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Race/Bias/Cultural Competence

Celebrating October 10, 2022: Mental Health Day, Indigenous People’s Day, and Professional Identity

By: Janet Stearns, Dean of Students, University of Miami School of Law
Chair, ABA COLAP Law School Committee

World Mental Health Day

October 10 has been declared as World Mental Health Day by the World Health OrganizationThe objective is to “raise awareness of mental health issues around the world and to mobilize efforts in support of mental health.” Just last week, the CDC announced that the suicide rates in the United States increased four percent from 2020 to 2021, showing that the demand for resources and education remains great.

For many years, the ABA Law Student Division and the ABA Commission on Lawyer Assistance Programs have partnered to bring Mental Health Day to our law students nationwide. While initially organized in March, the groups now celebrate October 10 as Law Student Mental Health Awareness. The ABA will partner to feature national programming to bring attention to law student mental health and reduce stigma so that resources are accessed. Many law schools will use Mental Health Day as a linchpin for law school wellness days or wellness weeks. Often, lawyer assistance programs around the country also use this opportunity to visit area law schools or do outreach through social media. I expect that many of the readers of this article are already on the path to organizing programming for the upcoming Mental Health Day. However, an excellent review of the range of opportunities is covered by Jordana Alter Confino in her 2019 article Where Are We on the Path to Law Student Well-Being?: Report on the COLAP Law School Assistance Committee Law School Wellness Survey.

The 2022 Mental Health Day is just around the corner. This year, at the request of the ABA Law Student Division leadership, we have recruited a group of thought leaders on well-being (among them bar leaders, law faculty, COLAP members, and law students) to record short videos sharing messages on well-being. An intensive social media campaign will continue over the next two weeks. In addition, on Friday, October 14, a number of law students, representing diverse initiatives around mental health, well-being, and mindfulness, will convene to discuss a number of topics in law schools and advocate for change. (Please contact the author for additional information if you have students who should be added to this invitation.) We anticipate that many law schools will be hosting their own programming, and encourage all to share your activities using #LawStudentWellBeing.

While this initiative predates the recent revisions to the ABA Standards, this is an opportunity to underscore that the ABA COLAP and Law Student Division advocated jointly for the inclusion of well-being in the Standards for many years. This year, now that ALL law schools must make resources available around well-being under Section 508, we expect that 2022 Mental Health Day will truly be a national event.

Indigenous People’s Day

Monday, October 10 coincides with the holiday now known as Indigenous People’s Day. Some history on this holiday: in 1934, President Franklin Delano Roosevelt first designated October 12 as Columbus Day, commemorating the day when presumably a crew member of the ship lead by Columbus “sighted land.” Since 1971, this was recognized as a federal holiday, and then moved “officially” to the second Monday in October.

South Dakota was the first state to recognize Indigenous People’s Day in 1990, and since then a number of states have followed. While it is not yet a federal holiday, a movement is growing. In 2021, President Biden was the first U.S. President to issue a proclamation in recognition of Indigenous People’s Day.

On Indigenous Peoples’ Day, our Nation celebrates the invaluable contributions and resilience of Indigenous peoples, recognizes their inherent sovereignty, and commits to honoring the Federal Government’s trust and treaty obligations to Tribal Nations….On Indigenous Peoples’ Day, we honor America’s first inhabitants and the Tribal Nations that continue to thrive today.

Early in the planning for this year’s Mental Health Day, the organizers recognized that the coinciding of the two holidays provided a great opportunity for reflection and awareness. For one, we recognized that some law schools may be closed on Monday, October 10 and that we needed to be flexible with programming that would extend over the entire week. Further, in recruiting thought leaders for this year’s videos, we actively sought voices that would help us highlight the significance of the two overlapping dates. We invite you to pay particular attention to the contributions of Professor Rhonda Magee (University of San Francisco), and Siena Kalina, 3L at Colorado/ Boulder and President of the National Native American Law Students Association. We are grateful for their contributions.

The Intersection of Mental Health Day and Indigenous People’s Day: Lessons for Professional Identity Education

The significant changes in the ABA Standards in 2022 have created many opportunities in legal education. Among these is the opportunity to create new dialogue between the advocates for law student well-being and supporters of education addressing bias, cross-cultural competency, and racism. These two issues are closely intertwined on many levels, and we have a unique opportunity in the upcoming weeks to reflect and message on this.

In 2020, Mental Health Day featured the path-breaking work of Rhonda Magee and her book The Inner Work of Racial Justice: Healing Ourselves and Transforming Our Communities Through Mindfulness. The recording of her presentation is still available on the ABA website. Professor Magee’s powerful work speaks to the role of mindfulness in our own lives and as an integral part of racial justice work.

In recent years, I have also become more attuned to the need for programming that speak directly to some of our students who may feel marginalized in our law schools. I wrote about this in the AALS Student Services Section Newsletter last year, exploring the integration of well-being and anti-racism programming.

As I have been pondering for myself the upcoming holidays, let me suggest a few very concrete but important steps towards well-being for our Native American Law Students:

Miami University and other institutions are using land acknowledgements to reframe our understanding of property and show respect for local indigenous peoples. My institution now has such a land acknowledgement on its Consider special messaging that should be shared for Indigenous People’s Day.
Read about the National Native American Law Students Association and whether your law school does or should have representation.
Reach out to graduates who may be able to teach and share wisdom…with us and with our students. I made such a call last week to a wonderful former student, Curtis Osceola, who now works as Chief of Staff to the Miccosukee Indian Tribe here in
South Florida. I have asked him to write a short message to be shared with Miami Law next week in recognition of Indigenous People’s Day. You can read his powerful message, which appears at the end of this post.

Janet Stearns is Dean of Students at the University of Miami School of Law and Chair of the ABA COLAP Law School Committee.
Recognize that all of the Mental Health and Well-Being challenges that we are highlighting are playing out in significant ways in the Indigenous community, and often with far fewer resources to support.

The author welcomes hearing from colleagues across the country as we all explore approaches to our commemoration of the dual holidays that will take place October 10, 2022. You can reach me at jstearns@law.miami.edu.

Curtis Osceola’s Reflection Re: Indigenous People’s Day

Columbus Day. I remember when I was a child sitting in an elementary school classroom and being told of the exploits of Columbus. How he traveled the world, explored the Caribbean, discovered America…

I raised my hand, “Miss, Columbus didn’t discover America, my people were here.” The teacher was taken aback. I doubt anyone had ever challenged the lesson plan, “Yes he did, Curtis. Columbus discovered America.” She replied. “No, he didn’t, he was lost and my people were here first.” I was sent to the office for insubordination. I felt humiliated, guilty, and stupid. How could I have been so wrong? Is my entire existence wrong? What can I do to be “right?”

