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Barrier-Free: Access to Justice for Oregon's Newly Admitted Attorneys

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Barrier-Free: Access to Justice for Oregon's Newly Admitted Attorneys

Barrier-Free: Access to Justice for Oregon's Newly Admitted Attorneys

This three-credit course is designed to help Oregon newly-admitted attorneys meet their first year MCLE requirement. Each session is taught by faculty with a unique perspective and offers practical guidance for increasing access to justice for those in the legal profession, clients, and communities. They are: Session 1: LGBTQ Cultural Competency in Client Representation; Session 2: Diversity, Inclusion, and the Elimination of Bias in the Legal Profession; and Session 3: Creating Justice for All: Engaging in Pro Bono Representation. Please note that this three hour program contains two checkpoints total. There are not checkpoints within each individual course.

Presenters

Ashley Carter
Supervising Attorney
DC Volunteer Lawyers Project (DCVLP)
Cheyne Scott
Partner
Chasan Lamparello Mallon & Cappuzzo, PC
Colleen Quinn
Owner
Quinn Law Centers

Transcript

Cheyne Scott - Hello and welcome to Diversity Inclusion and the Elimination of Bias in the Legal Profession. My name is Cheyne Scott. I am a partner and the Chair of Diversity and Inclusion for the law firm of Chasan Lamparello Mallon & Cappuzzo located in Secaucus, New Jersey. I have been practicing law for nearly 10 years. And I have defended harassment and discrimination lawsuits, conducted numerous workplace investigations for harassment and discrimination, conducted disciplinary hearings arising out of disciplinary charges for harassment and discrimination. And I conduct anti-harassment, anti-discrimination, and anti-bias training.

So I've had a lot of experience with this topic from different angles, and I'm very excited to talk to you about them today. So let's talk about our objectives. Our objectives today are to define diversity and inclusion, to discuss relevant legal standards, to conduct an overview of pay inequity based on gender and race and the various reasons for those disparities, to help lawyers get a deeper understanding of the underlying unconscious biases that can lead to an unintentional disparate impact on diverse attorneys, discuss the importance of effective policies and training, and to discuss choices lawyers and law firm leaders can make to foster more diversity and inclusion in law firms so that they may recruit and retain diverse talent. So before we jump in, that's a lot, take a deep breath. It is very, very common to feel uncomfortable when discussing diversity, inclusion, and bias. Most of us don't talk about racism, and sexism, and homophobia, and these different topics on a regular basis. And it can be really uncomfortable to discuss them. So I say to you, if you feel any level of discomfort throughout my discussion of various cases and statistics and just the topic in general, that is 100% normal. I just want you to lean into the discomfort so that we can learn together.

So why is diversity important? 2019, there was a Harvard business review article that broke down why diversity is important to employers. First, it attracts talent. According to Glassdoor, 67% of job seekers look at workforce diversity when evaluating an offer. And PricewaterhouseCoopers's survey found that 61% of women look at gender diversity of employers, leadership team when deciding where to work. There's also evidence of diverse idea exchange. So diverse teams can develop more innovative ideas and lead to greater creativity. Also diverse leaders are more likely to have common experiences with their end user. And by end user, we often, in the legal profession, mean the client. So if you have clients in a certain demographic or a certain socioeconomic status, you may have someone who's diverse, who actually will relate and connect more easily with that client. And then finally, diversity signals competent management for investors. So many investors seek out diverse companies and may refuse to work with companies who do not have a diverse workforce. There are many fortune 500 companies that will not retain a law firm unless they are certain that the law firm has a commitment to diversity. And that not only means having people that are diverse working for the law firm, but actually having them engaged in substantive work with their particular case file.

So what is the difference between diversity and inclusion? Diversity is acceptance, respect, and understanding that each person is unique, particularly as it relates to race, gender, sexual orientation, age, physical attributes, level of ability, and religious beliefs. Inclusion is a sense of belonging, feeling respected, being part of a nurturing environment, and valued for who you are, feeling a level of supportive energy and commitment from others so that everyone can be their best selves. So inclusion goes beyond having a diverse composition of employees. It brings together the perspective and contributions of all members of the firm. There is this incorporation of the needs and viewpoints of diverse communities into all aspects of our processes. And it's not placing the responsibility of the "other" to fit in. Simply put, diversity is being invited to the party. Inclusion is being asked to dance.

So let's talk about the legal standards. The Equal Employment Opportunity Commission is the federal body responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee, based on the person's race, color, religion, sex, national origin, age, disability, genetic information. The legal standards that protect each of these protected classes are Title VII of the Civil Rights Act of 1964, Sections 102 and 103 of the Civil Rights Act of 1991, which amends Title VII and the ADA to permit jury trials and compensatory and punitive damage awards in intentional discrimination cases. There's a Pregnancy Discrimination Act, the Equal Pay Act of 1963, the Age Discrimination and Employment Act, the Genetic Information Nondiscrimination Act, Title I of Americans with Disabilities Act, which makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments. And finally, Sections 501 and 505 are the Rehabilitation Act of 1973, which is similar to Title I of the ADA. The only difference is it makes it illegal to discriminate against a qualified person with a disability in the federal government.

So let's talk about these various protected classes and give you an example. So race, this is one that I think we are familiar with, but let me give you a illustration of this. So there's a major automotive company in the Midwest. And there were allegations made by a supervisor that was working there. The supervisor was a black male. He was hired. And at the time, the majority of his workforce were Caucasian males. And when he began working there, he started noticing that the only way he could really describe it was aggressive staring, but he thought that maybe he was being paranoid. So he thought nothing of it. One day, he's having a conversation with a worker, they have a disagreement. And the worker says to him, "Back in my day, we used to bury people like you with a shovel." So he goes to a supervisor. He reports this. This goes through the process. And they go to a disciplinary hearing. The morning of the hearing, the supervisor's supervisor, so his boss approaches him and says, "You know what? You should drop this case because these guys are never going to respect you if you write them up for everything that they do. Why don't you drop this? We'll talk to him. It won't happen again." So this is a brand-new supervisor. He thinks, "You know what? They know better than I do. Let me drop this. And hopefully things will get better."

One day, he's walking in the plant and he sees a noose. He immediately reports the noose to his supervisors. They tell him, "It's not a noose. That's just rope that they're using to work on the cars." Then he sees another noose. He reports it. He reports another noose. He reports another noose. He reports a total of nine nooses. The supervisors do nothing. They respond to him with various levels of disregard, and eventually just tell him, "You clearly have no control over your workforce. Figure it out." He finds that whites-only is written on the bathrooms. Swastikas are written in the bathrooms. Stick figures with nooses drawn around them are written on the bathrooms. One day he orders a pizza with several coworkers who are not involved in this discriminatory behavior. And the person who ordered the pizza with him gets the pizza box, opens it. And someone has written an N-word-laced tirade, threatening them for ordering a pizza with the black supervisor. It gets so bad that one day someone pulls the supervisor aside and says, "You're gonna have to bring a gun to work because they're talking about jumping you in the parking lot and attacking you." So this lawsuit was filed.

And I wanna pause for a second. If you have a slip of paper out, I want you to write down what year you think this happened. And I will tell you, and it may or may not surprise you that this case was filed in 2018. And so many people will say to me, "1950s," or you know, "1970s." But for people who are not familiar with this case, that was filed in the Northern District of Ohio. It's shocking to them. And number one, there's not a magical force field in the 1950s that stops this from happening. And number two, this can happen anywhere. So I don't want anybody to get the idea that, "Oh, this only happens in a plant environment or a blue collar environment." This can happen anywhere. And so there's no force field in time and there's no force field in where this can happen. And we're gonna talk more about why this happens a little bit later.

Now, color discrimination is a little different from race. And one example I have is there was a lawsuit filed by an African American casino employee, African American female. She didn't get a promotion to supervisor. The district court dismissed her claims saying that five out of the six management openings had been filled by African American employees. But the plaintiff alleged that her manager had justified the promotion denial by telling her that she was "too black." So she was able in the appeal to establish that she was discriminated against because she had darker skin. And the intermediate federal court reversed in her favor.

So religion, the requirement is that employers must provide a reasonable accommodation as long as the employee can perform the essential functions of their job and that they have a sincerely held religious belief. So let's give you two examples. There is a 2020 EEOC case in the United States District Court of the Western District of Texas, San Antonio Division, where a healthcare company denied religious accommodations for a correctional nurse. So this nurse was a Apostolic Pentecostal Christian. She was hired by the company to work at a correctional facility as a nurse. She asked for an accommodation because of her religious requirements to wear a scrub skirt instead of scrub pants. And they withdrew an offer of employment. So the EEOC asserted that employers are required to reasonably adjust their dress codes to accommodate the religious beliefs of applicants or employees, unless these actions would constitute an undue hardship. And the company ended up settling the matter for $75,000.

Let's give you an example on the other side. There was an individual who worked at a correctional facility, and was Rastafarian, and asked for an accommodation to wear dreadlocks. So there was a requirement that everyone have short hair and the request for the accommodation was to wear the dreadlocks in observance of his Rastafarian faith. The problem was the dreadlocks were too thick to fit under a riot helmet. And a riot helmet was an essential function. Being able to put on a riot helmet was an essential function of the job. And so they said, "Well, this is an undue hardship. So unlike that first case where there was no undue hardship to allow the woman to wear a skirt instead of pants, in order to conduct the essential functions of being a nurse, here the individual could not wear dreadlocks because he could not perform the essential function for safety reasons to be able to put on a riot helmet that put himself and his fellow corrections officers in danger."

National origin, an interesting case that came out of the Northern District of Mississippi in 1998. There was a Mississippi court that heard claim of an American who alleged that after a Canadian consulting group began managing his corporation, he was terminated in favor of a Canadian citizen who was less experienced and less qualified. And the employer argued that Title VII doesn't protect citizenship. But the court held that the American employee had intended to state a claim of national origin discrimination and that he could proceed with his case.

Sex discrimination. An interesting thing about the sex discrimination is we usually think about it as male or female. You can't treat women differently in a workplace. But there was a circuit split up until recently as to whether the Title VII prohibition against discrimination based on sex extended to sexual orientation, transgender status, and gender identity. An individual who worked in a Georgia company was having a conversation with coworkers and mentioned that he wanted to join a gay softball team. And as soon as his employer found out that he was gay, they fired him. Well, he files a lawsuit under Title VII for sex discrimination. And at that time, that court did not extend Title VII protections to people based on sexual orientation. So his case was dismissed. So he appealed through the process. And at the same time, in two different circuits, there were also conflicting findings based on those particular circuits having different rules with regard to Title VII's protections. And so what the Supreme Court did was to consolidate these three cases, in the case of Bostock vs. Clayton County. And in June of 2020, the Supreme Court held that Title VII prohibits workplace discrimination on the basis of sex orientation, gender identity, and transgender status.

Age Discrimination and Employment Act. There was a case in the Eastern District of Louisiana in 2014, where there was a reduction in force and an individual that was laid off filed a lawsuit saying that he was laid off solely because he was the oldest person working there. And so what he was able to establish was two important things. Number one, that there were stray discriminatory remarks made about him, such as, "This guy's been here too long, and we need to get rid of him." Also discovery determined that the reduction in force policy was not followed properly. So maybe these two things by themselves were not enough, but the discriminatory remarks and the failure to follow their own policy was enough to establish a prima facia case that he was fired because of his age.

The Americans with Disabilities Act. Violations of this act would be not hiring a candidate because of their disability, failing to accommodate an employee's disability and harassing someone with a disability.

The Pregnancy Discrimination Act. In some of the cases that come out of this are a little shocking in this day and age. So there is a major telecommunications company that is being sued. Now the case is still pending in New Jersey District Court. And the company had a very generous maternity leave policy. They had also benefits for parents who adopted, but the lawsuit filed in 2016 and is still pending. A woman was denied those maternity leave benefits because she used a surrogate. And according to her complaint, her supervisor made disparaging comments about her choice to use a surrogate instead of adopting. So that case is still pending. There's another case for a news organization in Connecticut. It is also still pending, where a reporter began working for that organization in 2014, she was a reporter. And she had her first child, no issues with maternity leave and no issues with being able to breast pump at the station. The station actually had a lactating room.

So following the birth of her second child in 2019, her lawsuit claims that her news director repeatedly refused to accommodate her request to be allowed to pump inside the news station. And specifically, she asked to be able to pump twice a shift once in the morning and once in the afternoon. The news director told her that her request would be too difficult to manage. And on her second day back from maternity leave, she claims that her news director emailed her telling her to pump in a nearby Target store or a hospital rather than returning to the station, and to plan on doing that ever day. Her lawsuit also alleges that her boss told her that "breastfeeding doesn't count as a disability, and that lactation was not entitled to protection," which is wrong, and told her that, "Look, we have a business to run here." She was forced to email and call managers every day every time she pumped where she was. Sometimes that was maybe in a firehouse, or police station, or something, wherever she had to do a news story. And she had to report how long it would take. And she was told that she was a poor performer, and that a manager would need to shadow her for several days to observe her work and her pumping to make sure that she was actually pumping for as long as she said she was. The laws protect a mother's right to breastfeed her child. And so the company also had generous leave and generous policies, and had a lactation room. However, the choice to discriminate against her, despite these policies and despite these laws, was a very deliberate decision. And one thing you will maybe shocked about is these managers who made these decisions were women.

Okay, Genetic Information Nondiscrimination Act. So GINA prohibits employers from discriminating against employees on the basis of their genetic information. And so genetic information is broadly defined and includes information generated from genetic tests, the genetic tests of family members, and the individual's family medical history. When this was signed into law in 2008, I was finishing up law school. And the first thing I thought about was the movie "Gattaca" with Uma Thurman and Ethan Hawke, where the government would find people's genetic information and make determinations about where they could live, where they could work, who they could interact with. And then people would be killed if they hung out with people with the wrong genetic information. It was very, you know, dystopian. So the first thing that came to mind in that case was, "Oh my gosh, we're stopping government overreach." You know what?

The first case that actually went to trial on this was not what I thought it would be at all. It's a case in 2015, and the company provided shipping and storage services for grocery stores. And in 2012, an employee of that company began, and this is straight from the case, a quote, I am not making this up, "An employee began habitually defecating in one of the warehouses where the food products were stored and this destroyed products and caused obvious health concerns." So to identify the perpetrator, the company decided to obtain genetic samples from two warehouse workers. The company suspected to be behind the prank and took the DNA of the two workers. They sent the information to a lab and the employees were exonerated. Good news. But as you can imagine, word got around about the test and they were humiliated by other workers. So they filed a lawsuit under GINA and the Federal District Judge found in the worker's favor. And the jury returned a verdict in the amount of $2.2 million, broken down into $475,000 in compensatory damages and $1.75 million in punitive damages, and making matters worse for the company, the true identity of what the federal court called "the devious defecator" remains a mystery to this day. This is really the type of case that I didn't expect to come out of this law, but it makes sense. You can't just take people's DNA. There is due process. You either call the police. You put up cameras. There's something that you can do before you get to that step.

Now, a less exciting case is a EEOC case where individuals who got conditional offers of employment for a mining company had to undergo a fitness for duty examination and were also asked to provide information about familial history of diabetes, heart disease, and cancer. And so they filed an action with the EEOC saying, "Well, of course it makes sense that I have to do a fitness for duty for a mining company. That makes sense. But why do I have to give you my familial information?" And so the EEOC said, "Absolutely, this is violation of GINA. This is something that's considered genetic information. And this is something where an employer can use this information to deny someone a job, thinking in the future, they're more likely to have this particular medical condition, our medical premiums may go up. This person may be out sick more. So let's just discriminate against them based on something that may happen in the future." And this is what this law was made to make sure that it did not happen.

Equal Pay Act of 1963. So let me give you a history lesson. It was signed into law by President John F. Kennedy in 1963 and it banned employers from discriminating on the basis of race, color, religion, sex, and national origin when it comes to equal pay. There was an amendment in 1972, which expanded this to executive professional administrative jobs and other categories that had been exempted under the original law. But there really weren't a lot more changes about this law until recently.

