Part Three: Implicit Biases of Attorneys in Civil Litigation

A. The Negligence Standard

The ABA Model Rules of Professional Conduct define as misconduct when a lawyer “reasonably should know” she is discriminating on the grounds of race, gender, ethnicity, religion, and other categories, or when such actions are prejudicial to the administration of justice. The word “reasonably” invokes a negligence standard. When should an attorney reasonably know that her conduct is discriminatory? Do the implicit bias studies make it reasonable for attorneys to know that their conduct may be discriminating on the basis of race, ethnicity, or other prohibited categories? IAT research suggests that the answer is yes. Because we know implicit biases exist, there can be a finding of a prima facie “claim against any facile claim of colorblindness.”

The ABA model rule applies broadly to “conduct related to the practice of law,” and therefore can apply to how lawyers represent their clients, including which strategies they pursue and what evidence they present at trial. Strategies involve the attorneys' judgments about the facts of the case as well as the client's particular circumstances, and may be difficult to label as racially or ethnically discriminatory in an individual case. But, implicit bias in the application of certain strategies may violate the ABA rule against conduct that is “prejudicial to the administration of justice.” For instance, implicit bias that takes the form of “Black male as violent” stereotyping can be prejudicial to the administration of justice, particularly when it enhances the perceived dangerousness of a person based on race; and thereby justifies lethal force against that person or uses ambiguous evidence to support a finding of dangerousness or violent conduct.

California's Rules of Professional Conduct are arguably milder than the ABA model rule is for attorneys, requiring actual unlawfulness, or knowingly permitting such conduct when applied to the behavior of another attorney, or someone in the law office. As Professor Girvan notes: “Legal doctrine, however stagnated. It only recognizes and targets overt, explicit bias with the accompanied understanding that social desirability concerns might frequently prompt people to conceal it;” however, the Fourth Circuit case Woods v. Greenboro suggests some movement in this area. While acting on bias can constitute actionable discrimination, implicit bias generally is not seen as actionable because there is no purpose or intent motivating it. In addition, the California rule is limited to accepting and terminating client representation (as well as employment conditions not applicable to this article), and therefore would not implicate strategic decisions in the conduct of representation.

Next, this article examines some of the situations in which implicit biases can impact the attorney-client relationship and be prejudicial to the fair administration of justice. Attorneys “reasonably should know” about these various opportunities for implicit bias to result in differential treatment based on race, gender, ethnicity, and other protected classifications.

B. Implicit Bias in Communication

Communication is often influenced by implicit bias. Clients may be hesitant to communicate based on their own culture, the lawyer's culture, or either's perceptions. “Cultural differences often cause us to attribute different meaning to the same set of facts,” as law professors found in a course on cultural competence. They explain:

[E]ven in situations in which trust is established, students may experience cultural differences that significantly interfere with Lawyers' and clients' capacities to understand one another's goals, behaviors, and communications .... One important goal of cross-cultural training is to help students make isomorphic attributions, i.e., to attribute to behavior and communications that which is intended by the actor or speaker. Students were taught about the potential for misattribution [so they] can develop strategies for checking themselves and their interpretations.

For instance, consider when a lawyer asks a client to speak up if the client wants the lawyer to explain something she does not understand or if the lawyer is not being clear, cultural barriers may preclude the client from responding truthfully. This instruction, while seeming appropriate on its face, does not necessarily take into consideration that in some cultures, it would be considered rude to suggest the lawyer is not being clear, and in others, it would be considered embarrassing to admit one does not understand. If the client is from such a culture where it is disrespectful to imply that someone in a position of power is being unclear, she does not ask for an explanation; and when asked if she understands, she answers affirmatively. But she does not understand. Later, the lawyer may ask why the client is not going along with the strategy, not realizing that the client did not understand enough to participate in the strategy in the first place.

C. Credibility Assessments that Rely on Implicit Biases

On the issue of substantive credibility (whether we believe the story to be true), we are more likely to believe stories that make sense to us and less likely to believe those that do not make sense. Consider a case where a defendant's photo identification card is found at the scene of a crime. For those of us who carry our identification cards with us every day, it does not make sense that the card would end up at a place and time that we are not (unless we assert that the identification card was stolen). For those who do not carry an identification card each day and instead keep it in a drawer somewhere, the card could end up someplace else or be left somewhere for days without the defendant noticing. Those who carry identification cards are less likely to find the second story credible, though it may very well be true.