Many Natives have expressed the same defiance to colonial history, but now that defiance has become a movement. The movement to change Columbus Day to Indigenous People’s Day was born out of the rejection of the lie that is the “Discovery” story of Columbus. But why such a strong rejection? America is great after all. We have the blessings of freedom and democracy. We are protected by laws and those who enforce those laws. We have courts and modern notions of substantive and procedural due process. So why fight the history?

Because the lie hurts. Not like a cut with a knife or a bullet through the flesh. It hurts the mind. Take, for instance, a Native child today. How many Natives before them endured racism, oppression, violence? What effect did those experiences have on the mental health of their predecessors? On their brain chemistry? What is the net effect of that experience through their progeny? The generational trauma of war, removal, and extermination have evolved into contemporary mental health issues like schizophrenia, bipolar disorder, depression, and suicide. These are exacerbated by the social ills of poverty, unemployment, disenfranchisement, domestic violence, and constant bereavement.

Take the experience described earlier: Imagine if a young family member told their teacher about the history of their family member told their teacher about the history of their family, of their heritage. Imagine if the teacher said to that child that they were mistaken, that the history they learned from their family, your ancestors, was wrong. Imagine that child being punished for their expression of truth. And think for a moment—if that single incident was foundational for the formation of my personality and identity, then what further effect does the cumulative trauma mentioned earlier have on the mind?

This is a small window into the intersectionality between what is now Indigenous Peoples’ Day and World Mental Health Day. It is serendipitous that this year they both fall on October 10, 2022. Native Americans now celebrate the second Monday of October as one that is representative of their heritage, legacy, and identity. It seems that the healing has begun. Indigenous People have been subjugated and oppressed since the dawn of the New World. You can help make positive change for Indigenous people. It may not be easy, but it’s worth trying.

Curtis Osceola is an alum of Miami School of Law and now works as Chief of Staff to the Miccosukee Indian Tribe in South Florida.

So how can you make a difference? Make it personal. Become aware of the Indigenous people in your community. Ask them about their land, their history, their experiences. Empathize (or even sympathize) with them. We are the real legacy of the land—subject to the original sins of the American experiment. Remember that the experience of Indigenous people is not just a social experience, but a psychological one as well. Be a friend, be an advocate, be insubordinate avant-garde.

October 5, 2022 by hami3258

Jabeen Adawi

Clinical Pedagogy: Paving the Way for Professional Identity Formation

By: Jabeen Adawi, Clinical Assistant Professor of Law, Director of the Family Law Clinic, University of Pittsburgh School of Law

In response to the American Bar Association (ABA) revised accreditation standard 303(b) requiring schools to provide “substantial opportunities to the students for… (3) the development of a professional identity,” law schools around the country began to remedy a perceived gap in legal education: the formal and intentional development of a cohesive professional identity. Unlike other client-serving professions—such as medicine or social work—law schools are often critiqued as not doing enough to explicitly support the development of a cohesive professional identity for lawyers. Legal education seemed to rely heavily on the existence of the model rules of conduct and one class in legal ethics to ensure that new lawyers understood their fiduciary responsibilities as lawyers. However, all along clinical pedagogy has been equipping clinical programs to move students through identity formation. Below, I’ll explain how at the University of Pittsburgh School of Law, the clinical faculty drew from well-developed tools and teaching approaches to synthesize a clinic-wide foundational orientation for clinic students that directly responds to standard 303(b).

The ABA standard states that professional identity is developed through an “intentional exploration of values, guiding principles, and well-being practices considered foundational to successful legal practice.” In analyzing the new standard, three distinct elements have emerged:

Internalizing a deep responsibility and care orientation to others, especially the client,
Developing ownership of continuous professional development towards excellence at the major competencies that clients, employers, and the legal system need, and
Well-being practices.

The goal of our foundational orientation is to equip students with common skills and perspectives they will refine during their clinical experiences. Since this is our first pre-semester orientation, we are beginning with a half-day program of three sessions followed by a lunch and a small swearing-in ceremony. The skills we focus on meet the three elements of professional identity formation but are not exclusively the only ways we support student growth in our program.

Internalizing Deep Responsibility to Others

The first element promotes the fiduciary responsibilities of lawyers to their clients and society at large. It centers on developing and nurturing a mindset prioritizing a client’s interests above a lawyer’s self-interest. It also orients a law student to the profession’s commitment to pro bono services and developing a justice system that provides equal access and eliminates bias, discrimination, and racism.

To address the first element, our orientation begins with a session on “Understanding Your Responsibility Towards Clients and Society.” Clinic allows students to navigate the demands of real-life legal practice in a setting where clients are facing numerous odds in exercising their legal rights in the current system. However, I find that students need to be grounded in lived experiences of their clients first. For many of my clinical colleagues and me, a poverty simulation is one way to further perspective taking. This simulation will be followed up with discussion questions where students are reflecting upon the choices they were required to make, what circumstances influenced those choices, and what they may have done differently with a changed piece of their identity or additional resource.

The second step in orienting the students towards care of others requires a thoughtful discussion about one’s fiduciary responsibility as counsel. This can begin with a reflective exercise about a student’s own life where they look for experiences being in the care of another or taking care of someone else. These may be life experiences of seeking medical care, customer service, babysitting, caring for a sick relative, being a parent, or a prior career. Reflecting on their own life, a discussion can follow about lawyer’s specific responsibilities and how they relate to the fiduciary responsibility we take on for clients. This discussion will be grounded in the Pennsylvania Rules of Professional Conduct, specifically the preamble. This exercise should set the tone for their identity as lawyers who are in service of others.

I would be remiss if I didn’t acknowledge that a one-time conversation is not sufficient to develop care orientation. After the perspective-taking exercises are introduced in orientation, students will be equipped to revisit these ideas as they move through their clinic work. Typically, clinic students carry lower caseloads than in practice, so it affords them the ability to connect on a deeper level with a client and gain empathy and understanding for a client’s unique lived experience and their actual needs. During the year, individual supervision conversations can revisit the orientation discussions and further reinforce their care towards others.

By the end of the year, students are well equipped to engage in conversations critically assessing the legal system, identifying shortcomings, and proposing solutions. For example, many clinics end the year with a seminar dedicated to reflecting upon challenges their clients faced in accessing the courts, coupled with a brainstorming session on potential solutions.[1] This allows students to connect what may be frustrating realizations about “justice” to tangible solutions, thus beginning to develop their capacity to effectuate systemic change.

Developing Major Competencies

The second element includes making students aware of major competencies that clients, employers, and the legal system need. These competencies include client-centered relational skills, problem-solving, and good judgment. The goal is not only to make students aware of these competencies, and their importance, but also to internalize ownership of their own development in these areas.