Lilly Ledbetter worked for Goodyear Tire for 19 years. And one day she received an anonymous note that she was being paid significantly less than other men who had the exact same job. So Ms. Ledbetter did some recon. And she was able to determine that this was true. And she was exactly the same as all the men, same experience, same merit. The only difference was that they were men and she was a woman. So she files a lawsuit under the Equal Pay Act. And she loses that lawsuit, not because she was not able to establish a prima fascia case of a violation of equal pay. No. The court said, "You've proven everything." The problem is the statute of limitations began to run after the first paycheck that had that disparity. But that paycheck was nearly two decades ago. So she filed in the intermediate appellate court, loses again. Then she gets up to the United States Supreme Court. The court says, "You've proven everything, but the statute of limitations is what it is." In a well-written dissent, the Late Justice Ruth Bader Ginsburg wrote that this was a terrible result that can be remedied by the legislature, and that the legislature can make a change in this statute of limitations. And that is exactly what the legislature did. So in 2009, the Lilly Ledbetter Fair Pay Act, which reduced the time restrictions on wage discrimination complaints and expanded the statute of limitations to begin to run when the person discovers the pay disparity was signed into law by President Barack Obama. It was one of the first bills that he signed into law.

So speaking of that, let's talk about the gender pay gap. So in 2018, Pew Research data showed that women make approximately 85% of what men earn, and women in senior positions, such as CEO, vice president, and general counsel, often earn approximately 80% of what men in the same job titles earn. 2017 US Census Data showed that full-time, year-round working women earned 80% of what their male counterparts earned. And in 2018, men held 77.5% of fortune 500 board seats and women held 22.5%. Only 4.6% of those seats were held by women of color. And there was a Temple University study that found that assuming average annual pay increases a 5%, a male employee who's starting salary is $55,000 rather than $50,000 salary for a woman, and an equivalent job would earn more than $600,000 extra over the course of a 40-year career. As you can imagine, this impacts earning potential and retirement choices. So woman would have to work longer to save more money for retirement. So the theory of intersectionality asserts that people are often disadvantaged by multiple sources of their race, class, gender identity, sexual orientation, religion, and other identity markers.

Not only is there a gender pay gap, but there is also a gender and race pay gap, or a gender and sexual orientation pay gap, or gender and religion pay gap. If you have more than one affinity status, more than one protected class status, that can negatively affect you in wages. So 2015 Pew Research data showed that white women earned $0.82 for every dollar earned by white men, black women earned $0.65 for every dollar earned by white men, Hispanic women earned $0.58 for every dollar earned by white men. So what is the cause? So there are several that are proposed as potential causes. The first one is this idea of positional segregation is this idea that women are often lacking in top and better paying managerial positions within an organization. It's this idea that men often underestimate women's skills based on their current under-representation in certain occupations, and then discriminate against them in those occupations on the false assumption that increasing their representation would lower overall productivity. It's this mindset that if they were better, more of them would be here. So, clearly, since they're not here, then that means that bringing more of them means we're lowering the standard.

On the flip side, there was occupational segregation, is this idea that many so-called women's jobs have historically not been evaluated as contributing as much to men's jobs to organizational success. A lot of the discrimination in these professions, "male-dominated professions," the legal field is one of them. It's caused by these social pressures of interpreting women's inclusion as a threat to the profession's masculinity. Under this idea, men don't discriminate against women because they view them as less qualified. They discriminate because they're trying to protect the social power that men hold through the membership in the "boys' club." This idea of, "Well, if we have more women here, there's not gonna be enough space for the men." Another cause is a lack of political power. As of 2020, and this was before the 2020 election. So I know that the numbers have changed. But as of 2020, women accounted for only 18% to 29% of state legislators, 26.4% of state senate seats, 30% of state house and assembly seats, and 10% to 20% of governors, although they are 51% of the national population.

Another major cause is unconscious or implicit bias. This is a preference for a person or a group of people that individuals unknowingly, and that is the operative word, unknowingly, have in the back of their minds, which influences a person's behavior. And the evolutionary fight-or-flight response process causes people to rapidly categorize people in order to survive. Over time, this need has led to stereotypes, prejudice, and discrimination. And this unconscious bias can impact an employee or a potential employee's life. So we all know about the fight-or-flight response. Biological response from the prehistoric days where we knew to flee when we saw a tiger, but we knew to fight if we saw someone harming a child or a loved one. So it's 2022. We don't need to run from tigers anymore. But what our brain is doing is categorizing by power, intelligence, and ability. And we have categorized based on our entire life's experiences, conversations around the dinner table when we were young, conversations that we heard from peers, commercials we saw in television, magazine articles, various things that we have experienced and seen have unconsciously informed us who is in power, who can tell us what to do, who is intelligent, and who has the ability to do things. And when we see things that threaten those beliefs, those unconscious beliefs, we can often feel unsafe without there being any threat whatsoever. So as a result, people are likely to hire people that look like them or to work with people like them, or to give the benefit of the doubt to people who look like them. If they're not aware of this bias, that will continue to happen and impact the workplace. This often forms itself in confirmation bias, the tendency to search for interpret focus on and remember information in a way that confirms one's preconceptions, and any evidence that is in contrast or conflicts with your preconceptions are disregarded.

So let's talk about some examples. There is the famous MIT and University of Chicago resume study, where the economist sent 5,000 resumes in response to help wanted ads in Boston and Chicago. And they randomly assign stereotypically Caucasian-sounding names such as Greg, or stereotypically African American names, such as Jamal, two otherwise identical resumes. And they found that applicants with white-sounding names receive 50% more callback interviews than those with African American-sounding names. There's also the blind audition studies where they found that having musicians auditioned behind a curtain where the gender of the participant could not be seen by the selection committee substantially increase the likelihood that a female musician would advance beyond the preliminary round and be ultimately selected for position in the orchestra. Then there's stereotype studies. And there are three major studies that are fascinating. So stereotype threat refers to the risk of confirming negative stereotypes about an individual's racial, ethnic, gender, or cultural group. And so stereotype threat increases an individual's anxiety level and reduces their overall work performance. In these 1990 studies, they selected white and black college students who had identical SAT scores and gave them a 30-minute portion of the GRE. And they gave them either a stereotype threat condition or a non-stereotype threat condition.

So in the stereotype threat condition, the participants were told that the test was diagnostic of intellectual ability. In the non-stereotype threat condition, the participants were told that it was a lab task that studied problem-solving. In that stereotype threat condition, blacks did less well than whites, but in the non-stereotype threat condition, the blacks' performances were almost equal to those of whites. When the students merely recorded their race on the test, presumably making the stereotype salient in their minds, even if they were not told this test was diagnostic of their intellectual ability, blacks would perform less, well, than whites. There were also gender studies taken where researchers gave a math test to men and women, and they told half the women that the test had shown gender differences. So when test administrators told women that the test showed no gender differences, the women performed equal to the men. Those who were told the test showed gender differences did significantly worse than men. And this experiment, again, was conducted with women who were top performers in math, just as the experiments on race were conducted with strong motivated students. Then there was a sports study done in 1999 out of the University of Arizona and Princeton University, where they took college students and they had them play a golf game. They found that black participants performed significantly worse when performance on a golf task was framed as diagnostic of "sports intelligence."

In comparison, white participants performed worse when the golf task was framed as diagnostic of "natural athletic ability." So what happened here was stereotypes that were flipped. And I wanna make it clear. No stereotypes are good because they all dehumanize people and turn people into caricatures. But the stereotype that was at play here was a stereotype that African Americans had natural athletic ability. But in comparison, using the phrase, "sports intelligence," created a stereotype threat in these African American participants. Some other biased behaviors, microaffirmations. These are tiny acts and gestures of inclusion, caring, and graceful acts of listening. This is where you have someone who starts working at a law firm. The partners take that associate under their wing. They teach them how to do things. They help them out when they make mistakes and they nurture them and help them to be wonderful attorneys and grow at the firm. Then there's microaggressions. These are statements, actions, or incidents regarded as instances of indirect, subtle, or unintentional discrimination against members of a marginalized group, such as a racial or ethnic minority. So let's go over some examples of common microaggressions.

The first is, "You speak so well." It's an offset of "You are so articulate." Both of these suggest that the speaker did not expect the person they're saying this to, to speak well or be articulate based on the speaker's first impression. And that first impression is based on their appearance, their race, their national origin. Maybe they expected a accent, or maybe they expected it to speak differently because of their race. What it does is it sets that person apart from other members of the same background. And it also creates this feeling of isolation from the speaker. And it's so important to note that this is why it's a microaggression. The person that said it may not have had any negative intention, but the effect on the listener can be very hurtful.

The next one, "I cannot be racists, my best friend is blank." Every person, regardless of background, is subject to bias. I am subject to bias. It's a human trait. People can have close friends or close relationships with people of a particular background while still having negative biased beliefs about that background, or that race, or religion, or sexual identity as a whole. And the idea is you see your best friend as your best friend, and you may see people of a certain background as that background, that stereotype. And I think another concern about this particular microaggression is it shuts down all conversation. You know, once you say, 'Well, I can't be this," well, nobody may be saying that you are whatever is. Nobody's saying that you're racist. Nobody's saying that you're homophobic. But can we have a conversation that what you said may have been hurtful to someone, look, people have come forward and said that this is not appropriate or that it can be hurtful to people. And once you kind of go to, "Well, I can't be this," or, "I can't be that," it breaks down the ability to have a conversation, to have a mutual understanding.

The next one, "I don't see color." And the idea of not seeing skin color is really, really nice in theory, but in practice, it's inaccurate. So anyone who is able to see and see color can discern and recognize one skin color to the next. And the goal is not to be color blind. The goal is actually to see and recognize skin color, but to control and regulate your impulse to make decisions based on those characterizations. And so being able to first recognize this is critical. We have to first recognize that each and every one of us has preconceived notions and expectations about different racial groups, and awareness proceeds change. And the goal is not to stop seeing color. The goal is to see color, to see and recognize and appreciate the differences that we have and to embrace those differences. And if we don't do that, we are going to default to our unconscious biases every time.

Next is, "Oops, wrong person." This happens when maybe there are only two or three people of a background at a law firm or a workplace and one minority is confused for the other. And that can show a lack of effort of inclusion. Where are you really from? Although someone may be genuinely curious about someone's background, when that curiosity turns into an interrogation, it can really make the other person feel like they just don't belong. So for example, if you say to someone, "Hey, where are you from?" And they say, "I'm from this local city that we're in right now." And you say, "No, no, no. Where are you from?" The answer hasn't changed. They're still from that city. And so you keep asking the question, but in their mind, they're like, "Well, would they ask someone who is not my background that same question?" And so it can really make them feel as if they don't belong.

Your name is too hard to pronounce. So we are in a diverse country with diverse workforces, with people with many different names. And if we can learn how to say Tchaikovsky and Daenerys Targaryen, we can put a little extra effort to learn the names of our coworkers and subordinates. And what the messages that they get is you don't belong here, and your name is not worth learning because it's not "normal" to me. And people have asked me, "Is it okay to say, 'Hey, can you give me the phonetic spelling?'" That's 100% fine. Just make sure you don't ask them for the phonetic spelling every time you see them, but there's nothing wrong with asking them a couple times, "Hey, I wanna make sure I get this right," but saying your name is too hard to pronounce or giving them a nickname without them, telling you to give them a nickname is a microaggression.

And finally, "You look so young." Now, a lot of people say to me, "Oh, Cheyne, this is not a microaggression. That's a compliment." What happens is when people come to me with a complaint or with this particular microaggression, it's when they're discredited, it's when they worked very hard on a project or a case, and someone is asking them, "Oh, you didn't do that. Who did this? You're too young to do this." It's almost telling them like, "You're not good enough to create this work product, to complete this project because of what you look like." And so that is why this is a microaggression, because it's usually said to someone in a discrediting and devaluing situation. So what does this all mean? And why should you care? Because we talked a few slides ago about stereotype threat, just the mention or the reminder to a person about their background and the associated biases triggers this fear of confirming negative stereotypes, which results in poor performance, despite existing motivation, intellect, and ability. So if you can imagine women and diverse individuals encountering microaggressions like these on a regular basis, that may on some level give you some understanding into why we have these diversity discussions in the first place. And that is why diversity inclusion and anti-bias policies and training are so crucial and critical. So the goals and policies of training. To ensure that all subordinate and supervisory employees understand that workplace harassment and discrimination will neither be condoned nor tolerated. To create a procedure to promptly, thoroughly, confidentially, and respectfully handle complaints, and to establish a strong defense to harassment or discrimination lawsuits.

So two landmark Supreme Court cases that came out in 1998, Faragher vs. City of Boca Raton, and Burlington Industries, Inc. vs Ellerth establish that proper policies and training can serve as an affirmative defense to harassment or discrimination lawsuit. Now, please note, in 2019, New York passed a bill eliminating this affirmative defense, but that appears at this time, at the time of the recording of this particular presentation, that seems to be the only state that has eliminated this offense. So there's two issues here. You can have inappropriate diversity training and you can have inadequate diversity training. Two main examples of inappropriate diversity training happened in the 1980s and '90s. In 1996, R.R. Donnelly & Sons, that is a Chicago-based printer, they invested $6.6 billion, yes, with a B, in two diversity training program that forced black and white employees to watch a movie showing lynchings in the Old South. Employee were also required to respond to offensive questionnaires with statements about the unpleasant body odor of racial minorities and sexual looseness, and immorality of members of a certain nationality. These offensive trainings were conducted "in an effort to make white employees confront their alleged racism."

This led to a class action lawsuit by 3,500 black employees. Ironically, this training was established as part of a settlement of a 1993 discrimination lawsuit. So in another example of inappropriate diversity training from 1988 to 1994, the Federal Aviation Administration, the FAA, sponsored workshops on gender differences, racial discrimination, and sexual harass in which one of the exercises required male air traffic controllers to walk a gauntlet of female controllers who were instructed to pat the men's rear ins, grab their crotches and make lewd comments. The workshops also required black employees to go into a separate room, discuss their problems at the hands of the white-male-dominated society. That's what it said. Rejoin their coworkers, and then verbally confront a white employee. As you could expect, this led to lawsuits and a congressional investigation.

So why did this happen? In the 1980s, workforces began to become a lot more diverse and there were more lawsuits at this time. And so many of the lawsuits settlements required diversity training. And this led to a market of, I have no better term than clown car diversity trainers who did not really know what they were doing and were making things up, and essentially just humiliating people. When any law firm or corporation is hiring a trainer, they should choose an attorney, someone that knows the law, knows what type of training and policies are necessary to make the firm or company eligible for the affirmative defense and someone who understands that anti-harassment training is uncomfortable, but doesn't have to be traumatizing or humiliating. We talked about inappropriate training.

Let's talk about inadequate training. And this comes from a professor from Columbia University, Jonathan Kahn. He wrote the book, "Race on the Brain: What Implicit Bias Gets Wrong About the Struggle for Racial Justice." And he talks about the concept of deracinatin the legal subject, this idea that we're all the same race, the human race, love is love, why do we look at differences? And the idea is we can't ignore it, because as I said already, bias is something that's inherent to all humans. And it's not just limited to one race. It's everyone. And if we do not talk about it, we can't address the impact it causes in the workplace. We can't have a diverse and inclusive workplace without having these uncomfortable discussions, but ignoring someone's background, you are erasing who they are. Our differences are often great. However, bias causes us to default to all negative differences. The next problem is obscuring power. Professor Kahn talks about this idea of recreational anti-racism. So it's just, let's talk about what's going on in our brain. And then we just completely obscure the fact that there are real structures of power that are acting in real powerful ways. It focuses on the person and their own attitudes, instead of focusing on the impact that those attitudes are having on others.

