were detected in the memo supposedly authored by the African American associate than the white associate’s memo. In short, the data confirmed the researchers’ hypothesis that “[t]here are commonly held racially-based perceptions about writing ability that unconsciously impact our ability to objectively evaluate a lawyer’s writing. Most of the perceptions uncovered in research thus far indicate that commonly held perceptions are biased against African Americans and in favor of Caucasians.” In other words, “[w]e see more errors when we expect to see errors, and we see fewer errors when we do not expect to see errors.” See, Written in Black and White, “Exploring Confirmation Bias in Racialized Perceptions of Writing,” Dr. Arin Reeves, lead researcher. https://diversity.missouristate.edu/assets/diversityconference/14468226472014040114WritteninBlackandWhiteYPS.pdf
This study and others teach that implicit bias training should not be viewed as simply an MCLE requirement to fulfill. Rather, it should be a launching pad for law firm management to implement policies designed to combat the effects of implicit bias. That effort begins and ends with a consistent commitment to fostering a culture of awareness and inclusion. A number of resources and toolkits are available from the American Bar Association and the California State Bar. See, https://www.americanbar.org/groups/diversity/ and https://www.calbar.ca.gov/About-Us/Our-Mission/Promoting-Diversity-and-Inclusion. Finally, you can test your own level of implicit bias on a range of categories here: https://implicit.harvard.edu/implicit/takeatest.html.