The second session in our orientation introduces the students to one core competency: client-centered lawyering. Through a thoughtful exercise called “the Rich Aunt” students begin to consider how personal values drive human decision making and students begin to reframe the role of a lawyer from just an advocate to also that of a client-centered counselor.[2] This exercise has students consider a hypothetical scenario where they are lined up to receive a substantial inheritance but have to evaluate if they want to settle for a lower amount or go to trial and potentially obtain more. The students evaluate what factors drove them to their decision, and then reflect on how personal the decision was. This is then connected to choices a client may make and the value in respecting the client’s ability to decide.

After orientation, this client-centered perspective is reinforced during deeper seminars on counseling and interviewing skills. In future years, we intend to broaden the pre-semester orientation to also cover these topics so the foundation to these core competencies is uniformly reinforced across the clinical program. Finally, during the semester or year, students will deepen these skills within a clinical methodology that is structured to engage a student in learning the why behind their choices, reflecting upon their choices, and drawing strategies to implement in their legal practice. This is often done in a non-directive supervision model that is designed to maximize their opportunities for developing into a self-reflective practitioner.[3] This supervision model is not often available in traditional internship or externship positions.

Establishing Well-Being Practices

The final element of well-being practices goes beyond teaching self-care practices but instead looks at three core needs of the being: “(1) autonomy (to feel in control of one’s own goals and behavior); (2) competence (to feel one has the needed skills, including physical and mental skills to be successful); and (3) relatedness (to experience a sense of belonging or attachment to other people).”[4] Autonomy requires a student to understand their values, be able to express those values, and hence know where they are in control of their goals and behaviors. Hence, developing one’s sense of self as a person becomes foundational to developing the other necessary identities of a lawyer.

The pre-semester orientation will target this element in a third session focused on “maintaining well-being in a live-client setting.” In this session, we will examine the two elements that make up one’s professional quality of life: compassion satisfaction and compassion fatigue. Then, we will introduce a tool called the “Professional Quality of Life Survey” that allows students to self-evaluate the different aspects that affect their quality of life. The Professional Quality of Life Survey is a free tool developed and refined through years of research on what affects a helper’s ability to continue their work. The Center for Victims of Torture owns the tool and provides it free (along with incredible teaching resources) to help anyone working in a helper-oriented profession.

While the results of the survey may be very private, students will not be required to share the results with anyone but can if they choose. I’ve found that the more ways we can provide students a space to discuss boundaries and personal challenges affecting their lawyering, we can assist them in developing skills to navigate issues that are inevitably going to arise in their lives. In private supervision, if a student chooses to share the results of the survey, together we can examine their trends and explore ways to improve their holistic satisfaction. The reality is that no one ever works in a vacuum: our personal lives and experiences come with us to our jobs and influence our work more than we often realize.

Hopefully, like us at Pitt Law, many other schools can utilize the revised ABA standards to bring attention to the strengths of their clinical programs. If anything, there is a wealth of information in clinical pedagogy—it just needs to be tapped.

If you have any questions or comments in response to this post, then please feel free to email at JZA16@pitt.edu.

Jabeen Adawi is Clinical Professor of Law and Director of the Family Law Clinic at the University of Pittsburgh School of Law.

[1] In “Teaching The Clinic Seminar” text by Deborah Epstein, Jane Aiken, and Wallace Mlyniec (three seminal clinical instructors from the Georgetown University Law Center), Chapter 21, “Exploring Justice” offers one thoughtful example of a framework for discussing justice in a clinical seminar. Another example is in Sue Bryant and Jean Koh Peters’ online repository for clinical law teaching materials “Talking about Race”, where they provide tools for facilitating conversations around racial justice.

[2] Deborah Epstein, Jane Aiken, Wallace Mlyniec, Teaching the Clinic Seminar 56 (2014) (describing the “Rich Aunt” exercise).

[3] See David Chavkin, Clinical Methodology in Clinical Legal Education: A Textbook for Law School Clinical Programs 7 (2002); Serge A. Martinez, Why are We Doing This? Cognitive Science and Nondirective Supervision in Clinical Teaching, 26 Kansas Journal of Law & Public Policy 24 (2016) (discussing the non-directive supervision model).

[4] Neil Hamilton, Louis Bilionis, Revised ABA Standards 303(b) and (c) and the Formation of a Lawyer’s Professional Identity, Part 1: Understanding the New Requirements (May 2022).

October 3, 2022 by hami3258

Louis Bilionis, Neil Hamilton

Latest Article from Bilionis and Hamilton on ABA Revisions of 303(b) and (c) Published by NALP’s Professional Development Quarterly

NALP just published the third and final installment of Louis Bilionis and Neil Hamilton’s three-part series on the Standard 303 revisions. Part 1 and Part 2 appeared in the May and June 2022 editions of NALP’s PDQ, respectively.

The last article in the series, which is titled “Revised ABA Standards 303 (b) and (c) and the Formation of a Lawyer’s Professional Identity, Part 3: Cross-Cultural Competency, Equal Access, and the Elimination of Bias, Discrimination, and Racism,” can be read here.

September 28, 2022 by hami3258

Eliza Vorenberg, Suzanne Harrington-Steppen

Law School Pro Bono Programs: Opportunities To Reflect On What It Means To Be A Lawyer

By: Suzanne Harrington-Steppen, Associate Director of Pro Bono Programs and Clinical Professor of Law, Roger Williams University School of Law

Eliza Vorenberg, Director of Pro Bono Programs and Community Partnerships and Clinical Professor of Law, Roger Williams University School of Law

Law school pro bono programs, whether mandatory or voluntary, offer rich opportunities for students to develop their professional identities as lawyers. Roger Williams University School of Law (RWU Law) has a mandatory 50-hour Pro Bono Experiential Learning requirement. The requirement falls under our “public service” learning outcome and reflects our commitment to teaching our law students about the legal profession’s responsibility: (1) to improve access to the legal system and the quality of justice; and (2) to provide pro bono legal service in law practice to those who cannot afford legal services.

For many law students, pro bono experiences are their first opportunity to play the role of lawyer and reflect on what they are seeing in the profession and how it feels to be a part of the profession. About 40% of our first-year law students engage in a pro bono experience before they finish their first year. But, as we know, experience alone isn’t enough to help students integrate and reflect on the values and norms of the profession as they relate to public service. Law schools are uniquely situated to help students develop their professional identities by providing critical context for their pro bono service. Law schools can both teach students how pro bono service is central to the profession and also provide them with space to reflect on and process their pro bono experiences in relation to how they see themselves as future members of the profession.

Setting the Stage: Access to and Quality of Justice

Last year, when introducing our law school’s pro bono requirement and programmatic opportunities to first-year law students, we moved away from the traditional “information session” format to a session focused on educating and encouraging law students to think critically about what it means to be a lawyer and how public service and pro bono fit into their future responsibilities and the profession’s values.