Third is seeking a technical fix. You know what? Let's just have an expert come in, train us, and then we'll magically be fixed. Doesn't work that way. And four, dumbing down explicit racism. So this reduces explicit racism down to obvious examples. So we can all think of just really horrific images that bring up racism or discrimination. It allows us to ignore the more insidious and subtle and nuanced manifestations of conscious racism. And it just renders racism as a static thing with one set and measurable manifestation, and turns into this mythology that does not exist today anymore. You want training that discusses implicit bias, explains power dynamics, explains that a great deal of this is unconscious and systemic, instead of just saying, "This is the worst of the worst. Thank, God, you're not like that." And then we just move on without having critical thought about it.

So finally, let's talk about the impact of bias in the legal profession. And so I'm going to be discussing statistics from several studies. One is a 2006 American Bar Association report visible and visibility, women of color in law firms. There's a 2009 catalyst study, 2018 ABA report from the Commission on Women in the Profession, and the 2020 ABA report left out and left behind the hurdles, hassles, and heartaches of achieving long-term legal careers for women of color. So let's take it back to 1900. At that time, there were 112,939 attorneys in the United States. 718 were African American. 81% were defined in the US Census as "colored," which included Chinese, Japanese, Korean, or Indian men. The United States Census did not include statistics on women lawyers at all at that time. So fast forward to 2004, 50% of law graduates are women. 21% were minorities. 17% of law partners were women. 4% were women of color. In 2005, 49% were women, 6% African American, 2.6% Asian, 3.5% Hispanic Latino. In 2006, 48% of all associates and private law firms were women, 15% attorneys of color. In 2020, 15% of associates were women of color. So 14 years, no change. Less than 4% of partners were women of color. And 2% equity partners at large firms are women of color.

Let's talk about attrition. In the late 1990s, more than 75% of minority female associates left their jobs in private law firms within five years being hired. After eight years of being hired, the percentage of minority female associates leaving increased to 86%. In 2005, 81% of minority female associates left their law firms within five years of being hired. Why are they leaving? So the first attorneys reported experiencing disparate treatment in law firms, in networking, demeaning comments, desirable assignments, performance evaluations, marriage, and family. So with networking, 62% of women of color reported they had been excluded from networking opportunities along with 60% of white women and 31% of men of color. Only 4% of white men stated that they had been excluded from networking opportunities. 43% of women of color reported having limited client development. That's along with 55% of white women and 24% of men of color. With mentoring, they were only given assignments from minority partners, or they were mentored by someone who had no power in the firm. And the idea of show horses, this is being brought into meetings only to impress clients and show diversity, but then denying them opportunity to conduct any substantive work for that client, or having them sit at council table during a trial only to be a diverse face for the jury, but then given no substantive role in the trial. Demeaning comments. So 49% of women of color said they had experienced demeaning comments or harassment compared with 47% of white women, 34% of men of color, and 2% of white men. And so there's this idea of allowing partner's biases.

So in one of the studies, there was a story of an Asian male associate who was invited to meet with the client only because he was Asian. And he knew this because when he came into the room, all it was, was this really awkward, "You guys are both Asian," introduction, and then no discussion of him doing any substantive work on the file. And so this associate goes back to his office and later the partner left a gibberish voicemail attempting to imitate or mock Asian dialect. As you can imagine, that was horrifying for this person. And he played it for other people in the firm and they were equally as horrified, but nothing happened to that partner in any disciplinary fashion. Another example is, a Hindu attorney was told by a mentor that she had to give up being vegetarian if she wanted to get ahead and be successful with clients who want to work with someone who can order them a steak. And these two examples are not unconscious bias. They are conscious. If a diverse attorney has this experience and the law firm does nothing about it, then they're going to leave.

One example is allowing client biases. So one of the studies mentioned an Asian woman attorney. She reported a sexually and racially offensive comment made by a client. She was asked by a male partner, whether she found the client attractive. So when she went to the only female partner, she was told to "Just let it lie. Don't make waves. Just move on." Nevertheless, law firms are shocked when those same attorneys leave the firm and then they blame them for leaving. And I've heard law firm leaders routinely say, "We hire diverse attorneys. We train them and invest in them, and then they leave." Problem is when they report harassment or discrimination, they are ignored or discredited. And this is the result, the difference between diversity and inclusion. Another issue was desirable assignments. There is a legal assignment pyramid. At the bottom is document review, legal research, and contributing to a brief. So in the middle, there is interviewing witnesses and significant participation in a trial. And then at the top, there's lead trial attorney in managing client relationships.

So what happens is if you get stuck at the bottom, you're stuck in this, you're doing great bubble, where you're doing doc review, you're billing hours, but you're not doing anything that will advance you. And so 44% of women of color said that they had been denied desirable assignments compared with 39% of white women, 25% men of color, and 2% of white men. And so I wanna make it clear that there's nothing wrong with having to do doc review when you're 10 years in. I still do my own doc review, but I still have worked at the top of the pyramid and it's still available to me. But if someone is there for too long and they stay at the bottom too long, they will move on. Performance evaluations. So 31% of women of color reported receiving unfair performance evaluations compared with 25% of white women, 21% of men of color, and 1% of white men.

So there's this idea of soft evaluations, a lack of constructive criticism, which leads to lack of improvement. And so what happens over time is the person has no idea that there are certain issues maybe with their writing or certain issues with the way that they interact with clients. They've never told them. So when they're up for partner, they're told for the first time that their writing is poor or that a client didn't like how they reacted to something or communicated with them. Devalued achievements. One of the individuals who wrote in one of the studies said that... It was a black female. She got a very high profile case dismissed with prejudice and received zero acknowledgement for her accomplishment. Her case was valued at 1.5 million that she got dismissed. And then when a non-diverse associate won an oral argument against a pro se plaintiff, the firm announced the win to everyone by email and took everyone out to drinks to celebrate. That case was valued at 5,000. And so it's just very important for firms to encourage attorneys to announce their wins, all of them, and to be recognized. Subjectivity and performance evaluations.

There was a 2014 writing sample from Aaron Reeves, who is a former professor at Northwestern University, where partners from different law firms were asked to evaluate a young lawyer's memo. Each partner was given the same memo written by fictional, third-year associate, Thomas Meyer, except half received a memo from an associate identified as white, and the other half received a memo from an associate identified as black. They deliberately inserted 22 different errors, and the partners found more of the errors in the black-identified memo and described the black version of Thomas Meyer as less competent. So what does this tell us? When expecting to find fewer errors, we find fewer errors. When expecting to find more errors, we find more. This is an unconscious confirmation bias. The evaluators unconsciously found more of the errors in the African American Thomas Meyer's memo, but the final rating process was a conscious and unbiased analysis.

Another thing that was really interesting was it didn't matter if the partners were white or black. The ones that did the evaluations, it did not change. The black partners were just as likely to find more errors on the black Thomas Meyer as white partners were. So with marriage and family, 72% of women said that others questioned their career commitment after they gave birth or adopted a child, whereas only 15% of men of color and 9% of white men were asked these questions. And they were met with comments such as, "Don't you feel bad leaving your kids at home?" And do you remember when we talked about stereotype threat and microaggressions? This type of questioning is activating the same fears and potential performance drops. And this is why you need to have training that discusses how inappropriate these comments are.

One interesting statistic that came out of the studies was the perceptions of actions that impact compensation. What did people believe impacted their compensation the most? With white men, 52% believe that developing a book of clients was something that had the largest impact on compensation. 31% professional public recognition, 26% staying with the same employer, and 23% changing employers. But one thing that was different was with women of color, men of color, and white women, the majority said changing employers was an action that impacted compensation. Others said staying with the same employer, acquiring legal skills, expanding their network. But at the bottom of many of these was developing a book of clients. Even though women believe that changing employers had the biggest impact on increasing salary, statistical analysis of salary differences reveal that changing employers had a negative impact on women's salaries. Each additional employer on average reduced the earnings of white women by 9%, and by 8% of women of color.

However, changing employers did not have a negative impact on men's salary, irrespective of race. So what happened is they would get the initial salary bump, but the annual salary increases, benefits, and bonuses would be less because of bias. Another thing to note is the white men understood that a book of business would increase their overall compensation. This is not a secret. That is your road to success in a law firm. But the women and men of colors exclusion from strategic networks and assignments kept many from indicating that a book of business helped increase their compensation, because it was not something that was available to them or they didn't perceive it to be available to them. So it appears that they believe the best way to improve was by leaving and going somewhere else that would give them those opportunities. So why are diverse attorneys staying? Work enjoyment. So if they find that if it's intellectually challenging, there's problem-solving, they feel like they're helping. And also having prestige and status is something that keeps people where they are.

Financial reasons. We have student loan debt. So first generation lawyers and lawyers of color carry higher student loan debt. So that's often a reason why they will stay. Family and community. People of color who attain some financial security have been shown to lend and give money to a broader network of relatives, which has been shown to sometimes harm the stability of their financial position, and may partially explain the race wealth gap, but also explain why people stay. But then on the flip side and the positive side, it's paving the path for lawyers of color who would enter the firm after them. So showing others what is possible. So recognizing the importance of representation is one reason that people will stay. So where are attorneys going when they leave? When the attorneys leave, they go in house, or they go to the government, or a lot of people leave.

So the highest percentage are women of color and white women. 15% of them find jobs outside of the legal profession when they leave the law firms. What can you do as an attorney or someone who may be a law firm leader? The first step is awareness. Being aware of the dynamics of unconscious bias and stereotype threat, and all of these different things that are going on under the surface is critical to making a difference in diversity and inclusion, and the elimination of bias in law firms. And the next step is to accept it. Just accept that this is the way that things have been, but then there has to be a willingness to have uncomfortable conversations in order to change. And that's where a lot of people fall off. You cannot achieve change without having uncomfortable conversations. If the majority non-diverse leaders and firms refuse to have the conversations, there will not be changes. And then implement effective anti-harassment, anti-discrimination bias policies and trainings, and finally reduce bias and encourage inclusion. Once you're aware that there is a huge difference between diversity and inclusion, you will then know the difference between hiring and retention.

I recommend that people take the implicit association test. It's by Harvard University. It measures the existence and strength of biases by evaluating response latency, and make sure that there is policies and training at the particular law firms, discussions of the relevant legal standards, talking about harassment and discrimination, discussions of implicit and unconscious bias, complaint and investigation procedure, procedure for complaint intake, electronic communications and internet usage, confidentiality and cooperation, prohibition against retaliation, remedial action, documentation, applicability to non-employees, training and distribution of the policy. And implement bias interrupters, increase monitoring of work distributions, randomization of work assignments, equitable distributions of the preferred assignments, and more standardized, less objective decision-making processes. It has to be by choice, not by force.

Now mandatory anti-harassment training and anti-discrimination and bias training is something that is necessary to shield employers from liability. But it has to be presented in a way that gives employees the choice of what to believe in order to be effective. Look, employees, you get to believe what you want to believe, but these are the consequences of those beliefs when they are acted out in the workplace. And that's going to perceived very differently than demonizing people. There was a University of Toronto study where white participants read a brochure, criticizing discrimination against blacks. And when participants felt pressure to agree with the brochure, the reading strengthened their bias against blacks, but when they felt the choice was theirs, the reading reduced bias.

Make it personal. Training that fosters environment of inclusion and teamwork needs to be implemented. And research suggests that individuals who believe their chances of success are dependent on the performance of others, the team, they pay significantly more attention to inconsistent information that challenges their stereotypes. That means they are less likely to fall back on bias.

Mentorship programs. When workplaces create mentorship programs, supervisors who help their mentees advance in the company are more likely to believe that those advancements are deserved, regardless of the race or gender of the mentee. And on average, mentorship programs increase the representation of black, Hispanic, and Asian American women, and Hispanic and Asian American men from 9% to 24%. Next hold people accountable.

Hold practice group leaders accountable. There should be responsibility to practice group leaders to monitor and advance the careers of everyone, including diverse attorneys in their practice areas. And make sure that diverse attorneys are being groomed for leadership positions the same way that anyone else is. And incorporate diversity into firm decision-making. Recruiting, there should be a relationship with local law schools when it comes to recruiting talent. Retention, have an inclusive environment where people will leave.

Promotion and partnership track. Make the metrics clear for what is expected of associates to grow and be promoted in the law firm. Is it billable hours, the fee billing intake, percentage of a book of business?

Be clear. And the more you leave up for discretion, the more likely people will use that discretion to default to biases. Encouraging partners to say hello, stop by offices. Take associates out to lunch and invite them to client events. If this becomes normalized, this won't appear to be performative and it will become natural to many partners.

Professional development. Equally send associates to CLEs, seminars, other events to improve their skills. Encourage them to ask to attend relevant CLE. If an associate is excelling in one area, but needs help in another, look at seminars that might help them improve that skill.

Client development. Introduce your associates to the clients and hold people accountable for non-compliance of anti-discrimination, anti-harassment policies. But if you hold people accountable and foster an inclusive environment, you will reap the boards and benefits of a diverse workforce that has a diversity of thought, connection to the community, and your firm or organization will be recognized as leader in that area and attract even more talent.

So to conclude, if you have any questions, please feel free to email me. My information is there. I thank you all for listening. This is a tough topic to cover. And I thank you all for staying with me and sitting through the discomfort. And I'm hoping that it was valuable to you. I hope everybody has a great day. Thanks.

 

Colleen Quinn: Hello. Welcome to LGBTQ Cultural Competency in Client Representation by Quimbee. This is Colleen Quinn. I'm a lawyer in Richmond, Virginia, practicing at my law firm of Locke & Quinn. And I've been in practice for 32 years. This is one of my favorite topics to talk about because I represent quite a number of LGBTQI clients. And making sure that we are culturally competent and make them feel comfortable as our clients is really critically important.

   As an aside, I belong to the LGBT Bar, also to the Virginia Equality Bar Association. And I'm one of the allies with Equality Virginia, having worked with them for many years, including getting favorable legislation passed in Virginia for LGBTQ families. In particular, I'm quite proud that this past year we got a second parent adoption bill passed in Virginia working with Equality Virginia.

   So let's launch into our topic today and talk a little bit about cultural competency. What are we going to cover? We're going to cover the use of appropriate language with LGBTQ clients and ensure that you have a welcoming law office. We're going to recognize what is necessary to make our clients feel comfortable when they are in our law office. And we're also going to make sure that the other staff in our law office use the same terminology and, likewise, are culturally competent.

   So we want to be educated and we also want to educate our team. We want to respect our clients and also our perspective clients by knowing and using proper and respectful terminology. So I've included among your slides, there's one of my favorite slides, which has the rainbow flags. That basically says, "We are all the same in inside. I'm gay, I'm lesbian. I am bisexual. I am transgender. I am like you. I am human." We need to respect the humanity that we all have.

   Let's look at the letters now. What do the letters mean? You should know the letters. Some of them are pretty well known and obvious, but others are not quite as well known. First of all, the L stands for lesbian, G stands for gay, B is bisexual, T is transgender, Q is queer or questioning, I is intersex. GNC is gender nonconforming, and A typically refers to asexual.

   Now, sexual orientation and gender identity are two different concepts, and it's really important to understand the difference between the two concepts. Sexual orientation is who you go home to. Gender identity is who you go home as.

   So let's focus on what is gender identity. Gender identity is basically one's innermost concept of self as male, female, a blend of both, or neither. It's how individuals perceive themselves and refer to themselves. Gender identity can be the same or different from someone's assigned sex at birth. Some people might know of a really famous actress who basically her parents chose at birth that she would be female, although they could have gone either way.

   What's the difference between gender identity and sexual orientation? Gender identity is which gender you identify or don't identify with. And sexual orientation is who you are romantically, physically, emotionally, or sexually attracted to. Sam Killerman says, "Gender is who you go to bed as. Sex is who you go to bed with."

   A good view of looking at gender identity versus sexual orientation is The Genderbread Person, not the gingerbread person, but The Genderbread Person. And this is in one of the slides that we've included in the materials, that basically there are different spectrums of gender identity, gender expression, biological sex, and sexual orientation, and everything basically works on a spectrum.

