Should lawyers use legal terms of art that may be considered offensive? A provocative series of posts recently lit up a listserv I’m on, bringing this issue into sharp focus. Some comments articulated a historically neutral explanation for a term, another sought evidence that a receiver took offense, another dismissed the kerfuffle with a pithy “Micro-Aggressions warrant no more than a Micro-Concern.” Another comment that said acceptable language, like people, changes and evolves over time.
Given that “effective communicator” is part of a lawyer’s job description, we should be sensitive to how listeners may interpret our language.
Metaphors May Offend
The unfortunate truth about America’s status as a “melting pot” includes discrimination toward each new wave of immigrants. Often, that discrimination has included labeling immigrants with an ethnic slur.
Over time, some of these ethnic slurs have been abandoned as unacceptable. However, others live on in our language as shortcuts or analogies. Speakers or writers may intend no discrimination or malice but offend nonetheless.
Take the term “Chinese wall.” When I was practicing, I recall my firm using the term to defend against a possible motion to disqualify due to the lateral hiring of an attorney who represented an opposing party at a previous firm.
By using screening procedures to isolate the attorney with confidential information, the hope was that the conflict of interest would be restricted to the individual lawyer and not be imputed to other attorneys in the firm.
“Chinese Wall” actually appears in Black’s Law Dictionary. There it is defined as “more commonly known as ‘ethical wall’ or ‘firewall,’ this term refers to ‘[a] screening mechanism maintained by an organization, esp. a law firm, to protect client confidences from improper disclosure to lawyers or staff who are not involved in a particular representation.’”
Justice Law in Peat, Marwick, Mitchell & Co. v. Superior Court (1988) firmly asserted that the term “Chinese Wall” should be jettisoned in favor of “screen” or “ethical wall”:
“‘Chinese Wall’ is one such piece of legal flotsam which should be emphatically abandoned. The term has an ethnic focus which many would consider a subtle form of linguistic discrimination. Certainly, the continued use of the term would be insensitive to the ethnic identity of the many persons of Chinese descent.”
A strained metaphor when crafted, it is uncomfortable but important to acknowledge this example at this time in history. It shows how pervasive discrimination is, even in our profession.
As diversity advocate and former General Counsel Rick Palmore will share next week in his talk at The Future Is Now: Legal Services conference, awareness and acknowledgment are the first steps toward greater inclusiveness. Action must follow for true allyship.
History and Intent Doesn’t Mitigate Effect
Similarly, our collective path is riddled with examples of people being targeted or ostracized for having a disability. Terms that lawyers use regularly in arguments may smack of ableism, or discrimination in favor of able-bodied people.
For example, “the blind leading the blind” describes a situation when someone who knows nothing about a subject gets advice from another person who knows little more. Similarly, “turning a blind eye” may refer to ignoring facts or an argument and “turning a deaf ear” may mean to ignore or refuse to listen.
I learned from a listserv commenter that the expression “turn a blind eye” is believed to have come from the 1801 Battle of Copenhagen in which Horatio Nelson, a British naval commander, was ordered to withdraw. Nelson, who was blind in one eye due to an earlier battle, pretended not to see the signals by putting his telescope to his wounded eye.
However, whether or not this or any term originated from a historical event doesn’t ameliorate the harmful effects this language can have on a person.
In addition, that our intent may be benign in using certain terms is irrelevant. As another commenter on the listserv said, “Personally, I don’t believe that I have standing, as you lawyers might say, to tell someone else what they shouldn’t find offensive.”
Language Can Signal Inclusiveness…or Not
As lawyers, our stock in trade is language. We can choose language that makes our points persuasively or language that is distracting and possibly offensive. Distracting or offensive language, of course, doesn’t serve our clients, our profession, or our image in the eyes of the public.
When we disregard how others may interpret our language or are unthoughtful with our words, we risk offending members of our professional community, like the judge, judge’s staff, opposing counsel, or others who may hear the oral argument or read the brief. In choosing more inclusive language, we choose allyship.
Allyship, according to Nicole Asong Nfonoyim-Hara, the Director of the Diversity Programs at Mayo Clinic, describes an action of “a person of privilege work[ing] in solidarity and partnership with a marginalized group of people to help take down the systems that challenge that group’s basic rights, equal access, and ability to thrive in our society.”
Allyship is also defined as a form of action by Ellie Krug, Founder and President of Human Inspiration Works.
In a conversation about her upcoming talk at The Future Is Now conference, Krug explained that “ally” is a noun. “An ally acts to help humans who often lack a voice to speak on their own behalf or who aren’t always in the room when demeaning or marginalizing comments/behaviors occur, or marginalizing policies or plans are made,” she writes.
As a transgender lawyer, Krug finds the language of “us vs. them” particularly pernicious to our democratic values. She exhorts lawyers to embrace the diversity, equity, and inclusion practices that the business community adopted long ago.
Increased allyship through language and actions is essential for the legal profession to remain relevant. The topic may make us uncomfortable, but that is where growth occurs.
Concrete steps toward allyship will be explored at the Commission on Professionalism’s The Future Is Now conference on April 29, 2021. Krug, Palmore, and Hon. Ann Claire Williams, a retired federal judge now at Jones Day, will share specific strategies for actively re-shaping the culture of our profession.
If you haven’t registered for The Future Is Now, it’s not too late. Register here and I will “see” you there. CLE and judicial education credit will be provided to conference attendees.
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