We began our session asking our 1Ls to remember the following critically important questions throughout their law school experience, in and outside of the classroom, and throughout their careers:

Who has access to justice? Who doesn’t? Why or why not?

What is the quality of justice being administered? How do we evaluate the quality of justice being administered in civil versus criminal contexts?

We intentionally decided to start our session with these questions because the Preamble to the Model Rules of Professional Responsibility makes it clear that all lawyers, not just public interest lawyers or lawyers who are self-motivated to give back, have a special responsibility for ensuring access to, and the quality of, justice. Before we can teach law students about Rule 6.1 or the goals and contours of our law school’s pro bono requirement students need to be told explicitly what a lawyer’s role in society is beyond advocating for their clients. We teach our law students that grappling with these questions and then doing something to fix deficiencies in the legal system are a lawyer’s duty as a member of this profession, not some lofty dream. We also provide students with an overview of the justice gap, using the Academy for Arts & Sciences video entitled “The Civil Justice Gap”. We explain that pro bono service, as defined by Rule 6.1, is one way to take ownership of their professional responsibility to improve access to justice and the quality of justice for all but that there are many other ways they should be thinking about their role as lawyers in our society. This subtle shift in how we introduce the topic of pro bono asks law students to critique our justice system—using the access and quality framework—from the beginning of their law school journey, to identify who benefits and who is hurt by our systems of justice, and to be aware of the bias and inequities built into those systems.

Providing a Pause: Space for Reflection

Externship pedagogy, particularly its emphasis on structured reflection, can be very helpful in thinking about how law schools can design and structure their pro bono programs to promote professional identity formation opportunities. Pro bono experiences with reflective components offer meaningful opportunities for students to process and think deeply about what they are seeing, experiencing, and feeling while engaged in pro bono service and to connect it to their personal identities and lived experiences.

At RWU Law, each law student must submit a one-page written reflection in response to specific prompts after they have completed a pro bono experience they plan to use to meet our graduation requirement. In the past, we have provided prompts to students focused on the type of pro bono/public service experience, e.g., a prompt regarding working directly with clients, or for judicial experiences, the student’s observations regarding access to justice in the courts. This year, with the changes to Standard 303 in mind, we revised our pro bono reflection prompts to directly engage law students in a reflection focused on how the law student’s pro bono experience fits into their professional identity development.

In addition to requiring a written reflection, we intentionally funnel our first-year law students into pro bono opportunities that the law school has developed, facilitates, and oversees, e.g., Alternative Spring Break, Street Law, Volunteer Income Tax Assistance (VITA), and an Eviction Help Desk. This allows us to facilitate in-person reflective meetings throughout the experience and provide more structure than simply matching the law student with an external community partner. Many law schools may not have the resources to have faculty or staff facilitating in-person reflective meetings but at a minimum law schools should consider asking for or requiring a written reflection as a way students can intentionally think about their professional development.

Whether voluntary or mandatory, law school pro bono programming is an excellent vehicle for facilitating law students’ professional identity formation consistent with the revisions to ABA Standard 303(b).

Suzanne Harrington-Steppen is the Associate Director of Pro Bono Programs and Clinical Professor of Law at Roger Williams University School of Law.

Eliza Vorenberg is the Director of Pro Bono Programs and Community Partnerships, and is Clinical Professor of Law at Roger Williams University School of Law.

If you have any questions or comments in response to this post, then please feel free to email either or both of us at sharrington-steppen@rwu.edu and evorenberg@rwu.edu.

September 26, 2022 by hami3258

Neil Hamilton

Introduction to the Definition of Professional Identity and the Formation of a Professional Identity

By: Neil Hamilton, Holloran Professor of Law and Co-Director of the Holloran Center for Ethical Leadership in the Professions, University of St. Thomas School of Law

This short Holloran Center definition of student professional identity and the formation of a professional identity is the result of a process of inquiry, dialogue within the Center and with others nationally, and reflection since the founding of the Center in 2006. Starting in 2006, the Center focused on synthesizing the core values of the profession from the Preamble to the Model Rules, the three ABA reports and the Conference of Chief Justice Reports on Professionalism, legal scholars’ definitions of professionalism, and our study of how exemplary lawyers defined the core values of the profession.

Providentially, the Carnegie Foundation for the Advancement of Teaching published Educating Clergy, the first of its empirically-based studies of higher education for the professions in 2006, followed by Educating Lawyers in 2007, Educating Engineers in 2009, and Educating Nurses and Educating Physicians, in 2010. The Carnegie studies introduced “professional identity” and “professional formation” as central to each new entrant’s development in higher education for all of the professions including legal education.

By 2012, we thought that “professional identity” and “professional formation” were more useful than “professionalism” because: (1) they incorporated the same core values; (2) they were terms applicable across higher education for the professions which both increased their fundamental importance and meant that we could learn from higher education in the other professions; and (3) they avoided the narrow understanding of many practicing lawyers that “professionalism” was principally focused on respect for others.

Since 2012, the Center has been in a continuous process of further inquiry, dialogue, and reflection to create a short definition of professional identity and professional identity formation that emphasizes both the two most foundational core values of the legal profession (off of which all the other needed capacities and skills needed to practice law build), and also the journey for students to internalize and demonstrate the two foundational core values. Notably, the two foundational values are emphasized in every major faith tradition and nearly all of the major secular philosophies.

We have a consensus among the two co-directors, the associate director, and the three Holloran Center Fellows, and we offer this Holloran Center short definition of both professional identity and professional identity formation to inform your dialogue and reflection on the Standard 303 revisions.

What Is a Law Student’s Professional Identity and What Is Professional Identity Formation? — A Short Introduction
Holloran Center – September 2022

Generally speaking, professional identity is “a representation of self, achieved in stages over time, during which the characteristics, values, and norms of the … profession are internalized, resulting in an individual thinking, acting, and feeling like a … [member of the profession].”

For law students and lawyers more specifically, we can synthesize a succinct definition of professional identity from the Preamble to the Model Rules of Professional Conduct, the four major reports on professionalism from the ABA and the Conference of Chief Justices, and Holloran Center research. For law students and lawyers, professional identity is grounded in two foundational norms and values that law students and lawyers must understand, internalize, and demonstrate:

a deep responsibility and commitment to serving clients, the profession, and the rule of law;
a commitment to pro-active continuous professional development toward excellence at all the competencies needed to serve others well in the profession’s work.

“Professional identity formation” is a developmental process beginning in law school and extending over a career that “should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice.”

Professional identity formation principally involves a process of socialization. The professional-to-be begins as an outsider to the professional community and its ways, values, and norms. Through experiences over time, inside and outside the classroom and the law school, the individual gradually becomes more and more an insider, “moving from a stance of observer on the outside or periphery of the practice through graduated stages toward becoming a skilled participant at the center of the action.”