   So gender identity can be on the one spectrum, woman, or on the other spectrum, man, or in the middle, gender queer. Gender expression, on the one hand, could be feminine and, on the other hand, masculine or, in the middle, androgynous. Biological sex, of course, can be female on the one hand or male on the other, or in the middle is intersex. So sexual orientation generally ranges from heterosexual on the one end to homosexual on the other, and then bisexual in the middle. But The Genderbread Person gives us a nice diagram and visual idea of the different spectrums on each of these different scales.

   Let's talk a little bit more about gender identity, and we're going to get into some words that are appropriate and words that are inappropriate. So first of all, gender nonconforming is a term for individuals whose gender expression and behavior is different from societal expectations or stereotypes related to gender. Gender queer is a term which generally refers to a person who does not accept a gender binary world and refuses to conform their behavior to any gender stereotypical behavior. Gender identity, that we've already talked about, is a person's innate, deeply felt psychological identification as a man, a woman, or some other status, which may or may not correspond with their external body or sex assigned at birth, that is, what was listed on their birth certificate.

   Gender expression is the external manifestation of a person's gender identity, which may or may not conform to the socially defined behaviors and external characteristics that are commonly referred to as either masculine or feminine. These behaviors and characteristics are expressed through movement, dress, grooming, hairstyles, jewelry, mannerisms, physical characteristics, social interactions, and speech patterns, including voice and voice levels. Gender is basically a spectrum.

   Now, a cross-dresser is a term for a person who dresses in clothing not typically worn by their assigned birth sex, but who generally do not desire to live full-time as the other gender. So a cross-dresser typically might be a drag queen. If you go to a drag show, there's a really great breakfast place here in Richmond, Virginia, where they have a fabulous Sunday brunch and drag show.

   Intersex. Intersex means biologically a person who was born with both female and male or indescript sexual genitalia or chromosomal differences that create secondary sexual characteristics.

   So moving along in our presentation here, we're going to talk a little bit now about transgender people. Transgender means an umbrella term for people whose gender identity or gender expression differ from their assigned sex at birth. So not all transgender people want to live as the sex opposite of the one they were assigned at birth. Individuals who cross-dress, live androgynously, or do not live their life in a gender binary manner, such as gender queer, are all within the umbrella term transgender.

   The preferred use of the word transgender is as an adjective and not a noun or a verb. So you would say, "Tony is a transgender man," not, "Tony is a transgender," or, "Tony is transgendered." Instead, it would be used as an adjective. So a transgender man would be a term for a transgender individual who was assigned female at birth, but currently identifies as a man. This is sometimes shortened to trans man. And a transgender woman, on the other hand, would be the opposite, a term for a transgender individual who was assigned male at birth, but currently identifies as a woman. And that's sometimes shortened to a trans woman.

   Actually, when I'm dealing with clients, there's really no reason whatsoever to use the term transgender man or transgender woman or trans man or trans woman. Basically, you should just refer to them as either man or woman. However, they choose to be referred is how we should respectfully refer to them and just leave the term transgender out, unless for some reason there's a legal reason to have to use the term transgender.

   Transsexual are people whose gender identity differs from their assigned sex at birth and people who often on a full-time basis live their lives as a member of the opposite sex. They may or may not take hormones or have surgery. This term, transsexual, is one that's hotly debated within the transgender community and should only be used if the individual's comfortable with the term. So I would just advise you not to use the term transsexual. There's really no reason to ever use it. You should always just recognize how does a person want to be identified and how should we be referring to them? What are their pronouns?

   So basically, in my signature block at the law office, I make sure I have of she/her/hers in my signature block and are the pronouns that I used to refer to myself.

   So looking at definitions of transgender people, when we talk about a person that transitions, it's important to not use the term transgendering. A transgender person, we use that as an adjective as opposed to a verb. So when a person is transitioning or they're going through gender affirmation, that's when an individual begins to live as the sex opposite of the one is signed at birth. And that process is referred to as transitioning or going through the gender affirmation process.

   That process of self-authorization generally includes three phases of transition: social, legal, and medical. It can be really difficult for a person to go through this process. I'm working with a client right now who, in trying to transition from male to female, has had to try to explain to his young son what is going on. And that can be difficult for not just the person going through the transitioning process, but also for members of the family around them to understand. So it's important to really understand what that person is going through and just how difficult it is to reach the point of knowing that a person doesn't feel right in the particular sex that they've been assigned. They just don't feel good about it.

   If we follow the whole story of Caitlyn Jenner, that's a really great public example of just some of the pain and the hardship that transgender people go through, especially in going through the process of transitioning. And so the social, legal, and medical parts of the process are all very important.

   So let's talk a little bit about the medical, psychological aspects of transgender people. So gender dysphoria is a DSM V diagnosis. It is not a term of general usage that describes a strong and persistent cross-gender and persistent discomfort with a person's sex or sense of inappropriateness in the gender role of that sex, which causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Some, but not all, transgender individuals have gender dysphoria. This has been and, in some literature, still is referred to as gender identity disorder. However, many in the community consider the use of disorder to be an offensive term. And gender dysphoria is now the preferred technical term. So again, we don't use the term gender identity disorder. The proper term to use is gender dysphoria, if the term needs to be utilized at all.

   So let's talk a little bit more about the medical side of transgender people. So gender reassignment surgery, also referred to as gender confirming surgery or gender affirming surgery, those terms refer to various surgical procedures that change one's body to align gender identity and presentation. Contrary to popular belief, there is not one surgery. In fact, most transgender people that are transitioning go through a lot of different surgeries. In addition, they typically undergo hormone therapy. The administration of hormones to facilitate the development of secondary sex characteristics is part of the medical transition process. Those medically transitioning from female to male may take testosterone, while those transitioning from male to female may take estrogen and androgen blockers. Note that not all persons that transition from one sex to the other actually undergo any surgery. Some folks will just simply go through the hormone therapy and take medications to basically transition from one to the other. So it's not always the case that surgery is imperative in the transitioning process.

   All right. Let's talk a little bit about some more controversial things. In children, Lupron is used to suppress puberty and the development of secondary sex characteristics that can exacerbate gender dysphoria symptoms and make transitions at adulthood less successful. There's a reversible effect upon termination of the Lupron therapy. This, of course, is hotly, hotly debated. The World Professional Association for Transgender Health, that's WPATH, who can be found at wwww.WPATH.org, have heavily debates on hormone therapy and surgery for minors. Most persons in this area are of the opinion that children should figure out for themselves who they want to be and any intervention at a young age, especially medical hormone therapy intervention is inappropriate, for young children.

   So let's now talk about words not to use. And I actually feel like sometimes I should have my mouth washed out with soap when I talk about some of these words. So a lot of words not to use because they are outdated or considered offensive include tranny, she-male, he-she, it, transvestite, sex change, or sex change operation. Ooh. I just feel like I've got a dirty potty mouth when I use those terms. So whenever possible, use a transgender person's chosen name, even if it's not their legal name. Oftentimes, transgender people cannot afford a legal name change or they're not old enough yet to change their name legally. They should be afforded the same respect for their chosen name as anyone else who lives by a name other than their birth name. Look at all the celebrities out there, Cher and others, Madonna. They go by whatever name they choose and not necessarily their birth name.

   If it's not possible to ask a transgender person which pronoun he or she prefers, use the pronoun that seems consistent with their appearance and gender expression. For example, if a person wears a dress and uses the name Susan, feminine pronouns would be appropriate. If it's not obvious, try to avoid any use of gender terms until you can ask their person's preference.

   I find that most of my clients are absolutely nonplussed if I just simply ask them, "Which pronouns do you prefer to use?" When we get on an Equality Virginia Zoom type call or a presentation, the first thing we do is we put in our little Zoom box our name and then which pronouns we prefer. And then when we introduce ourselves, we typically give the name and our pronouns that we prefer. Most people that live in the LGBTQI world are going to respect you when you ask them, "Which pronouns do you prefer?" That has become a pretty common thing to do.

   So if I have somebody come into my office and I really can't tell whether they want to be referred to as male or female or something in between, the first thing I do is I ask them their name. Now, if their name is Terry or something that could go either way, then second thing I'll ask them is, "Terry, which pronouns do you prefer that I use?" And then Terry will simply tell me whether it's he, she, or they, or whichever pronouns that they would prefer.

   So when describing transgender people, please use the correct term or terms to describe their gender identity. For example, a person who is assigned male at birth and transitions to a female technically is a transgender woman, but just refer to them as a woman, whereas a person who was assigned female at birth and transitions to male is a transgender man or trans man. But again, I would just refer to them as a guy.

   All right. So moving right along here, the term they. The term they really started to crop up about a decade ago. And in the Times, there was an excerpt in April of 2017 about the grammar difficulty with the use of the term they.

   But let's talk about the history of they. So grammar conventions are shifting just as quickly in these recent years, and efforts to introduce non-standard pronouns, some of which date as early as the 1850s, have generated a vast array of alternatives. None of the early ones took off, which included XE, ZE, PHE, ER, and OU. And then in 1884, several newspapers tried to make THON, T-H-O-N, happen. And increasingly, courtesy titles like mister and miss have to make room for novel varieties like Mx, pronounced mix.

   Today, many transgender people prefer the conventional he or she, but those who have adopted they, them, and theirs as personal pronouns have become much more visible. Both the Washington Post and the Associated Press in April of 2017 began permitting the singular they in their reporting on a case-by-case basis. In some cases, a reporter finds that a write around, like avoiding pronouns altogether and just using the person's name, is going to be more appropriate. Other times, the reporter confronts the terminology head on in the introduction or body of the article.

   If you want to follow a really good program, Billions has a great character who is referred to throughout the program as they. And the actors and actresses do an amazing job of using the term they correctly and appropriately throughout the program. So it's not that difficult, even though sometimes for me as an English major, I have a hard time wrapping my head around the they term. But once you start to incorporate it, think about if somebody was in your conference room and there was a cup or something left on the conference room table, and we would maybe say to somebody else in the conference room, "Hey, they left that cup there." Well, it was probably a singular person and it was probably a he or she, but we've used the term they in a general manner. So that's a really easy way of starting to accept how to incorporate the term they.

   So let me give you a case example that I had. I had Betsy and Bo who came into my office, and it was almost like a comedy routine, because Betsy was lesbian and identified she, but Bo was they. And so Betsy and Bo had been in an auto accident and I asked Betsy, "Well, who was in the car with you?" And Betsy says, "They were." And I went, "Oh. You mean Bo or do you mean Bo and anybody else?" And she says, "They were." And I said, "So it was just Bo." She says, "Yes, it was just Bo."

   And then I asked Betsy, "Was anybody injured in the car accident?" And she says, "Well, I was and they were." And I then said, "You mean Bo. Bo was injured in the car." And she said, "Yes." "Was anyone else injured in the car accident?," I asked. She said, "No."

   So you just have to basically come back to the person's name to get the best clarification when using the term they. Interestingly enough, in that case, Bo had been born female and had treated female throughout the case while in Virginia. And so all of the medical records referred to Bo as female. However, when Bo moved to Colorado, he was going through the transitioning process. And so at that point, the medical records started to identify Bo as male.

   In the case, I had to address with Bo that the claims adjuster, and this was probably about 15 years ago, was not going to fully comprehend me referring to Bo in the claim package as they. And I asked Bo if I could simply refer to him as he had treated previously, which was as a female. And so we had a good discussion about it. And I told Bo, "I'm not just not sure that the adjuster is going to comprehend the terminology of referring to you as they. Would it be okay, because you treated mainly as female throughout the case, if I referred to you in the claim package as female?"

   And Bo understood completely. He also didn't want to have any devaluation of his case due to the adjuster not comprehending the transgender transitioning process or the fact that he was transgender. So the key thing there is just to have an open and honest conversation with your client about how they choose to be referred. And sometimes, legally, it might be the case that you can't necessarily refer to them that way, or it might pose some problems with how the case is presented.

   So that Billion series, the character Taylor is the one that is they in the program. And I think watching that episode is a really great way of further understanding how to properly use the term they.

   All right. We're going to switch from gender identity now and talk about sexual orientation. So sexual orientation is a term describing a person's attraction to members of the same gender or different gender. Sexual orientation and gender identity, as we previously discussed, are completely different concepts. Gay is a term used to describe a male who's sexually and emotionally attracted to other males, also a generally descriptive term for gay men or lesbians. So gay can refer to lesbians as well. However, many lesbians prefer to be called lesbians and not gay. And of course, a lesbian is the term used to describe a female who's sexually and emotionally attracted to other females.

   Bisexual is a term used to describe a male or female who's sexually and emotionally attracted to both sexes. Questioning is a term used to describe a person who's unsure and is questioning their sexual orientation. Heterosexual or straight, of course, are terms used to describe persons who are sexually and emotionally attracted to persons of the opposite sex. Gender queer are people who do not ascribe to a binary notion of any sex or gender. And then asexual is a person with no desire for a sexual relationship with anyone. Sex just simply doesn't enter into the picture for them.

   All right. So let's go back to those potty mouth words where we want to wash our mouths out with soap, more words not to use. The term homosexual is an offensive term. While it regularly was used in the past, it's something to avoid now. Preferred terms are gay, gay man, or lesbian or gay person or bi, bisexual. Please use gay or lesbian describe people attracted to members of the same sex. Because of the clinical history of the word homosexual, it's aggressively used by anti-gay extremists to suggest that gay people are somehow diseased or psychologically or emotionally disordered. These are notions that have been discredited by the American Psychological Association and the American Psychiatric Association in the 1970s. So we do want to avoid using the term homosexual. Besides, gay is a much more fun term to use anyway.

   All right, another word not to use and that is offensive is sexual preference. What is preferred is sexual orientation or just orientation. The term sexual preference is typically used to suggest that being lesbian gay or bisexual is a choice, and therefore can and should be cured. Sexual orientation is the accurate description of an individual's enduring physical, romantic, and/or emotional attraction to members of the same and/or opposite sex and is inclusive of lesbians, gay men, bisexuals, as well as straight men and women. So sexual orientation is the preferred term. Sexual preference is the offensive term to avoid.

   Let's talk about more words not to use. Homosexual relations or homosexual relationship, homosexual couple, or homosexual sex, et cetera. Rather, the preferred terms are just relationship or couple, or, if necessary, gay couple or same-sex couple.

   In my practice, we typically refer to the same-sex stepparent adoptions as separately from the stepparent adoptions for a number of reasons. First of all, typically, our lesbian couples in a same-sex stepparent adoption have used a sperm donor and have a donor agreement and we don't really have a biological father's consent to obtain or rights to terminate. And so in the law office, there's a legal distinction for why we differentiate the two.

   I also give my same-sex couples a discount in an ongoing celebration of marriage equality as well. So there may be reasons to actually distinguish between a heterosexual couple and a same-sex couple. But if you can, just use the term couple. Also, characterizing somebody's relationship as a homosexual relationship or identifying their intimacy as homosexual sex is extremely offensive and should be avoided. Sex is sex. Relationship is a relationship. Why do we need to put any sort of characterization on that? So those constructions are frequently used by anti-gay extremists to denigrate gay people, couples, and relationships.

   As a rule, try to avoid labeling an activity, emotion, or relationship gay, lesbian, or bisexual, unless you would call the same activity, emotion, or relationship straight. So by way of example, would you say that, "Oh, those people there, they engage in straight sex," or, "Oh, those people there, they're a straight couple." No, we pretty much wouldn't be using those terms. So folks are either just a couple or they just are a couple that are having sex, as opposed to trying to define what type of sex.

   In most cases, your listeners will be able to discern people's sexes or orientations through the names of the parties involved, the depictions of their relationship, and also the use of pronouns.

   All right. Let's talk about more words that, if you use them, we may have to rinse your mouth out with soap. Gay lifestyle or homosexual lifestyle. What is preferred are gay lives, gay and lesbian lives, or just lesbian lives. But there's no single lesbian, gay, or bisexual lifestyle. Lesbians, gay men, and bisexuals are diverse in the ways they lead their lives. The phrase gay lifestyle is used to denigrate lesbians, gay men, and bisexuals, suggesting that their orientation is a choice, and therefore can and should be cured. Let's just use the term lifestyle. All people live, and they all live in different ways. And so using the term gay lifestyle or homosexual lifestyle is really offensive and not preferred.