Similarly, cultural differences can impact the process of evaluating credibility (whether we believe the storyteller to be credible). For instance, there are people who tell stories in nonlinear ways. Some cultures have different orientations about time and space and “[l]awyers and clients who have different time and space orientations may have difficulty understanding and believing each other.” What will seem to an attorney to be lying or uncooperative, may be the respectful or appropriate way to provide context and background for the story in the client's culture. It is important to be cognizant of the difference between having an individualistic culture where “people are socialized to have individual goals and are praised for achieving those goals,” as opposed to a collective culture where:

[P]eople are socialized to think in terms of the group, to work for the betterment of the group, and to integrate individual and group goals. Collectivists use group membership to predict behavior. Because collectivists are accepted for who they are and accordingly feel less need to talk, silence plays a more important role in their communication style.

Those silences and apparent meanderings will be interpreted by some as meaning the storyteller is less credible. This interpretation likely applies to the attorney who is deciding how to represent the client, as well as to the judges and jurors who ultimately determine what testimony to believe.

D. Representation Strategies Developed by Implicit Bias

Cultural competence has an impact on attorneys' strategies for representing their clients. A strategy that seems to be the best one from the attorney's perspective may be rejected by the client based on the cultural meaning of such an admission. For instance, in a tort case involving the plaintiff's own potential negligence, an attorney may want to pursue a strategy that shows the plaintiff did not understand a written warning that was not verbally explained. In the plaintiff's culture, failure to understand could be a sign of lack of intelligence; and if intelligence and ability to read are highly prized in that culture, the client may be unwilling to advance that argument, even though doing so may be the most effective argument for the case. In fact, the argument might be particularly effective when jurors may apply the “unintelligent Black people” stereotype prevalent in the American media, even though the plaintiff's culture is Nigerian, where education is highly prized. “Availability bias” plays a role here, which operates when people base their assessment of how likely a particular fact is to be true on how quickly or clearly they can recall examples of that fact being true. If the attorney knows a lot of educated Black people, that adjective-noun pairing makes sense and is more acceptable. If she does not know many educated Black women, then that pairing in unlikely in her mind.

Implicit bias studies show that people routinely discount the amount of pain they perceive another is feeling if that person has a darker complexion than they have. In personal injury cases, attorneys may therefore discount the amount of pain they attribute to Black clients seeking damages, while being more realistic, or even augmenting, the amount of pain they attribute to their white clients. Of course, the attorneys are not solely responsible for the valuation because they may have doctors or other expert witnesses provide an assessment of the pain levels. These experts may also be influenced by implicit bias, availability bias, confirmation bias, and others. Nevertheless, the valuation has an impact on case strategy and, for contingency fee cases, similar to the public defender triage situations described in part two above, on the amount of time and other resources to be devoted to the case.

When entering a contract, some people rely upon a handshake deal and others require a written agreement. In examining what is “reasonable reliance” or what constitutes an “offer and acceptance,” different cultures may have different assessments. Attorneys who are not mindful of these differences might decline to accept what could be a winning case.

In employment discrimination and wrongful termination litigation, stereotypes about certain groups being uneducated, unintelligent or untrustworthy can impact the attorney's assessment of the strength of the claim or defense.

E. Promoting the Fair Administration of Justice

There are many contexts in which cultural understanding enhances the attorney-client relationship and promotes the fair administration of justice. Conversely, a lack of cultural understanding undermines the attorney-client relationship, as well as the fair administration of justice.

Given the depth of research, Continuing Legal Education (CLE) courses, and other resources on the existence and implications of implicit bias, attorneys “reasonably should know” they may be acting in ways “prejudicial to the fair administration of justice” due to implicit biases. Attorneys who are not mindful of its potential impact in their representation may be discriminating in their “conduct related to the practice of law.” Given the Fourth Circuit's recent recognition that subtle stereotyping and implicit bias can give rise to legitimate discrimination claims, attorneys should abide by the ABA proposed Model Rule 8.4 and make special efforts to reduce the impact of implicit bias in the practice of law. The next section identifies specific strategies to implement this rule.