The process continues throughout one’s career and features “a series of identity transformations that occur primarily during periods of transition” often marked by anxiety, stress, and risk for the developing professional. This process of socialization is a product of the developing lawyer’s social interactions and activities in environments authentic to the legal profession’s culture and enriched by coaching, mentoring, modeling, reflection, and other supportive strategies.

We hope this definition of professional identity and this description of professional identity formation can serve as a useful entry point for a law school’s faculty and staff interested in discussing and reflecting upon professional identity and professional identity formation in the context of the mission of the law school.

Please click below to view the definition with its endnotes.

Defining Professional Identity and Professional Identity Formation

Neil Hamilton is the Holloran Professor of Law and Co-Director of the Holloran Center for Ethical Leadership in the Professions at the University of St. Thomas School of Law in Minnesota.

September 21, 2022 by hami3258

Karen Tokarz

Mandatory 1L Negotiation Class and Upper-Class Dispute Resolution Courses Address Professional Identity, Bias, and Cross-Cultural Competency

By: Karen Tokarz, Charles Nagel Professor of Public Interest Law & Policy, Director of the Negotiation & Dispute Resolution Programs, and Director of the Civil Rights & Mediation Clinic, Washington University School of Law

Washington University Law School is striving to address the revised ABA Standards of 303(b) and 303(c) in multiple ways. The law school utilizes a short course on Negotiation, which we have required for 1Ls for over a decade. It is offered each year in August and January. As set forth in the syllabus, one of the four days focuses on professional identity, bias, and cross-cultural competency. This course offers a unique way of introducing 1L students to these issues via education, experiential learning, negotiation partner feedback, and self-reflection.

In addition, all of our upper-class dispute resolution courses explicitly address professional identity, bias, and cross-cultural competency, especially Cross-Cultural Dispute Resolution, which is offered both semesters.

Below are links to the syllabi of the Negotiation course and Cross-Cultural Dispute Resolution, followed by the text of each syllabi.

1L Negotiation Class Syllabus

Cross-Cultural Dispute Resolution Syllabus

Washington University School of Law Required 1L Negotiation Course (1cr.)
Class Schedule, Objectives, Learning Outcomes, and Assignments
All times are approximate

Course Objectives/Learning Outcomes:

Negotiation is the most commonly used form of legal dispute resolution in the United States and around the world. This required course is designed to introduce students to the basics of negotiation through reading, discussion, simulation exercises, and videos. The course focuses on negotiation theory, negotiation skills, lawyer (agent)/client (principal) dynamics, negotiating in teams, and negotiation ethics.

The ability to participate successfully in legal negotiations rests on a combination of five core skills that students will begin to develop in this course: 1) theoretical understanding; 2) interpersonal and intrapersonal awareness; 3) planning; 4) drafting; and 5) reflection. This course provides students with a set of conceptual frameworks and practice experiences that will enhance understanding and skill level in these areas, from the various perspectives of negotiators, advocates, and clients in negotiations.

This introductory course lays the foundation for learning in upper-level negotiation and dispute resolution courses, as well as doctrinal courses. The course introduces issues of leadership, professional identity, bias, cross-cultural competency and cross-cultural humility. The course also helps prepare students for negotiation and dispute resolution issues soon to be added to the multi-state bar exam.

Course Requirements:

Attendance will be taken at the beginning of each class Because this is a short, one-credit class, anyone who is not present for all four days will not earn credit for the class and will be required to retake it at another time.
There is no final examination for this course, but there is required reading and four required short Students may discuss the assignments with each other but must draft the assignments individually. Students are urged to use their own words in response to the questions. Students are not required to footnote references to the assigned books, other than an initial reference, unless using direct quotations. Students must submit each of their four papers via Canvas before the beginning of each class and receive a passing mark on each paper to pass the course. Students who fail to submit passing papers before the beginning of each class will not earn credit for the course and will be required to retake it at another time.

In addition to the four required papers, there are other short assignments, including a Negotiation Self-Analysis & Partner Feedback Form following each Students must submit passing papers related to the negotiations by the conclusion of each class to pass the course.

ABA Standard 310:

Texts:

Students must read Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In (any edition) before beginning the course. Assigned readings in addition to Getting to Yes will be available on the course Canvas page. Students are strongly encouraged to read the additional readings before beginning the course. Each day’s module on Canvas will include assigned readings and relevant handouts and links.

Tuesday August 23: Negotiation Theories, Strategies, and Styles

Class Schedule:

1:00-2:00         Introduction to the Course and Overview of Day
2:00-2:35         First Negotiation Exercise: The Gallery
2:35-2:45         Share Reflections with Other Side
2:45-2:55         Break
2:55-3:30         Analysis of First Exercise
3:30-4:30         Discussion of Getting to Yes and Theories of Negotiation

Assignment: Please read the entirety of Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In (any edition). Please come to class prepared to discuss the reading and to pose two comments or questions.

To be eligible for credit for the course, students must submit before the beginning of class via Canvas a Pre-Negotiation Course Profile, along with a written memo of minimum four (4) pages, maximum five (5) pages, that addresses the questions below. Please use 12 pt. Times New Roman font, 1.5 spacing. In your memo, please answer the following questions:

What are the downsides of bargaining solely over positions in a negotiation? Why and how could one shift the focus from positions to underlying interests in a negotiation?
Compare distributive bargaining to problem-solving negotiation. Can lawyers change adversarial bargaining to problem-solving in disputes and deals without risking exploitation? What comparative benefits do you think lawyers bring to negotiations?
Identify various kinds of interpersonal and intrapersonal people problems that might occur in a negotiation. Why and how could one separate people from the problem in a negotiation? Why and how could one invent and use options for mutual gain in a negotiation? What are possible obstacles to inventing and using these options?
Why and how could one develop and use objective criteria in a negotiation? Why and how could one develop and use their and the other side’s BATNA?
What is the definition of a successful negotiation?
What do you see as the biggest pro and the biggest con of the approach suggested in Getting to Yes.

Wednesday, August 24: Lawyer (Agent)/Client (Principal) Relationships, Professional Identity, Confidentiality, Negotiation Ethics

Class Schedule:

1:00-2:10         Discussion of Readings and Overview of Day
2:10-2:30         Prepare for Second Negotiation Exercise (with same party)
2:35-2:45         Break
2:45-3:30         Second Negotiation Exercise: Client Interview/Retainer Agreement
3:30-3:40         Share Reflections with Other Side
3:40-4:30         Analysis of Second Exercise

Assignment: Please read the Model Rules of Professional Conduct (focus on the Preamble and Rules 1, 4, and 8); read pp. 95-138 in Art Hinshaw & Jess K. Albert, Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics; and read Beyond Words (and complete the short listening test at the end of that article).