   More offensive terms, admitted homosexual or avowed homosexual. What is preferred is openly lesbian or openly gay or openly bisexual, or simply they've come out. The terms admitted homosexual or avowed homosexual are dated terms used to suggest that somehow being gay is shameful or inherently secretive. And so that's a really dated term and one that we don't want to use. Instead, you just want to say that the person is out, for example, "Ricky Martin is an out pop star from Puerto Rico," or, "That person's come out," or, "That person is openly lesbian or openly gay."

   When we had our first juvenile court judge in the city of Richmond who came out and was openly gay, that was the terminology that was used. And it was great because we knew that there were other judges that were gay, but here was one that was willing to come out, along with his husband and their twins that they had through a surrogate who came to his initiation ceremony. And it was wonderful to be able to say that we had the first openly gay juvenile court judge in Virginia at that time.

   All right. More words not to use, and don't let anyone else in your office use. So fag and faggot. Of course, we know that a faggot is a bundle of sticks, but there's really no reason to ever use that term, because you can just refer to it as a bundle of sticks. So let's stay away from terms like fag, faggot, dyke, homo, sodomite, and similar epithets. These are derogatory terms that should be treated in the same manner as vulgar epithets used to target other groups. They should not be used except in a direct quote that reveals the bias of the person quoted. So that such words are not given any credibility in the media, it's preferred that reporters say, "The person used a derogatory word for a lesbian, gay, bisexual, or transgender person." So even reporters will not even use any of those words. They'll just refer to them as a derogatory term that had been used.

   All right. More derogatory language that we want to stay away from: deviant, disorder, dysfunctional, diseased, perverted, destructive, and other some descriptions. The notion that being gay, lesbian, or bisexual is a psychological disorder was discredited by the American Psychological Association and American Psychiatric Association in the 1970s. Today, words such as deviant, diseased, and disordered often are used to portray LGBT people as less than human, mentally ill, or as a danger to society. We simply want to stay away from all of those terms.

   More derogatory language. Don't use and don't let anyone else use. So associating any gay, lesbian, bisexual, or transgender people with pedophilia, child abuse, sexual abuse, bestiality, bigamy, adultery, or incest, or any deviant or antisocial behavior is just simply an absolute no-no. Being gay, lesbian, bisexual, or transgender is neither synonymous with nor indicative of any tendency toward any of those things. That's just ridiculous, absolutely ludicrous. Such claims, innuendos, and associations often are used to insinuate that LGBT people pose a threat to society, to families, and to children in particular. That's absolutely outrageous. In fact, most pedophiles tend to be straight.

   All right. Let's talk about polyamory. So per the Urban Dictionary, polyamory is a form of relationship involving more than two people. The relationships may be symmetrical like a triangle or something more complex. The relationships may also be open or closed, straight or gay, or a mixture. A purely heterosexual form of a polyamorous marriage was once practiced among the Tibetans. Each man had many wives and each woman had many husbands. This raises a possibility of your brother also being your husband-in-law, in-law. Try to diagram that one.

   So I just recently had a polyamorous situation where I had two women, both married to men, but they were in a polyamorous relationship. And the two women are attracted to each other and are choosing to have a child with each other. Unfortunately, under Virginia law, trying to structure the parental relationship for this child to be just as to the two women who do not want to divorce either of their husbands, but also not have the husbands on the hook for the child posed a pretty legal dilemma. Fortunately, one of my colleagues in California, where one of the women lives, was able to come up with a solution. And under California law, the two women can actually have a child together while staying married to their husbands. And an order of parentage can be entered as to the two ladies, leaving both of the husbands off the hook for being parents to the child. We're going to see more and more polyamorous relationships coming out in the open.

   And one of the articles that I wrote was a Law Review article called Mom, Mommy, and Daddy and Dad, Daddy, and Mommy, which is basically the focus on multi-parenting and the evolution of multi-parenting. More and more states and countries actually are recognizing three and four parents for children. And this is an evolving area of the law, which will continue to evolve.

   In one of my reciprocal IVF cases, where we had a gestational mother and a genetic mother, so the genetic mother contributed her egg to her spouse to carry the child, they actually lived with the sperm donor who contributed the sperm. And while he did sign a donor agreement and is technically not a father, he helps co-parent the twin children of those two women as well.

   All right. So let's talk a little bit more about polyamory. Polyamory, from the Greek, means poly meaning many or several, and the Latin amore, meaning love. It's the practice or a desire for intimate relationships with more than one partner, with the knowledge of all the partners. It's been described as a consensual, ethical, and responsible non-monogamy.

   So people who identify as polyamorous reject the view that sexual and relational exclusivity are necessary for deep, committed, long-term loving relationships. Those who are open to or emotionally suited for polyamory may embark on a polyamorous relationship when single, or they might already be in a monogamous or open relationship. Polyamorous arrangements are varied, reflecting the choices and philosophies of the individuals involved, but with recurring themes or values such as love, intimacy, honesty, integrity, equality, communication, commitment, and also respect.

   Confusion arises when polyamory is misapplied in a broader sense, such as an umbrella for various forms of consensual, non-monogamous, multi-partner relationships or consensual, non-exclusive sexual or romantic relationships. Polyamory is not being a swinger or belonging to a swing group. Polyamory is a much deeper, more meaningful arrangement where there simply is an arrangement where it's more than just two people. It's several people that actually are involved in a deep, romantic, caring relationship with each other.

   And I have this wonderful cartoon that I use sometimes where the one little boy is talking to the other little boy and he says, "Have you met my mothers?" And the one mother is a genetic mother and the other mother is a biological mother who could have been the gestational mother, and then the other mother is a social mother, again grasping this concept of having more than two parents.

   So when we talk about relationship building, we do want to ensure that we have an LGBTQI law friendly law office. And it's important to give the signal to potential clients and your clients that you are LGBT friendly. So the intake forms, examine your intake forms. Do they ask for the person's sex or marital status? If so, is that really necessary to the intake? If yes and it's necessary to the intake, is the wording in those forms appropriate? We want to make sure that we're only asking for their sex and for their marital status if it's important to the legal representation.

   Moreover, as we already discussed, if the sexual identity's not clear, but it's germane to the attorney-client relationship or it's germane to the legal proceedings, then you are going to need to ask straight up, "How do you identify? How are you on your birth certificate?"

   So I had a couple come in who were looking at doing an adoption together, and it was very clear that one half of the couple was female. She dressed female. The name she gave me was female. However, the partner with her was not clear to me how he or she or they preferred to identify. The person looked kind of male, but kind of female and their name was Terry. Well, Terry's a name that can go either way.

   So it was germane to the relationship, to the adoption proceedings for me to know the actual identity on the birth certificate of each individual. And so I simply asked Terry, "What is your gender on your birth certificate?" And Terry told me that the gender on the birth certificate was female. And I said, "What is the gender or the pronoun that you prefer to go by?" And Terry told me that the pronoun that she preferred was actually male. And so I said, with regard to the adoption at that time, same-sex marriage had not been recognized. I basically said, "Terry, will you be transitioning?," because at that time I could accomplish a heterosexual adoption, but I couldn't accomplish a same-sex adoption. And so it was important to the legal representation for me to know exactly how Terry identified and also if that might change over the course of the representation.

   All right. So you could also use the terminology, "Is that same gender on your identification document?" So you can ask them the other way. You can ask, "How do you identify in terms of your gender?" And then if you need to know how they identify it on their documents, you can say, "Is that same gender on your identification documents?"

   When we're doing name changes and gender change proceedings in our office, we do need to know exactly how the person is identified on their birth certificate, on their name change order, if they've gotten that, on their driver's license, on their passport, and on any other important documents. And so it's just germane to the arrangement, to the legal representation and easy to ask. The key thing is being respectful when asking the client those questions.

   All right. Other ways to make sure that your law office is LGBT friendly. Another one is to make sure that in your signature block, you make sure that you identify your pronouns and that they're in there. You can also even link to an article as to why pronoun identification is critical and include that website link in your signature block as well. Putting a unisex sign on any of the bathrooms, all gender restrooms, signify that the office is LGBT friendly. Putting materials in the reception in area, any magazines or anything that show the law office is the LGBT friendly also is helpful.

   I like to include at my law office a wonderful story about two of my clients who helped us get our surrogacy statutes changed a couple of years ago. And it's a wonderful story about their son and us getting Jacob's Law passed. And so I keep copies of those articles up front so that when people come in, not of course during the pandemic, but when people do come back into the office, that there are materials up there that make LGBT clients feel welcome coming into the office.

   Another thing is to look into your local groups, community groups. And for example, Equality Virginia in Virginia has a lot of different materials that can be utilized on a website and in signature blocks. So Equality Virginia has a badge that I use a signature block that basically says, "All are welcome" and references Equality Virginia.

   In addition, I've worked with Equality Virginia and the Family Equality Council and Center for Lesbian Rights on different materials. And one of the materials is a handbook that we use in Virginia for LGBT families. I also make sure that handbook is kept out in the lobby reception area.

   So you want to make sure that you add your LGBT friendly commitment to your website. You want to stay educated. You want to seek out and support LGBT resources. Join the LGBT Bar Association and join any Equality Bar Association in your state, as well as join Gat RVA or Equality Virginia or the state equivalent to make sure that you're staying abreast of what is LGBT friendly and what resources might be available to make sure that your law office appears LGBT friendly.

   So before we wrap up today, we're going to talk about how gender identity and sexual orientation discrimination are now protected in the workplace. And how did that happen? Well, the US Supreme Court decision in Bostock versus Clayton County, Georgia, which was certified up from the Eleventh Circuit, argued October 8th, 2019 and decided June 15th, 2020, was actually a combination of three cases on appeal.

   So what were they and what was the ruling and what led up to that? Well, let's take a look, because looking at these cases also gives us an idea of how to have a friendly work environment, as opposed to having an unfriendly work environment within the LGBTQI context.

   So the three cases were the Bostock case, but also the Altitude Express case, as well as the R.G. And G.R. Harris Funeral case. And we're going to talk about each of these cases.

   So the Supreme court in the Bostock ruling accepted the three cases that ask whether federal anti-discrimination laws, that is, Title VII, should apply to sexual orientation and gender identity in the workplace, putting the court on track to consider these high profile LGBTQ issues.

   So the cases were consolidated. Two of them were Bostock, along with Altitude Express versus Zarda, because both of those cases included claims that the employers discriminated on the basis of sexual orientation. A third case, R.G. versus G.R. Harris Funeral Homes versus EEOC involves the question of whether existing discrimination laws applied to transgender workers.

   So in the historic decision, the US Supreme Court ruled that the 1964 Civil Rights Act, which we refer to as Title VII, protects gay, lesbian, and transgender employees from discrimination based on sex. The ruling was six to three, with Justice Neil Gorsuch, President Trump's first appointee to the court writing the majority opinion, which was a great welcome for the LGBT community. The opinion was joined by Chief Justice John Roberts, and the court's four liberal justices.

   Gorsuch wrote, "Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. And the answer is clear. You found that such discrimination was barred by the language in the 1964 law that bans discrimination in employment based on race, religion, national origin, or sex."

   So in the quote from the opinion itself, Gorsuch wrote, "In our times, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There in Title VII, Congress outlaw discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions they would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

   So in the Bostock case, it came up from the Eleventh Circuit. It was Bostock versus Clayton County, Georgia. Gerald Bostock was a gay man who began working for Clayton County, Georgia as a Child Welfare Services coordinator in 2003. During his 10-year career with Clayton County, he received positive performance evaluations and numerous accolades. However, in 2013, Bostock began participating in a gay recreational softball league. And shortly thereafter, Bostock started receiving criticism for his participation in the league and for his sexual orientation and gender identity generally.

   During a meeting in which Bostock's supervisor was present, at least one individual openly made disparaging remarks about Bostock's sexual orientation and his participation in the gay softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed. Shortly afterwards, Clayton County terminated Bostock, allegedly for, "conduct unbecoming of its employees."

   Within months of his termination, Bostock filed a charge of discrimination with the Equal Employment Opportunity Commission, fondly referred to as the EEOC. Three years later, in 2016, he filed a pro se lawsuit against the county, alleging discrimination and based on sexual orientation and violation of Title VII of the Civil Rights Act of 1964. Wow. We're talking about somebody that is really persistent, who went for three years from the first initial filing all the way up to doing the action pro se, on his own, without a lawyer.

   So at the district court level, they dismissed Bostock's lawsuit for failure to state a claim, finding that his claim relied on an interpretation of Title VII as prohibiting discrimination on the basis of sexual orientation. And that was contrary to a 1979 decision holding the contrary. And that decision was in Evans versus Georgia Regional Hospital, an Eleventh Circuit case.

   So Bostock appealed and took it up to the Eleventh Circuit. The Eleventh Circuit, of course, affirmed the lower court and, in so doing, also noted some procedural deficiencies in the appeal. The Eleventh Circuit panel pointed out that it could not overrule a prior panel's holding in the absence of an intervening Supreme Court or Eleventh Circuit en banc decision.

   However, Bostock again was tenacious and persistent and took the case up successfully to the United States Supreme Court, thus entering a seminal ruling in the case and being the lead plaintiff.

   All right. So let's talk about the second case, the sexual orientation case of Altitude Express. This case came up from the Second Circuit, and that was an en banc holding involving a gay skydiving instructor, that was Zarda, who was fired because of his sexual orientation. He brought a sexual orientation discrimination claim under Title VII. The court basically held that, "Sexual orientation discrimination, which is motivated by an employer's opposition to romantic association between particular sexes, is discrimination based on the employee's own sex." That case was significant because it overruled two cases that expressly stated sexual orientation was not cognizable under Title VII. And Zarda, if you look at pictures of him, looks like quite an entertaining, enthusiastic skydive instructor.

   All right. So what was the third case? The third case was a gender identity case, and it involved a funeral home. So in that case, basically the holding was that the termination of an employee on the basis of transitioning or transgender status violates Title VII. In that case, Aimee Stephens, who her pronouns are she/her/hers, worked at the R.G. And G.R. Harris Funeral Home for six years. And she was terminated two weeks after she told her employers that she planned to transition to become a female. Her employer specifically stated that he fired Aimee because she would no longer dress or represent herself as a man.

   The EEOC investigated, and they brought charges against the funeral home for terminating Stephens on the basis of transgender or transitioning status and discriminatory clothing allowance policy. The district court granted summary judgment for the funeral home against the EEOC on both counts, using the Religious Freedom Restoration Act as their reasoning. The Sixth Circuit then reversed the district court, citing that discrimination based on Stephen's gender expression and transitioning status was sex-based discrimination.

   The Sixth Circuit said that Stephen's employer had fired her because she wanted to dress and identify as a woman, which falls under sex discrimination, and discrimination against trans individuals is based on sex. The Sixth Circuit said that title VII was intended to "strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes," which includes any discrimination based on gender or perceived gender.

   The court went on to say, "Discrimination based on a failure to conform to stereotypical gender norms" was no different under Title VII than discrimination based on "the biological differences between men and women." The court then went on to say that "it is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex."

   So what other cases led up to these three cases being selected for the Bostock ruling by the United States Supreme Court? Well, these other cases, these precursor cases are also important to look at in order to evaluate how discrimination, especially LGBT discrimination, can permeate a workplace setting.

   So there was a split basically in the circuits that prompted the US Supreme Court to take up the rulings of Bostock and the two other cases. But let's look at a couple of other cases that were in the works as well. The Glenn versus Brumby case, which was an Eleventh Circuit 2011 case, had a holding that the termination of an employee based on their gender transition, transgender status, or bathroom concerns constituted sex-based discrimination in violation of the Equal Protection Clause of the US Constitution. So that wasn't based on Title VII, but on the Equal Protection Clause.

