Diversity, Equity, & Inclusion (DEI) Series: Microaggressions, Building Rapport and Recovering from Blunders – Resources for Harmonious Pro Bono Client Interactions

“A provider should ensure that its staff has the skills, knowledge and resources necessary to provide assistance in a culturally competent manner.” ABA Standard 2.4 For the Provision of Civil Legal Aid

By Nisel Desai
Diversity and Inclusion trainings seem to have surged since the tragic killings of George Floyd and Breonna Taylor. The Black Lives Matter movement has seen an outpouring of solidarity and support, but we, as attorneys and officers of the court, must grapple with the difficult question: Why Now?

Perhaps it is the dual disasters of police brutality amidst a raging pandemic that have forced us all to participate in difficult conversations with each other, with our families, and within our communities. Whatever the root of this self-reflection may be, it is absolutely overdue, and such trainings and conversations are not intended to advance a particular political agenda, but rather to reframe these issues in the name of preserving human dignity and the equitable provision of justice. Two ends, that most attorneys can agree are the pillars of our profession.

The NCBA Pro Bono Committee’s subcommittee on Diversity, Inclusion and Equity hope that this series of blog posts empowers attorneys with resources that facilitate cultural humility in the provision of legal services, especially in the pro bono space. For this second installment, I review a training conducted by fellow subcommittee members Niya Fonville (Campbell Law School), Fran Muse (Carolina Student Legal Services) and me (Carnes Warwick) at the Pro Bono Committee Mega Meeting. I am by no means an expert in this area, but in both my legal practice and pro bono efforts, I’ve counseled minorities of all intersections, and have learned so much from my clients about what it means to be a culturally sensitive attorney and why it matters now more than ever.

The American Bar Association’s commentary on its Standard 2.4 provides an excellent starting point.[i] Think of it as The Why.

“To be culturally competent in legal aid means having the capacity to provide effective legal assistance that is grounded in an awareness of and sensitivity to the diverse cultures in the provider’s service area. A cultural group is identified by shared beliefs, values, customs and behaviors that define what it is.”

Each of us inadvertently brings our own value systems, experiences, and biases into client interactions. Most microaggressions are rooted in an initially benign assumption about someone that falls into a social construct (race, class, sexual orientation, gender, etc.) that is thought of as “other,” that is precisely why they are “micro.” Basically, good intentions don’t always have a positive impact. My co-presenter Niya Fonville reminded us that, after all, we define a microaggression as a subtle act of exclusion that makes another feel like an outsider. You are actually an “other” to everyone else – recognizing that heteronormativity, cis-gender normativity, race-normativity, etc., is an impactful way to prevent microaggressions. An exhaustive list of microaggressions and its underlying theory would likely take up the rest of my word limit, so I’ll link out to the experts.[ii], [iii]

The second part of our training discussed the logistics of a pro bono event and how one can quickly establish rapport with diverse clients. One of the biggest challenges these leaders will face is the short duration of the pro bono transaction. There are few precious opportunities to signal inclusiveness and cultural humility to potential pro bono clients and thus quickly build rapport and trust. This work often starts well before a client even walks into a clinic. Two important signals that can communicate such inclusiveness is the use of ADA-compatible materials and careful consideration of content on an initial intake form. I also recommended specific actions we can take during the client interaction to help build rapport quickly. By using inclusive staffing of mental health workers and legal translators, and brushing up on effective interviewing skills, you can quickly break the ice, overcome cultural differences and focus on the critical mission of the pro bono appointment.

I ended my portion of the training by assigning a little bit of homework. Take a few moments to get together with a colleague and complete two Harvard Implicit Bias Tests.[iv] Be sure to choose categories that don’t reflect the client pool you deal with in your daily practice and discuss your results with your colleague. Were you surprised? Uncomfortable? Vulnerable? Good. Part of the self-reflection process requires these emotional reactions and should inspire you to listen to and then amplify minority voices.[v]

As with all well-intended advice and trainings, mistakes can and will happen. My co-presenter Fran Muse did an excellent job in sharing how to overcome such blunders. Fran showed great leadership by admitting that she needed to consult experienced resources when compiling her portion of the presentation. The advice of Dr. April Callis of The LGBTQ Center of UNC-Chapel Hill showed us the three fundamentals of handling blunders such as using an incorrect pronoun. This three-pronged approach is one I’ll certainly keep in my back pocket the next time I’m called to serve and make a mistake: (1) Do Not Get Defensive; (2) Apologize and Educate Yourself and (3) Don’t Make it About You. The core of her advise is how you deal with a blunder should not overtake the legal appointment, nor should it put the onus on the client to make you feel better about it!

And in conclusion, my co-presenters and I leave you with this:

Be kind. Be Intentional. Remember intent ≠ impact.

Inclusionary Lawyering: Building Rapport and Recovering from Blunders

Presenters: Niya Fonville, Nisel Desai, and Fran Muse.

[i] ABA Standard 2.4. https://www.americanbar.org/groups/legal_aid_indigent_defense/resource_center_for_access_to_justice/standards-and-policy/standards-for-the-provision-of-civil-legal-aid/standard-2-4-on-cultural-competence/#:~:text=To%20be%20culturally%20competent%20in,that%20define%20what%20it%20is.

[ii] https://academicaffairs.ucsc.edu/events/documents/Microaggressions_Examples_Arial_2014_11_12.pdf

[iii] https://www.npr.org/2020/06/08/872371063/microaggressions-are-a-big-deal-how-to-talk-them-out-and-when-to-walk-away

[iv] https://implicit.harvard.edu/implicit/selectatest.html

[v] https://podcasts.apple.com/us/podcast/amplifying-minority-voices-diversifying-your-board/id1474097384?i=1000446500929