Please come to class prepared to discuss the readings and to pose two comments or questions. To be eligible for credit for the course, students must submit before the beginning of class via Canvas a completed listening test (located at the end of the Beyond Words article), plus a written memo of minimum three (3) pages, maximum four (4) pages, that addresses the below questions. Please use 12 pt. Times New Roman font, 1.5 spacing. In your memo, please answer the following questions:

What are potential professional and ethical dilemmas for lawyers (agents) when engaged in negotiations on behalf of clients (principals)?
Why do you think lawyers violate rules such as Model Rules 1, 4, or 8?
Can lawyers and/or clients lie in negotiations? What are the risks, rewards?
What is the role of confidentiality in legal negotiations?
What does it mean for a lawyer to listen beyond the words? What does it mean to lawyer “with” your client, rather than “for” your client? What is client-centered lawyering?

Thursday, August 25: Bias, Cultural Competence, Cultural Humility

Class Schedule:

1:00-1:40         Discussion of Readings and Overview of Day
1:40-2:00         Prepare for Third Negotiation Exercise (with partner)
2:00-2:40       Third Negotiation Exercise: Sally Soprano
2:40-2:50       Share Reflections
2:50-3:00        Break
3:00-4:00       Analysis of Third Exercise
4:00-4:30         Joint Planning for Fourth Exercise (with same party)

Assignment: Please read Sue Bryant and Jean Koh Peters, Five Habits for Cross-Cultural Lawyering.

Please come to class prepared to discuss the readings and to pose two comments or questions. To be eligible for credit for the course, students must submit before the beginning of class via Canvas a written memo of minimum two (2) pages, maximum three (3) pages, that addresses the below questions. Please use 12 pt. Times New Roman font, 1.5 spacing. In your memo, please answer the following questions:

In what ways might bias and culture influence lawyering with clients and others, and what potential issues might arise for you in client interactions and negotiations?
What are your biggest insights/take-a-ways as to each of the five habits for cross-cultural lawyering that you might use to help identify your biases and cultural norms, and those of your clients and others, to enhance your communications and negotiations?

Friday, August 26: The Art of Persuasion

Class Schedule:

1:00-1:40         Discussion of Video and Overview of Day
1:40-1:50 Prepare for Fourth Exercise (with partner)
1:50-3:00 Fourth Exercise: Multi-Party Negotiation
3:00-3:10 Share Reflections
3:10-3:20     Break
3:20-4:30    Analysis of Fourth Exercise, Concluding Lecture, Next Steps to Improve as a Negotiator

Assignment: Please watch the first 17 minutes of Mr. Rogers and the Power of Persuasion , http://www.youtube.com/watch?y=_DGdDQrXy5U (link also available on Canvas), and read Carmine Gallo, The Art of Persuasion Hasn’t Changed in 2,000 Years, available at www.carminegallo.com/the-art-of-persuasion-hasnt-changed-in-2000-years/ Please come to class prepared to discuss the video and reading, and to pose two comments or questions as to how the art of persuasion is relevant to negotiations and dispute resolution.

To be eligible for credit for the course, students must submit before the beginning of class via Canvas a written negotiation plan of minimum two (2) pages, maximum three (3) pages. Please use 12 pt. Times New Roman font, 1.5 spacing. In your negotiation plan, please include four columns, one each for you and your partner and one each for the other side and her/his partner. Identify what you understand/guesstimate each side wants (substantive and relationship goals/ positions), why (underlying interests), how (optimal negotiation styles), cultural/ethical issues, options for achieving mutual gains as to substantive and relationship goals, information you want to obtain/retain, aspiration points, resistance points (bottom lines), and BATNAs.

Cross-Cultural Dispute Resolution Fall, 2022
Mondays, 9:00 AM – 10:52 AM Anheuser-Busch Hall, Room

Prof. Juan Del Valle juandelvalle@wustl.edu

SYLLABUS

CREDITS: 3.0

COURSE DESCRIPTION

Disputes and dispute resolution frequently involve cross-cultural conflict. Effective dispute resolution methods involve additional elements than those used in intra-culture adjudicatory and amicable dispute resolution processes. Through a harmonic integration of legal, sociological, psychological, and neurological concepts and findings, this course is designed to equip students with valuable tools that will allow them to choose suitable dispute resolution methods and strategies for resolving cross-cultural controversies, and managing legal conflicts involving individuals from diverse cultures and backgrounds, including but not limited to gender, religion, national origin, and race. The course is designed to enhance negotiation and dispute resolution skills by increasing cultural intelligence (CQ) for legal professionals who will be involved in diverse conflict resolution scenarios, whether as attorneys, negotiators, facilitators, or adjudicators. The course includes assigned readings, drafting, and simulations related to cross-cultural dispute resolution.

ABA STANDARD COMPLIANCE

ABA Standard 310 requires “not less than one hour of classroom or direct faculty instruction and two hours of out-of-class student work per week or the equivalent amount of work over a different amount of time” for each credit hour awarded. This course has been designed to meet this requirement, through the inclusion of mandatory readings, free research and assignments that will be explained during the course and a final essay, expecting each student to spend at least two hours of out-of-class time for each one hour of in-class-time per credit hour.

COURSE OBJECTIVES AND LEARNING OUTCOMES

By the end of the semester, students will be able to effectively:

Recognize and utilize techniques to communicate and collaborate with cross-cultural stakeholders about their cases, the law, and policy in negotiations and mediation processes;
Recognize and understand the existence of biases and their impact in information-collecting processes;
Acknowledge ways to control biases and other informational barriers sourced in the adaptive unconscious;
Recognize and understand the impact of context and the distribution of power in negotiations and mediations, including culture, gender, race, national origin, religion;

Identify and understand the underlying interests of all of the stakeholders in dispute resolution processes where cultural difference may add challenges to the collection of information;
Recognize and understand opportunities for and barriers for stakeholders to create and claim value on a sustainable basis in dispute resolution processes.
Recognize and understand the impact of intrapersonal and interpersonal styles, and persuasion techniques in negotiations and mediations involving cross-cultural interactions;
Identify and utilize necessary oral and written advocacy skills with and on behalf of stake- holders in negotiations and mediations involving cross-cultural interactions;
Enhance communication, relationship development, trust building, and persuasion skills in negotiations and mediations involving cross-cultural interactions;
Enhance collaboration skills and maximize effectiveness working as a team member to advance the interests of the stakeholders and the process in negotiations and mediations involving cross-cultural interactions;

ASSESSMENT AND GRADING

Students are expected to prepare for every class. Participation in class discussions and class exercises, including a final project will be highly graded and will be assigned twenty-five percent (25%) of the final grade. A final, anonymous essay of approximately 6 pages will have a seventy five percent (75%) weight on the grade.

READINGS AND EXERCISES

Students must read and prepare for a discussion of the assigned readings prior to each session and come to class prepared to actively participate in class discussions. Students are encouraged to read any additional material they find useful to complement lectures. The instructors may suggest complementary readings during the course.