   And in that case, Vandy Beth Glenn, who identified with her pronouns she/her/hers, worked as an editor for the Georgia General Assembly when she notified her bosses she was going to transition to become a woman. She was terminated because her boss thought it was inappropriate and would be disruptive to the workplace. Glenn sued for discrimination under the Equal Protection Clause, stating that she was discriminated against because of her sex, female gender identity, and failure to conform to sex stereotypes.

   The district court granted summary judgment in favor of Glenn on her sex discrimination claim and the Eleventh Circuit affirmed. Using Price Waterhouse and the case of US versus Virginia, the Eleventh Circuit linked discrimination based on transitioning and being transgender to discrimination on the basis of gender-based behavioral norms. The court said, "An individual cannot be punished because of his or her perceived gender nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual."

   Let's look at another case out of the Sixth Circuit. So this is the case of Barnes versus the City of Cincinnati, and it's a 2005 case. The holding in that case was that the termination of an employee based on her gender transition was sex-based discrimination under Title VII. Felicia, whose pronouns were she/her/hers, began to transition from male to female while working for the Cincinnati Police Department. She lived as a man on duty and as a woman while off duty. Barnes was told that she did not appear masculine enough at work and that she lacked a commanding presence. She did pass a promotional test to become a sergeant and started a probationary period, which was standard policy. However, she was demoted at the end of the probationary period. She challenged the demotion under both Title VII and the Equal Protection Clause.

   The jury ruled in her favor, awarding her $320,511 in damages. The Sixth Circuit upheld the ruling, stating that sex stereotyping based on a person's gender nonconforming behavior is impermissible discrimination under Title VII.

   Moving right along, let's look at another Sixth Circuit case. This was a before in 2004, the Smith versus City of Salem case. The holding in that case by the Sixth Circuit was that the termination of an employee based on her gender transition constituted sex-based discrimination under Title VII. In that case, Smith was a firefighter who was born male, but started to identify and express herself as female. Her coworkers and supervisors stated that her actions and mannerisms weren't masculine enough, and she was suspended for an alleged infraction of policy.

   The district court dismissed her claims, stating transgender discrimination was not available under Title VII. Fortunately, the Sixth Circuit reversed and found that Smith had a prima Fosse case for sex discrimination under are Title VII. That was actually the first time that the Sixth Circuit or any circuit hinted that gender identity discrimination could be claimed as sex discrimination. The court relied heavily on Price Waterhouse, saying sex stereotypes are considered discrimination under Title VII. The court said, "Employers who discriminate against men because they wear dresses and makeup or otherwise act femininely are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex."

   I've had my own case in the Fourth Circuit, which unfortunately came forward before the Bostock ruling. And in that case, our client Dina Persico, she worked as a school teacher in Chesterfield County. And she was in a lesbian relationship, well, marriage with her wife. And the way that she dressed and the way she presented was very masculine. The case did settle, but unfortunately we didn't have good law at the time. Had the case been brought after the Bostock ruling, we would have had clearly established law. But at that time, the Fourth Circuit had no case law that recognized either sexual orientation discrimination or gender identity discrimination.

   So let's talk about another case, a 2013 case, that also led up to the Bostock decision. And that was an EEOC opinion of Baldwin versus Fox. And that was the first time the EEOC held that sexual orientation discrimination could be seen as sex discrimination. The decision involved an air traffic controller who was not promoted to a permanent position because he was gay. The EEOC held that an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII and that Title VII prohibited employers from using gender or sex-based considerations in employment actions for sex discrimination.

   Another case leading up to the Bostock ruling was a case out of the Seventh Circuit, a 2017 case of Hively versus Ivy Tech Community College of Indiana. That case involved a lesbian part-time adjunct professor who was repeatedly denied promotions, which she believed was related to her sexual orientation.

   The court held that sexual orientation discrimination was a subset of sex discrimination, and they actually used a Fourth Circuit case out of my own territory, which was the Oncale case, a case which involved male-on-male sexual harassment, to prove that sex can be interpreted to mean sexual orientation.

   Unfortunately, the Fourth Circuit at that time, up until the Bostock ruling, still did not clearly recognize sexual orientation or gender identity as protected discrimination under Title VII.

   All right. And as we wrap up here, let's talk about the Ninth Circuit Franks versus Santa Anna case, which was a 2018 case that involved a lesbian police officer who was forced out of her job based on her sexual orientation. The court didn't rule on the merits of the case, but said the lower court was wrong to not allow the case to go before a jury and remanded it. This indicated that the Ninth Circuit was open to the idea that sexual orientation discrimination was cognizable under Title VII.

   So basically, with all of these cases coming forward with different rulings, the timing was ripe and prime for the US Supreme court to take up the Bostock case along with the Zarda versus Altitude Express and the funeral home case. And fortunately, the decision came out favorable for members of the LGBT community.

   So as we wrap up here, I just want to say that I very much enjoyed you attending this program today. And thank you so much for Quimbee for allowing me to present today on LGBTQI&A cultural competency. Thank you.

 

Ashley Carter - Hi and welcome to Creating Justice For All: Engaging in Pro Bono Representation. My name is Ashley Carter, and I'm a supervising attorney at the D.C. Volunteer Lawyers Project in Washington, D.C., where I supervise pro bono attorneys who represent our clients in our domestic violence practice. I'm really thrilled to be here today speaking with you about pro bono, about how to get engaged in pro bono. And I hope that after this presentation, that you'll feel like you are ready to dive into the world of pro bono yourself. In terms of the learning objectives for today, following this presentation, attendees will understand the necessity of and the great need for pro bono representation. They will recognize the applicability of ethics rules to pro bono cases and they will identify strategies for successfully representing a pro bono client.

So first, let's start at the beginning: why are we engaging in pro bono? Why is this something that we are asking attorneys with busy, busy schedules to take on as extra work? I think first and foremost, we have a professional responsibility to serve others as lawyers. We've been told from day one of law school, that lawyers are special. Lawyers are held to a higher standard than the rest of the public and that is for good reason, because we are in charge of a lot of responsibility and we have a great responsibility as leaders in our community to serve others. We have special skills that no one else has. When a layperson walks into a courtroom, they don't have the skills necessary oftentimes to engage in a court process. But lawyers do, because we've spent years being taught, how to think like a lawyer and we've spent years preparing to be good lawyers.

We also know that litigants without representation are uniformly less likely to succeed in their case. And that's regardless of the merits of the case. If you are a litigant who does not have knowledge of the legal system, you are simply less likely to succeed in your case. And I think that any lawyer listening to this can imagine why that would be true. We spend years preparing how to research the law and how to prepare for a trial. How to understand what the rules of evidence mean, what hearsay is and all of these skills that we've built over the course of years, are skills that lay people do not have. And we rely on judges to sort of sift through and figure out what the right answer is in a case. But we need someone to be able to make the argument on behalf of someone else. The judge can't make the argument for you and so we are really sending people to a huge disadvantage when we send them into court without an attorney.

Now, in addition to just the professional responsibility that we have as lawyers, there are also a number of bars that have certain requirements to maintain good standing with the bar that are related to pro bono. I can't go over every state of course, while we're here, I think New York is a good example of a state that has imposed pro bono requirements on its members. And I do wanna point to the American Bar Association's model rule 6.1, which discusses the professional responsibility to engage in pro bono and the model rule states that every lawyer has a professional responsibility to provide legal services to those who are unable to pay. A lawyer should aspire to render at least 50 hours of pro bono legal services per year. It also states that every lawyer, regardless of professional prominence or professional workload, has a responsibility to provide services to those unable to pay. And it can be one of the most rewarding experiences in the life of a lawyer. I know that I've certainly found that to be true and my volunteers have certainly found that to be true.

So what is the need among those who do not have access to legal representation? We all know that there is sort of a crisis ongoing in this country in terms of the need for legal services. Anyone who practices in a courthouse can tell you that there are so many people who do not have access access to an attorney. And according to the legal services corporation, 71% of all low income households nationally, experienced at least one civil legal need over the year 2017. 2017 is a year where a lot of reports were released. And so I have access to the data on that, but I think that anyone can tell sort of from an anecdotal perspective that over the course of the past few years, due to the COVID 19 crisis, this has increased exponentially. So for the year 2017, for most of the people in that 71% who identified that they had a legal need, at least one of those problems had a sever impact on the lives of most of the people who responded to that survey. So it's not just that they had a legal need, but it was something that they felt significantly impacted them. And it's not hard to imagine the things that that could be right? That could be the threat of eviction from their home, losing the place where they live, that could be a disconnect from public benefits that was wrongfully done. And so they no longer have access to that significant source of income. It could be a domestic violence issue where someone is trapped in a home where they are not safe and where they could lose their life.

And so these are significant problems that people are having. The need is different everywhere. It can differ or based on what state you're in, whether you're in a rural area or in a big city, but I'm going to use the District of Columbia as an example, just because I practice in the District of Columbia and the District of Columbia has an access to justice commission who regularly issues reports on the state of access to justice. In their 2019 report, they stated that for the year 2017, the following were the rates of pro se or unrepresented participation in court. 97% of plaintiffs in small estate matters in probate court had no legal representation. In domestic violence court, 88% of petitioners, those are people seeking a protection order and 93% of respondents in domestic violence court. Those are the people against whom an order of protection is sought. Those litigants at 88% and 93%, did not have representation in court. In family law cases, 83% of plaintiffs, the people who filed the case and 93% of defendants, the other party to the case were unrepresented in family court. And finally, 88% of respondent in the landlord tenant branch were unrepresented. Those are the people against whom an eviction is sought. So 88% of people against who human eviction was sought, had no legal representation, That is compared to 95% of plaintiffs in those cases who were represented. So 95% of people who were seeking to have someone evicted were represented by an attorney and 88% of the people against whom those evictions were sought, had no access to an attorney.

So we should be concerned about that. We should really have to question whether there is a fundamental fairness problem happening in our courts when so many people represented on one side, but not on the other side. And that's something that we really need to be thoughtful about as attorneys and people who care about the fairness of our courts. So now that we know sort of what the need looks like, and that there is a significant need, what do we need to consider before taking on a pro bono case? Many people come to me and say, they feel they are not competent to take on a pro bono case.

So I wanted to go through and give some, some perspective on what the ethics rules require of competence and why I think that even if you do not practice regularly in these fields, you can be successful in assisting someone. So for the purposes of this presentation, I'm going to use the American Bar Association model rules on professional responsibility, but you should check what your state requires. Obviously, every state has different ethics rules. So for the purposes of this, I'll be using the model rules.

And we start with competence. Model rule 1.1. A lawyer shall provide competent representation to a client that requires the legal knowledge, skill, thoroughness, and preparation that is reasonably necessary for the representation. So we understand you must be competent in order to represent any individual in court, that is an ethical obligation that attorneys have, but the commentary to that rule and to many of the rules is explicit that the knowledge that is required is that of a general practitioner, a general attorney. And there is no need to be a particular expert in a field. Competency, additionally, the comments note, and I think the comments to many states ethics rules note that you can obtain competency through training and supervision. So it's not necessarily expected that when you take on a pro bono case, that you will immediately be an expert in that field. And there are a number of programs across the country through bar programs or programs at local legal aid organizations that will train individuals to take on pro bono cases. And that will supervise your pro bono case such that you are not alone in trying to understand what the law says and understanding what the local practice might be in your courts. I think it's incredibly important for us to recognize that competence is something that we need to be aware of, right? We never want to enter a situation where we're doing more harm than good, but I don't think that in most cases, that will be what happens in a pro bono case, right? If you care enough to take on a pro bono case, you probably also care to do the research, to sit down and understand the law. And in many cases, it's a very, as the rule said, general level of knowledge that is required. All of us who went to law school and passed the bar are capable of understanding what the law says, are capable of going in and reading the statutes and reading the cases and really figuring out what the law says. So I do think that competence is important. It's certainly an ethical obligation, but it's not something that you need to be an expert in, in order to take a case.

Now, the other consideration that we have here is diligence. And again, I'm gonna be citing too the American Bar Association's model rules. So diligence is model rule 1.3. And that states that a lawyer shall act with reasonable diligence and promptness in representing a client. So as with any legal client, you must be diligent in working on the client's case. And that's true, even if your other cases have pressing deadlines. So I sometimes hear from people that they are scared that because they have so many other cases and so many other obligations, they wouldn't be able to be as diligent in their pro bono cases. And it is something that we are required to do, right? We are ethically bound to be diligent in all client matters. I think that the best way to sort of get around this is to treat this case just as if this client is paying you, or just like any other case that you have. So create deadlines the way that you would for any other case, spend the same amount of time that you would on any other case and ensure that your client is kept informed, just like any other case that you have. And I do think that there are of course, separate ethical considerations on communication and the obligation to communicate with your client. You should absolutely check the rules that govern your jurisdiction to make sure that you are following whatever is required in your jurisdiction. But overall, I find that if you just think of this as any other case, and don't think of it as a separate kind of case, you're more likely to treat it the same way you would any other case, right? Setting deadlines ahead of time, scheduling in time to work on the case And so, as long as you are able to do that, you should be meeting your ethical obligations of diligence.

So in terms of the best way to get started in engaging in pro bono. There are so many opportunities out there to get engaged. I think you can start with your local bar association. There are often local programs that have training or are partnered with a local nonprofit or legal aid that are really great ways for an attorney to get started. And particularly because you are presumably a member of your local state bar. There are excellent opportunities through the state bar to get trained on any number of pro bono matters. Now, there are often local organizations that will offer supervision of pro bono cases and help to answer subject matter questions. And that's the model that the D.C. Volunteer Lawyers Project uses. But I also know there are a number of other organizations that use the same model.

So in terms of supervision, you're just handed a case and told that you're responsible now. If you partner with a local legal aid organization or pro bono organization, you are going to have access to a subject matter expert who will be able to sort of walk you through exactly what the state of the law is, exactly how the court operate locally. What kind of judges you should be expecting to hear your cases and those supervisions and supervisory, positions are really, really helpful to somebody who's just getting started in pro bono. Now over time, as you sort of get used to pro bono and maybe if you take multiple cases in the same subject matter area, you may not need as much supervision anymore, but it is always available. And particularly if there's a sticky legal issue that comes up, or you have questions about exactly what you'll be expected to prepare.

I recommend really looking into the availability of those sort of mentorship or supervision programs for pro bono. There are often local referral systems for pro bono representation. So if you are looking for a pro bono case, there may be local list serves that you can sign up for that are specifically looking for a certain kind of attorney or there may be larger list serves that are sending out any kind of pro bono representation. I also encourage people to, if you're a member of a law firm to sign up for your law firm's pro bono list serve, because oftentimes there will be opportunities that go out on those list serves and those opportunities can also often be supervised by a partner at the law firm or by a committee at the law firm that may also be able to offer you some advice or some supervision.

Now, if for some reason, none of those options work, the American Bar Association also offers opportunities that are nationwide. They offer virtual legal clinics that are available for somebody either by phone or online, so that you are able to sort of give legal advice virtually. And those have really proliferated over the course of the COVID 19 pandemic. And I've found that they've been incredibly helpful to people. It's also a model that we have used at DCVLP to engage volunteers throughout the pandemic. And it was actually very successful. We were able to get people into the virtual legal clinic. We were able to have people on Zoom so that they could be face-to-face with the person who was giving them advice. And it was a limited scope representation, right? So it ended that day. It was not a representation for court for the next three years. It was, I can sit and give you some legal advice today.

There are also legal hotlines in particular, the American Bar Association has hotlines set up whenever there's a natural disaster that I found can be really great pro bono opportunities. So if you check the American Bar Association website, you'll see opportunities through the disaster legal services, which are really focused on specific areas where something like a tornado or a hurricane has occurred and now individuals need assistance dealing with the aftermath of that disaster. So all of those are really outstanding opportunities for people to get engaged in pro bono. Now, many people ask me what if I'm not a trial attorney and I've never done this before. A lot of people feel that they're not competent because they are not trial attorneys because they aren't really familiar with the court process. And I just like to say that many pro bono cases don't require a trial. They don't require you to go to court at all in some cases. There are a number of transactional pro bono opportunities. And I've noticed that this is something that law schools and other legal programs have really tried hard to increase opportunities in recently or transactional pro bono opportunities.