ATTENDANCE POLICY

This is a participatory course. Its success depends on everyone’s active participation and preparation for the exercises that are assigned. Students are allowed to miss 2 classes without that absence negatively impacting their grade; provided that, (i) I am notified in advance of your expected absence (preferably at the previous class) and (ii) any materials you are required to turn in are delivered to me before the class you will miss. Failure to provide advanced notice of an absence, turn in any assignments prior to class or missing more than two classes (absent extreme circumstances approved by Elizabeth Walsh, Associate Dean for Student Services) will count as an unexcused absence. We can be notified about expected absences in class or by email. Unexcused absences will negatively impact both the class participation and performance portions of your grade.

SIMULATION EXERCISES & CASE STUDIES

We will have 2-4 exercises in the course of the semester.

For the simulations to be successful and allow you to develop your skills, it is important that they are approached as seriously as you would approach a real-life negotiation. It is also important that you maintain your assigned role, try to maximize the outcome of the party you are assigned and fully prepare for each simulation. Most of all, I want you to enjoy every single session of this course.

LAPTOP POLICY

Laptops may be used during class discussions to take notes and used during simulations if you are instructed to do so. At no time may laptops be used to surf the web or communicate about subjects not related to the class. Cell phones shall NOT be used at any time while class is in session to make calls, take in-coming calls, or text, except during class breaks. Use of laptops, cell phones, or other electronic devices during class at prohibited times is extremely distracting and reflects a lack of respect to your classmates and me and will result in a failing participation grade for that class session.

CLASS PARTICIPATION

Your final grade will be a combination of the following:
Weekly Class Attendance, Class Participation, and Final Project (25%)

Weekly Participation:

Your weekly class participation throughout the semester, as demonstrated through preparation and discussion of the assigned reading materials, active engagement in the simulations, and negotiation planning memos will be worth 25% of your grade.

Final Essay:

75% of your grade.

*Required Course Textbooks

Fisher, R., Ury, W. (2011). Getting to Yes: Reaching Agreements Without Giving In. New York, NY: Penguin Books. ISBN-10: 0143118757; ISBN-13: 978-0143118756.

Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group. ISBN-10: 9781473684829; ISBN-13: 978-1473684829.

Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Continuum. ISBN-10: 1472922972; ISBN-13: 978-1472922977.

*Required Additional Readings

Cairns, D. (2005). Mediating International Commercial Disputes: Differences in U.S. and Euro- pean Approaches. Dispute Resolution Journal. Aug-Oct, 2005; 60, 3. Available at http://www.nysba.org/workarea/DownloadAsset.aspx?id=67718

Pair, Lara M. (2002). Cross-Cultural Arbitration: Do the Differences Between Cultures Still In- fluence International Commercial Arbitration despite Harmonization? ILSA Journal of International and Comparative Law. Vol 9, Issue 1, Article 2. Available at https://nsuworks.nova.edu/il- sajournal/vol9/iss1/2/

*Suggested Complementary Readings

Groves, K., Feyerherm, A., Minhua, G. (2015). Examining Cultural Intelligence and Cross-Cul- tural Negotiation Effectiveness. Journal of Management Education, Vol. 39(2) 209-243. Available at www.sagepub.com.

Class Schedule and Assigned Mandatory Readings

Week 1: Basics of Legal Negotiation and Dispute Resolution

Readings: Fisher, R., Ury, W. (2011) Getting to Yes. Chapters I – IV.

Week 2: The Psychology of Conflict in Legal Dispute Resolution: Cross-Cultural Perspectives on Existentialism, Psychological Perceptions in Conflicts, and the Impact of Emotions

Readings: Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Publishing Plc. Chapters 1, 2, 3.

Week 3: The Psychology of Conflict in Legal Dispute Resolution: Cross-Cultural Perspectives on Self-Esteem, Values and Polarities, Interpersonal Relationships, and Psychological Impact of Listening.

Readings: Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Publishing Plc. Chapters 4, 5, 6.

Week 4: The Psychology of Conflict in Legal Dispute Resolution: Cross-Cultural Perspectives on Assumptions and Biases, Amicable Dispute Resolution, Differing Models of Negotiations and Mediations, Empathy, and Neurology of Conflict Resolution.

Readings: Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Publishing Plc. Chapters 7, 8, 9.

Week 5: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Language Differences

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 1.

Week 6: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Cultural Conditioning

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 2.

Week 7, October 10: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Culture Categorization, Culture Relativism v. Constructivism, and Integration

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 3.

In-Class Activity Links: Video: Richard Evanoff. (2016). How can People from Different Cultures get Along with Each Other? TedX on Youtube.com. Link: https://www.youtube.com/watch?v=osZr7DLxs8A

Week 8: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Time in Cross-Cultural Negotiations

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 4.

Week 9: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Power- less Communication, Power of Paraphrasing and Reframing, and Communication Gaps

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 5.

Week 10: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Motivation and Trust-Building, and the Low-Trust Syndrome

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 9.

Week 11: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Meeting of the Minds, Relationship-Building, Giving-In as a Strategy to Overcome Low Trust and Ot- her Cross-Cultural Barriers

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 10.

In-Class Activity Links: Link: Rathi, A. (2015). This Simple Negotiation Tactic Brought 195 Countries to Consensus. Retrieved from https://qz.com/572623/this-simple-negotiation-tactic- brought-195-countries-to-consensus-in-the-paris-climate-talks/.

Week 12: Gender, Race, National Origin, and Religion in Dispute Resolution

Preparation for class: Please research on recent studies regarding the influence of race, gender, and religion in dispute resolution processes. Please be prepared to share your findings in class.

Readings: Pair, Lara M. (2002). Cross-Cultural Arbitration: Do the Differences between Cultures Still Influence International Commercial Arbitration Despite Harmonization? ILSA Journal of International and Comparative Law. Vol 9, Issue 1, Article 2. Cairns, D. (2005).

Week 13: Cross-Cultural Views of Commercial Dispute Resolution
Readings: Mediating International Commercial Disputes: Differences in U.S. and European Approaches. Dispute Resolution Journal. Aug-Oct 2005; 60, 3.

Cross-Cultural Arbitration: Do the Differences between Cultures Still Influence International Commercial Arbitration Despite Harmonization? ILSA Journal of International and Comparative Law. Vol 9, Issue 1, Article 2. Cairns, D. (2005).

Week 14: Giving, transparency, and building trust in Cross-cultural dispute resolution processes.

In-class activity: Final project presentation and discussion.

If you have any questions or comments about the courses, then please feel free to email me at tokarz@wustl.edu.

Karen Tokarz is the Charles Nagel Professor of Public Interest Law & Policy, Director of the Negotiation & Dispute Resolution Programs, and Director of the Civil Rights & Mediation Clinic at Washington University School of Law in St. Louis.