So there might be opportunities to work with small businesses to create charters or articles of incorporation. And this is particularly, I've noticed, available in larger cities. So in the D.C. Metro area or the New York Metro area, there are often a number of opportunities to work sort of in transactional pro bono. So if you don't wanna go to trial or you feel that you're not competent to do that, you know, you can engage in sort of these transactional pro bono opportunities. In addition, immigration cases often don't require a court appearance. In many cases, there's just an application that's required, but you don't have to go to court. There's no trial. And so you're just sort of waiting to hear back on an application or working on submitting an application. So in those kinds of cases, I think it can be really useful to have a lawyer, but it's not necessarily the kind of case where you would need to be ready to go to court or make a court appearance on behalf of your client.

One option that I really love is assisting in legal clinics and that can be a number of different opportunities, but it's usually a one time limited representation that might involve giving brief advice to a client. It might involve drafting pleadings or applications. So oftentimes for example, in our clinics at D.C. Volunteer Lawyers Project, we will have someone come in who has a protection order case and they know that they need to get legal representation, but they don't have time before their hearing. So for example, in the District of Columbia, you file a case and then two weeks later your trial data set. So that's not a lot of time to find an attorney. So we often have people coming into our walk-in legal clinics who know they would like to get an attorney, but only have two or three days before their trial. And so we might help them draft a motion to continue while we're sitting with them and tell them, you can either, we might file it online through the courts online filing system, or we might be just handing them a piece of paper and saying, take this to the court and file it. And it's a handwritten motion to continue. Or we might have someone who has a trial coming up in, you know, two weeks. We're not gonna be able to take that case on for full representation because that's just such a quick turnaround, but we can help them understand, this is what a judge is going to ask you. This is how a trial works. And just being empowered with the knowledge of what is an opening statement. What is the judge going to ask you to do on your direct examination? What is a cross examination supposed to look like? Those are things that can be really helpful to a client just to understand the base level structure of what a trial looks like. And that's advice that you can give without ever signing a retainer, without ever having a client meeting where you sit down with a client.

Those can really happen, in very small amounts of time during a walk-in legal clinic. You might also assist with things like a brief services retainer agreement. So sometimes you can enter into a very, very limited representation that will still help a client accomplish the client's goals in that short amount of time that may not require you to go in to court. So for example, sometimes we will say, we're going to sign a limited retainer with a client for the sole purpose of filing a motion to file for alternative service in a case. So the client is having trouble serving someone with the paperwork and they need help filing a motion to serve someone via an alternative method. We might engage in a limited brief services, retainer agreement, draft the motion for that client, help the client understand, what's going on in terms of the legal procedure, file the motion and then withdraw from the case. Because at that point we've completed our brief representation. We will never need to go into court to do that. We are just giving the client advice and assisting with that pleading, but we don't actually have to be in court for the results of that pleading, right? So there are some times that a limited representation will help accomplish the client's goals and really put them in a better position to move forward with their case. And those things don't require necessarily for you to go to court.

You can also, as I mentioned before, assist with a legal issues hotline or an online legal resource, things like the American bar association's free legal answers program, the lawhelp.org program or the ABA disaster hotlines as I mentioned. Those are very, very important opportunities for you to engage in pro bono that really, really look like brief services. They don't require you to go into court. And I really wanna stress that these can make a huge difference in a client's life. Just being able to get in front of a lawyer, sit down and tell their story and figure out what the law says and what advice you would give them. That can be huge for people. And so I don't want anyone to come away from this thinking that just because you aren't going to court, that you aren't able to make a difference in someone's case.

Now, additionally, there are many organizations that do provide training to attorneys in their pro bono programs. So for example, you might find a program that offers mock trial practices. This can really be helpful to make you feel comfortable going into court, right? If it's been a while, since you've been in a courtroom or you haven't done a mock trial since law school, but you've taken on a pro bono case, I highly recommend reaching out to whoever's supervising your case to see if you can engage in a mock trial. There are often trial preparation workshops that are conducted by the attorneys in pro bono programs or by nonprofits, highly encourage you to look into those. There are also sometimes voluntary bar associations that will also have trial preparation workshops. So maybe it's and you know, a local organization that would normally train attorneys at law firms who are just getting started. You can enroll in those workshop and get started on trial preparation and learning that way. And finally, as I mentioned, many organizations do offer supervision from their staff attorneys, for individuals who take on pro bono cases. So they're maybe like mentoring relationships that you can have with a supervising attorney who is more knowledgeable about the subject, matter of what you're engaging in or more familiar with the court who can give you some practical advice and tips whenever you have something come up in your case. And so you're not alone. There's usually someone who is going to be able to give you some advice about what your situation is. And so even if you are not a trial attorney by day, I hope that this has made clear that there are ways for you to sort of get up to speed on what a trial looks like and how to engage in a trial or you don't even have to take on an opportunity that requires you to go to trial.

So in terms of pro bono, some practice tips that might help you going forward. I just wanna offer some thoughts on when you take a pro bono case, how should you approach it and what should you be thinking about when you first work with your client? I think the most important thing that you can do when taking on a pro bono case is approach your case with a poverty focused lens. And what I mean by that is that you should try to put yourself in a position where you are not just thinking through whatever legal issue is going on, but really think about what barriers exist for this client who lives in poverty and who needs to access the justice system somehow. What are the things that are going to get in that client's way of accessing justice? And what can you do to be thoughtful about taking on those challenges and making sure that they won't impact your client? I think one that has really popped up a lot, particularly over the last year, two years, even during the COVID 19 crisis, as courts have often switched to a model that relies on internet access or calling into court. Many clients in poverty, lack consistent internet access or access to cell phones. What do you do when your client doesn't have the internet? What you do when your client can't call in so ways to sort of think about this. Can you make arrangements for the client to access the internet? Oftentimes your client will be pretty familiar with the resources in their area. Can they go to a library that's local? Can they go to a public school and access the internet in the parking lot? There've been a number of hotspots that have been set up due to COVID 19. Maybe they know where a public hotspot is.

If your client doesn't have access to technology, they don't own a laptop. They don't own a tablet or a smartphone, can they meet at your office? Can you go in and give them an extra laptop? Can you bring them in and have them sit in front of the computer with you? If there's a virtual hearing, can you provide access to the technology that's necessary for the client to come in? And you know, this applies also to a time when your client may need to have a client meeting with you and doesn't have access to the phone, which is normally how maybe you interact with clients, you know can you make yourself available in your office? Can you hold this meeting in person rather than by phone, if that would make it easier for your client to access you and make it more likely that your client will actually be successful. Can you be creative about how your meetings take place?

I think that priorities are something that we as lawyers sort of maybe struggle to understand how people who are not in our circumstances or in our shoes might have different priorities than we do. And that's something that's common to everyone, not just attorneys, right? It's hard to understand what other people's priorities are compared to ours, but a client who can't feed her child may not prioritize your call or your trial preparation, the same way that a client who lives in comfort would. And so just be thoughtful. When you're trying to reach your client and you can't get in touch with her, she says, oh, I've been busy. I can call you back later. And it may be frustrating and it may make things more difficult for you, but it may also be frustrating for the client that she's trying to accomplish something else. She might be applying for housing that day or trying to get her public benefits turned back on or trying to travel to a shelter that's 20 miles away from where she normally lives. But it's the only place she can go. The call that you're making or the court case might not be the top priority at that moment. So I suggest giving your client not just one day or time when a call might work, but giving a range of options for times for a call and being patient if they don't get back right away, right?

Be patient with your client, give them the time that they need in order to get things done and understand that sometimes priorities are different for clients living in poverty. Lack of access to privacy for calls oftentimes this is an issue specifically for our clients who live in domestic violence shelters or are staying there. This might also apply to a client who's homeless, or who's staying with their friends, or who's staying with family temporarily. So maybe your client's been evicted. Maybe your client was homeless to begin with and they don't have privacy. We all know that as attorneys, if a third party is present, while we're talking to our clients that that violates client confidentiality, attorney-client privilege, and that that can be a really a dangerous thing to do. And so we often warn our clients, don't have anyone around, be by yourself, but for some people that's just not possible. Particularly if you're staying in a shelter, it's very hard to find privacy. So can you meet your client at a library? Can there be, a meeting room where you can go in and shut the door, a community center, somewhere with privacy and think through whether that place is accessible just to you or also to them. So that means thinking through where does my client live? Okay, how long is it gonna take them to get to this location? What if I don't have transportation as a client? How do I get there? So it's really important to think that through and pick somewhere that they can get to, and that is accessible to them.

So in addition, as I mentioned, lack of access to transportation can be a really big barrier to our clients. Sometimes people can't get to court because they don't have a car. They don't have access to the money that would be necessary to get on the bus or to get on the train. So they don't have a way to pay for transportation. How do we address that? Can you help the client make a transportation plan ahead of time? So maybe they call a friend and ask to have them take them to the courthouse or get a ride. Flag the issue early on, because that is going to be something, while we can't pay for client's transportation, we can't give our clients gifts. We can't get financially involved in our clients' lives. We can help flag for them. We know that you will need to be at the courthouse at 8:30 on this day. Can you go ahead and tell me what your plan is for getting there? Because we wanna make sure that we are flagging it for the clients that they're also thinking about it ahead of time. Can you waive the client's presence when it's maybe not necessary? If the client doesn't need to be there for a pretrial conference, the and ask the judge, if we can excuse the client's presence and sort of make the court aware. It's very difficult for my client to get here. My client doesn't have access to the transportation necessary to get here. And oftentimes the court will be understanding of that, if it's truly a situation where your client doesn't need to be there, I find that judges are pretty good about excusing their presence.

Lack of access to childcare. I feel like this is a really big issue that we really don't discuss as much as we should. There are often times, and particularly during the COVID 19 pandemic, there are times when our clients simply have no one else to take care of their children. And this is something that's particularly present in domestic violence cases. Often times when my clients reach court for trial, their abuser is the other person who helps them care for the child. And they haven't spoken because there's a protection order in place. And that person can't help them with childcare. And it's dangerous for that person to help them with childcare because there's abuse taking place, right? We may have children who are too young for school. Your client may have an infant who can't go to daycare and the ability of the client to find childcare prevents them from getting to court or from getting to court in a meaningful way. Many people have to bring their children into court, and that can be very disruptive and very distracting to the court. And there are some courts that just don't allow it. And so in that case, can the client access a courthouse program? These are more common I've found in larger cities. Not every court has the option for this, but there are programs in many courts that will provide access to childcare, or can you make a childcare plan ahead of time? Can you say, okay, I know that we have a hearing three weeks out. Can you assist me in telling me who exactly will be taking care of the child? Can you go ahead and make a plan for that? So that by the time we get to trial, we already know exactly where the child's gonna be. And that way, it sort of signals to the client ahead of time. This is something that we need to be thoughtful about.

So hopefully going over, some of those issues has been helpful to understanding how do you think about the barriers that might exist for your clients when you're taking a pro bono case. And obviously there may be other barriers that I haven't mentioned here, just depending on someone's situation. Maybe you have a client who's incarcerated, but also has a civil legal need. And you've been assigned to represent them pro bono, or maybe the are some other barrier that I haven't mentioned here, being thoughtful about how you as a lawyer can utilize the resources that you have can be creative about coming up with solutions so that you do make sure that your client has meaningful access to the courts and meaningful access to justice. That's really what we're trying to accomplish here.

So in terms of developments in pro bono, I'd just like to discuss some of the newer models for pro bono and why I think they're important and effective and how they can help engage pro bono attorneys. So, as I mentioned earlier, the COVID 19 pandemic has really shifted the way that we as attorneys address pro bono and how to really get access to legal services to the people who need it most. And because during the COVID 19 pandemic, we couldn't do much in person, many legal service providers switched to these virtual pro bono opportunities. And I've found that they've been very, very successful. So many places adopted a virtual clinic or call in clinic model due to COVID 19. And there are many places that had call in legal clinics prior to the pandemic. I don't want to say that this was just a pandemic influenced development, but I think that they've really proliferated over the last few years because of the pandemic, the virtual clinic models usually are done via something like Zoom or Skype or WebEx, if you're familiar with any of those platforms. And then there are call-in clinic models, which are obviously based in phone. Now, of course, that removes certain barriers to access in that if you do have a lack of transportation or if you, you know, don't have access necessarily to get to the clinic on the one day that the clinic was operational before during a walk-in clinic, virtual clinics are often able to be held more often or call in clinics are able to be held more often, and they don't require you to go to a specific location. So that does remove certain barriers to access.

It also reduces, as I mentioned, the need to coordinate transportation or childcare, and those are some factors that it really can prevent people from being able to access legal services, if they don't have transportation to get to a legal clinic, or they don't have the childcare necessary to be able to sit down and have a meaningful conversation with their attorney. So I do think that the benefit of these clinics is that they really reduce all of the barrier years that we just discussed. It also reduces the overall time spent on accessing legal services, running these walk-in clinics can be complicated. It can be logistically complicated. It can take more time. And as you know, this mentioned before, was the transportation and childcare. It can just take so many factors to get somebody in a place where they can walk in, sit down and take the time to receive legal advice. So this reduces the overall time that the client spends taking out of their day to sit down and get legal advice.

It also increases the accessibility for pro bono attorneys. Often times, pro bono attorneys don't have the time either to transport themselves to a legal clinic across town to take time out of their busy day, to commute, to wherever they need to be. So this increases the accessibility for pro bono attorneys who can instead, you know, take a call from their office or from their home or wherever they happen to be. So I think that the virtual pro bono model has been really helpful actually, for a number of pro bono attorneys who didn't feel that they had the time necessary to engage in pro bono. And finally, this increases access through multiple access points. So you might be able to say, we have this walk in legal clinic, but we also have this virtual option, or we also have this call in option, so that you're really creating multiple access points. You're not just creating one option, you have multiple options. And that really increases the ability to get those services to the people who are most in need and to get them to them quickly.

So in terms of pro bono, the last thing that I'd like to discuss is sort of the newer developments in pro bono and how I think these can make a really huge difference, both for legal professionals and for people who really are in need of services. And that big development is the non-lawyer pro bono opportunity. So law clerks, legal assistance, paralegals are all legal professionals who have training, who have expert knowledge. They may not be attorneys, but I think we can all say that our legal assistance and paralegals and our law clerks really do have a lot of the skills necessary to give advice and give some of the assistance that we're talking about. So in many states, there are these new efforts underway to sort of open up opportunities for non-legal professionals who do have this kind of expert legal knowledge or expert legal skill to still assist clients. And so many legal aid organizations are developing programs where paralegals or law clerks could assist clients with brief matters under the supervision of an attorney.

So we're not suggesting that non-lawyers are really able to provide the direct legal services, but they are able to assist with matters under the supervision of an attorney. That really enlarges the opportunities for legal assistance for people who can't afford any kind of services, having a paralegal, help you fill out an application or fill out a form, that is sort of done in regular course of business, still gives that client access to more expertise and more knowledge. And it doesn't cost sort of the same amount that it would cost to go out and find an attorney. And this approach was endorsed by the American Bar Association's Commission on the future of legal services. I think that there's an understanding that, as we sort of progress forward and the law becomes more complex and court cases become more complex, we really need to figure out different ways of assisting people. And so this is part of the future of the way that we will be offering legal services to people in the future. So I really encourage attorneys to consider those opportunities that might engage their legal staff in pro bono opportunities.

So for example, at DCVLP we have a project that allows paralegals and law clerks to assist clients with filling out a petition for a civil protection order under the supervision of an attorney with all sort of finalizations made by an attorney. But that attorney has then more capacity to sort of review applications that are filled out by different paralegals or different law clerks. So there's more capacity in terms of the services that we can offer the client because we're to leverage our services better by having the attorney review the work. So in cases like that I think that this can be a really, really valuable tool to give more access to justice, to give more access to legal services and advice from somebody who has more experience than a pro se litigant would and can really be very valuable to those in need. So while we are attorneys and we sort of want to protect our ability to be the providers of legal services and we know that our specialized training really does make us the best people to give legal services, we can leverage our own supervision and our own staff to sort of still ensure that clients are able to access some kind of assistance, even if we don't have the capacity as an attorney to give them a direct representation or a full representation in a case.

So in conclusion, I think that this is a new development that we really will be seeing more of and is a unique opportunity particularly for larger law firms to get their paralegals and their law clerks involved in helping others.

So now that we've discussed sort of what the pro bono field looks like and why it's important to do pro bono work, I'd love to be able to walk you through some sort of tips for actually engaging in a pro bono intake and walk you through how you might handle an intake, handle issue spotting and sort of analyze what you need to do as next steps. And also help walk you through some of the tips that we've discussed about considering your case through a poverty informed lens.

So we'll start with tips for the pro bono intake interviews and whatever organization that you're working with will probably have some materials for you. They may have an intake sheet that the client is going to fill out. They may have you collect information from the client. They may have some other setup where they've already done a brief of intake interview with someone, but you are conducting actual fact gathering. So this really does depend on where you are and who you're working with, but no matter what your role and sort of what your responsibility is to the organization, there are some things that are always going to be consistent when you're engaging in an intake interview. So the first thing to do is outline what your role is very clearly. And remember that a lot of the people that you're going to be working with have never worked with an attorney before, they may never have encountered any legal case before. They're not gonna be familiar generally with the legal system.

So you wanna outline your role, start with a name and introduction and a clear statement of what your role is today. And this can look like my name is Ashley, I'm the attorney that I'll be speaking with you today. And I am here to assist you today in sort of gathering the facts about what's going on and go ahead and set clear expectations around the scope of representation. And this is something, again, that whatever organization you are working with, they may have already done this. They may have explained into the client already, here is the scope of what will happen today, but you may also want to go ahead and do it as well. I am not creating an attorney client relationship with you today, but I am here to hear about what's happening. I'm going to consider your case and evaluate your case. I'll give you some advice if that's what you're doing and every organization does it differently. Some allow you to go ahead and give brief advice to the client while you're sitting there. Some will say, you're just collecting facts today. And you are just give us the facts, give us what's going on. And we'll evaluate the case.

So obviously follow whatever instructions you're given by your pro bono coordinator, or whoever's running whatever intake you're doing. But I like to go ahead and set the expectations that I may give advice to someone today, but that does not mean that I will represent them moving forward. I will be evaluating their case to determine if I'm going to represent them moving forward. And then any disclaimers that you need to give. Sometimes this comes up in states where attorneys attorneys, attorneys are usually not mandatory reporters, but in some places, all adults are mandatory reporters of things like child abuse. So go ahead, and if you need to give a disclaimer that there may be things you need to disclose, if they're reported to you, go ahead and give those disclaimers. And also if there going to be any information sharing between you and another organization, you wanna go ahead and disclose that so that the client is aware of that, and most organizations will have those disclaimers for you to read, but go ahead and check to see if there's anything that you need to tell the client ahead of time.

The second thing that you're going to do is really check for safety. And when I say check for safety, I don't just mean their immediate safety, although that is an important factor. What I'm looking for are things that are going to keep the client safe long term. And one of the things that particularly domestic violence service providers do is check for safe contact information, but you should really do this no matter what kind of intake you're doing, because an abuser who lives with a survivor of domestic violence might have access to their phone, might be on the same phone plan with them and have access to their phone records, might have the password to their email address, it's really important that you check with the client, that the information that they have given you is information that is safe to use. So checking to make sure it's okay to leave them a voicemail, particularly if it's a home phone and multiple people have access to that voicemail. Checking to make sure that it's okay to send them an email. Is it okay to mail you things? And sometimes when the abuser is living in the same address, it's not okay to mail things. So going ahead and checking with the person that you're talking to, is this contact information safe contact information that I can use to contact you? And then safe surroundings are a little bit more important when you're doing a virtual intake or a phone intake, but do check if you are doing some kind of intake, that it's somewhere where you can't really see where your client is or you don't know where your client is, just check to make sure, is it okay for us to be talking right now? Are there anything, is there anything going on that would lead you to not feel comfortable telling me what's going on right now?

Those are all really important things to check for when you're conducting a virtual intake. And we have had clients that I've worked with before, who were calling my legal assistance hotline from the same home where their abuser was. And they said the abuser could walk in at any second. So it's worth checking for those safe surroundings and just making sure that everything is really the way it needs to be for you to conduct a proper intake. And then you can start with open ended questioning once you get to the fact gathering part of your intake. So I like to start with what brings you here today? What led you to seek a lawyer?

And sometimes you'll already have some information. You'll already know that the client is there for a public benefits issue or for a domestic violence issue or for a housing issue, but sometimes you'll have no information at all. You'll just have somebody walk into a clinic and say, I just need some legal help. So starting very broad and then sort of working your way more narrowly is the best way to sort of get all of the information. And a lot of times people are going to have more than one problem. And that's really, really common, especially for people who are living in poverty, who have multiple sort of systems working against them at once. They may have a housing issue and a domestic violence issue and a public benefits issue. So starting broad asking them to define what their legal issue is, but also sort of exploring whether there are issues, they may not have even identified as a legal issue.

So things to keep in mind. Be flexible while you're in this intake process. Often times our clients have to bring children with them. It's not ideal for an intake interview, but it's sometimes just unavoidable. There's no one else who can watch the children. And so they may have to come with you. So just be sort of mindful of the fact that clients are going to be a little bit distracted if they have children with them. So if there is, you know, a book or a game or something that they can play, sometimes organizations will have those available for people at clinic, but they might not. And so you might have a child interrupting your client while you're trying to talk to them. So be flexible and be patient.

With virtual or telephonic intakes, keep in mind that you may have technology issues and it's okay to sort of be creative about how you deal with that. I've had clients whose children have taken their phone and hung up on me while I was talking to them. You know, you just gotta call back. Sometimes there's going to be issues if you have a zoom interview and the client loses connection, maybe see if you've already got their phone number and try to call them. So just being flexible and able to sort of think creatively about how to reach your client, if there are technology issues.

Be prepared that your client might not feel comfort giving information right away. And that really depends on the nature of their problem, but there is often shame associated for people with whatever problem they're going through. When you think about things like foreclosure and bankruptcy, people have this feeling that this is their personal fault, that they're in this situation and they often feel shame or anxiety about it. Domestic violence situations. People often feel a lot of shame and anxiety. And so just keep in mind that if your client is not really being forthcoming about giving you all of the information right away, just think about their situation and how they might be feeling and give them some space to get comfortable with you. Maybe, it's okay for you to show some of your personality to make a joke.

So being open with them and you know, it's a serious situation, but sometimes feeling like you build that rapport can help you get the information that you need and be prepared for the client narrative to jump around. This is particularly true, when someone has multiple legal issues. They may get distracted by something in the middle of what they're telling you and jump around in what they're telling you.

Really give that person the space to sort of get it all out, if they're sort of rambling and telling you all of these different things, really just give them a few minutes to go, before you stop them and say, I'm going to focus your attention here. I want to focus on this issue because you know, as you're getting all of that information, while it can sometimes be hard to keep track of, you might be identifying issues that you didn't know about. So it's important to give them that space and time. And then the next steps during an intake interview, identify any advice that the client needs to receive right now, immediately. Sometimes these are emergency situations and people need your advice today, even if you can't take their case today or represent them today, they need to know what you're advising them to do, right?

So particularly, you know, again, in domestic violence situations, we might tell somebody, you need to go file today. Here is the address for the courthouse. You should go and file and get a temporary protection order right away, because you're in danger. There may be advice that you need to give them about what evidence to collect or how to file something. So go ahead and identify what they need to know before they walk out of that room. Collect evidence or documents from the client. See if you can take pictures of things, if you don't have a photocopy machine, but it's really important to collect the evidence while you can, while you have the client there, because maybe it might be harder for you to get in touch with them later. So if they've brought you all their paperwork, go ahead and collect it, make copies of it and give it back. If the client has any immediate filing needs, go ahead and notify your supervisor because you may, that may influence whether they want to take the case and whether they want to take the case now and try to supervise it immediately. And particularly if you are interested in helping with that filing or you're interested in representing the client, tell your supervisor that because that's really helpful information for them to know.

Before the client leaves, make sure you give a clear timeline for the review of the case. Go ahead and tell them. So we will be back to you within 48 hours. We will be back with you in five business days. We'll talk to you in one week and let you know about whether or not we're accepting your case and your organization should probably tell you what that guideline is, how long it takes them to you cases, but make sure that you give the client the expectations for when they will know something, just so that they're not anxiously waiting to hear. And then go ahead and identify and provide any referrals as necessary. And your organization that you're working with can help you with this. If you know that there's an issue that this organization doesn't handle or if you see that there's a non-legal need, but it would be really helpful for this person to work with a social worker or it would be per like, it would be helpful for this person to have a case manager review their case and refer them to some social services, go ahead and flag that because often these organizations do have partnerships with social service organizations that can help the client and maybe get them some stability as they're dealing with this legal situation. So the next thing that we're gonna do is sort of walk through what an intake might look like, the facts that you might get. And I will sort of flag as we move through this, where I think there would be flags that you would want to write down, things that you would want more information about and how to sort of spot these legal issues.

So we're gonna imagine that you are conducting an intake with Anna as part of a pro bono clinic. And Anna tells you that she's originally from Guatemala and she's been living in the United States for seven years. And you notice while you are sort of introducing yourself that she's not really looking directly at you, and she's hesitant to sit down, you start asking her some questions and she says, do you really need all that information? Do we really have to talk about this? And this is a flag for you that your client isn't really comfortable and your client, as I mentioned, oftentimes these clients are not really familiar with the legal system. Don't really understand. They know they have a legal problem, but they don't necessarily understand what information you need. So when you start asking questions, particularly if they feel like personal questions, your client might say, do you really need to know that? And it's okay to go ahead and explain. I understand it's not the most comfortable question. And I'm so sorry that I have to ask, but I do actually have to have that information so that I can properly evaluate your case. So it's okay to say that. And in a case like this, you know, particularly if the client is really hesitant, is not looking at you, is really nervous, I might go ahead and sort of build rapport before I start asking questions and really try to make sure that the client feels comfortable with me specifically.

So imagine that you've told Anna, unfortunately I do have to have all of this information. I understand it's uncomfortable, but unfortunately, in order to make a proper determination about your case and really understand what's going on, I do need to take this information down. So then Anna tells you, she came here seven years ago to be with her husband, who is a U.S. citizen. She recently ended her relationship with her husband and she's taken the children with her. She also tells you that her husband recently called her and threatened to kill her, if she tried to keep him away from the children. And he also threatened to call ICE to report her and have her deported. So red flags here, these are where you start seeing some of the legal issues, right? Recently ended her relationship with her husband and has taken her children with her. So we know that there, if she's married to this person, there's a legal relationship there, right? Because she's married. You might be looking at a case where she wants a divorce. She's taken her children with her. You might be looking at a case where there needs to be a custody determination and particularly given the fact that he called her and threatened her recently, there may be some safety concerns. There may be some domestic violence history here. So I would go ahead and flag that that as a possibility. And then finally he threatened to call ICE to have her deported. That doesn't necessarily mean that someone is in the country illegally, particularly, you know, we have immigrants in this country who are here legally, who don't really understand their status or how their status works. Particularly if they were brought here by a U.S. citizen relative or spouse. So she may not be undocumented, but it would be important there to figure out what her immigration status is so that you know that that's what the case is or not. So I would flag all of those potential issues, right?

There might be a divorce issue. There might be a custody case that you needs to be filed, and those could be filed together. With the recent threat. she might qualify for a protection order. She probably would. And then he's also threatened ICE to report her and have her deported. There may be an immigration issue there. And in some states, and you know, you can talk to you or supervisor about this, if this ever comes up for you, that threat to report someone to ICE and have them deported is also a crime and could be a basis for a protection order. So then we talked to Anna a Little bit more and she had to bring her children with her, to her intake because she has no childcare assistance. And one of the children starts coughing and seems like he's having trouble breathing. And Anna is sort of comforting him and hoping make him feel better. And she says, oh, he has asthma. He's been coughing because of the mold in the apartment that they're staying in. And you ask her, well, have you talked to your landlord about that? And she says, I did tell the landlord about all the mold and that he was coughing a lot, but no one's done anything about it. So I've just been trying deal with it myself. This is another flag here, right? The conditions of someone's home are often governed by landlord tenant law. There are often requirements of what landlords must do to maintain the premises of the department. So you would flag here. This looks like a housing conditions issue and there may be legal remedies for Anna, given that she has informed the landlord and he hasn't done anything about it, particularly since it's causing health issues.

So this is another sort of issue that Anna didn't really identify as a legal issue, right? She's telling you, oh, he's just coughing because he has asthma. He's having trouble breathing. But the more you question her about it, the more you might realize, actually, this is a legal issue. This is something where you might have a legal remedy. So really helpful there to have, all of these facts coming out and to really pay attention to everything that's going on in the intake. Particularly when your client says I'm having this issue, they may not think it's a legal issue, but you might know that it is. So just to walk quickly through some other things that might come up, I'm going to imagine that you've decided to represent Anna in her family law case, you have set up an initial client meeting with her to prepare her complaint for divorce and custody, but an hour before the meeting, she calls to tell you that she can't make it because her son is sick and nobody's available to watch him. So again, this is something that we flagged when we talked about looking at these cases through a poverty informed lens. This is an issue that comes up pretty frequently, right? Our clients often can't afford babysitters. They can't necessarily afford daycare even. Daycare expenses are astronomical. And if her son is sick and nobody's available to watch him, she has no choice, but to stay home with him.

So in this case, you might be more flexible with Anna say, okay, originally we were supposed to meet in my office, let's do a Zoom meeting and then you can do it from home. Let's do a phone call and then you can do it from home. And you can meet me later to sign this pleading and sort of swear and affirm that it's true. And we can meet maybe at the courthouse or you can meet somewhere closer to you or I can come to you, whatever you can do to make it easier for this client to really access those services. And then after the initial status hearing opposing counsel serves you with discovery and you need Anna to provide answers to the interrogatories and the request for the production of documents. You've called her repeatedly to set up meetings, but she cancels more than once, doesn't return your calls. You're really having trouble reaching her.

So in this case, there's a couple of things that I would recommend doing. If you have connected the client with social services or the organization you're working with has connected the client with social services, maybe reach out to the social worker and see if Anna is in touch with a social worker or a client advocate from the organization. Say you're having all reaching her and you really need help getting to her because you have this upcoming discovery deadline, expand the ways that you're trying to get in touch with the client. We're often really reliant on email as attorneys, but oftentimes our clients don't really check their email. So if you're emailing Anna and she's not responding, maybe call instead. I find that Michael clients are very responsive to text messages. So maybe send a text message. All of these things can be ways that you could sort of make contact additionally. Just reach out as many ways as you can. And if you can't really get in touch with the client, giving her an absolute deadline and letting her know you must contact me by this point or I will have to withdraw, will sometimes give the client that alert. Okay, I need to take this seriously. I need to be taking the time to do this, right?

And sometimes you're still not gonna be able to reach the client. And maybe your case gets dismissed. Just be flexible with that, right? Your client may not be in a position right now where this is the most important thing in her life, but there may be a point later where she needs to come back. So sending her her file, you know, if you do have to write a closeout letter. Making sure that closeout letter includes information about how to get back in contact with the organization that she did intake with. So really being understanding about the circumstances that the client is in and doing what you can to make sure that the client has access to services.

So thank you so much for watching the CLE. I really hope that this has helped engage you in the practice of pro bono and why it's important, what we can do to help the people who are in need the most in our communities, and to get you excited about the possibilities and the ways that you can engage in this. So thank you so much.


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On demand
3h 10m 43s

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