September 19, 2022 by hami3258

Christopher Corts

Better Conversations? Let’s Talk About It

By Christopher Corts, Professor of Law, Legal Practice, University of Richmond School of Law

Hello, reader! Today I am writing the first of a two-part series that will explore why and how we might facilitate better public conversations, especially when they include controversial topics. In today’s entry, Part I, I will explain why I think new ABA Standards 303(b) and (c) present an opportunity to have some hard but necessary public conversations. I will also share some thoughts on why we should have those conversations, why those conversations can be so difficult, and what we can reasonably expect them to accomplish. (Spoiler alert: not much! Even so, I think they are important for reasons I will explain.)

In a future blog post, Part II, I will give concrete ideas for how to plan and facilitate public conversations in a slower, less reactive, more intentional, inclusive, and meaningful way.

Whenever I facilitate a public conversation, my aim is to try and find a way to facilitate mutual compassion, respect, and trust among participants from the very start. Trust makes broader participation more likely. In my experience, when trust exists, it can also improve the quality of conversation by improving the likelihood that candid, authentic points of view will be voiced—and heard. We should want everyone to leave the conversation thinking something like: “I appreciate the opportunity to finally speak from my heart, and I have appreciated hearing others speak from theirs.” (Why I think this is so important will likely become clearer as you read on.)

Facilitating these kinds of conversations will be especially important as we implement new ABA standard 303(b) & (c). At the risk of understatement: there is nothing close to universal agreement about these standards. Even so, they exist. Now what?

Well…let’s talk about it.

For the unfamiliar: new ABA standard 303(b) mandates that “a law school shall provide substantial opportunities to students for…the development of a professional identity.” New ABA Standard 303(c) specifies that, as part of its curriculum, “a law school shall provide education to law students on bias, cross-cultural competency, and racism.”[i]

Considered together, these two new standards suggest that, if we are going to effectively teach students how to internalize a professional responsibility for clients and the integrity of the legal system [as we must, under Standard 303(b)], we must help students learn how to detect, address, and overcome the pernicious effects of racism and bias [Standard 303(c)] in our own profession.

“We” cannot credibly pretend to hold a unified, consensus point of view on any of this. And if you disagree with me …I invite you to take issue with me which helps to illustrate the point.

Talking about racism and bias introduces language, concepts, and (different) preferred modes of discourse. Educating students about racism and bias from a distance will not do. We desperately need to assume a curious, searching, self-aware, self-critical approach. And as we do: welcome the many different perspectives on what is worthy of criticism in our community.

This might be unpleasant—but it is not unhealthy. A healthy community must learn to live in conversation with itself through serious conflicts, or it cannot exist as a community. We need to model for our students a way of facilitating conversations designed to do that. Especially because we live and work in a dominant culture that indulges in calling-out more than conversation, values casting-out more than confession, and is more eager to cancel—or complain about cancelling—than showing signs of contrition.

We are a roiling mess, you may have noticed.

The American Bar Association’s “Profile of the Profession,” published annually, can help us start the hard conversations that we need to have. Before we get to any discussion of values, politics, perceptions, policies, aspirations, or goals….we need to understand who “we” are, demographically, and work our way out from there. Historically—and in the year 2022, specifically—where, when, and how well have we included (dare we ask: how well have we welcomed?) people of color, women, sexual minorities, people with disabilities, and other historically-excluded-or-marginalized people into all the corners of our profession?

To be sure, the data paints an encouraging picture of progress. Things are better, yes! And still so horrible. The data also paints a sobering, bleak, and utterly pathetic picture of how we continue to struggle to undo the stubbornly pernicious effects of America’s long history of racism, bias, and exclusion. With a shared understanding of the current demographic data (and recent trends) in view, we can move on to voicing the harder, more contestable, and wildly variable personal perceptions, beliefs, experiences, commitments, political convictions, and values that, collectively, are represented among us.

My own experience participating and facilitating hard conversations began over two decades ago, prior to law school, in a different profession. While pursuing a master’s degree in theology, I began to train and engage in ecumenical and inter-religious dialogues about a range of hotly-contested political, theological, and social issues. In recent years, in partnership with the Inner Work Center (formerly known as the Chrysalis Institute, located in my hometown of Richmond, Virginia), I have moderated a series of public conversations involving faith leaders who represent six of the world’s religious traditions, on a range of hot topics related to living, dying, sin, grace, justice, and social transformation. And, like all law professors, I have had many opportunities to either participate in or facilitate hard conversations in and out of the classroom with students, faculty, staff, and alums. (Most recently, these kinds of conversations have tended to recur in my work as a co-facilitator of a spiritual well-being program for first-generation 1Ls, called Just Practice; as co-facilitator of a Law, Race, and Power (LRP) Speaker’s Series; and as co-facilitator of a LRP spin-off program, Let’s Talk About It).

All of these experiences have helped me appreciate the value of a form of conversation that is distinct from arguments or debates. The point of these conversations is to speak with courage, hear with compassion, and be heard without being contradicted. And, by doing that, to simply know ourselves and each other better.

The starting point for these conversations is a mutual agreement to forswear any attempt to try and correct or convert dissenters. All speakers are liberated to voice their point of view without being interrupted, corrected, confronted, contradicted, or condescended-to. It is conversation that permits error, tolerates confusion, extends grace to the mistaken or offensive. It is focused on bringing hidden things to light—the deepest hopes, fears, grievances, and frustrations that too often remain hidden beneath the surface in everyday discourse. It is not a conversation that is burdened by usefulness; it is not designed to fix anything, resolve anything, or identify any commonality or unity. It is conversation that is beautiful and pleasing because it invites everyone present to speak and be heard if they wish, on topics of their choosing.
At their best, these kinds of public airings elucidate the sharp contours of conflict and difference. It’s hard work; many of us prefer conflict-avoidance. Speaking with candor and authenticity takes courage, but hearing those things without reacting or making snap-judgments does, too. To speak and hear things that expose deep differences requires a kind of humility and curiosity, a willingness to risk, and a radical tolerance. The goal is to get it all out—to hear “it” all, whatever “it” may be. And then to just let it be, for now.

In my experience, these kinds of conversations can be hard in two senses. First, they require at least some participants to hear and understand information that is in tension with—or possibly even in direct contradiction to—their perceptions, values, political commitments, religious convictions, or personal experiences. Everyone will likely hear (albeit at different times) stupid, offensive, wrong-headed, poorly-reasoned, outrageous, misguided, flat-wrong things. But this is not a problem; it is the point, really.

And so, hard as it may be…to engage in this conversation requires everyone to buy-in to the premise that it might be difficult to join in this conversation. Public displays of emotion are possible, maybe even likely. And that is ok. And everyone, of course, must be free to exit themselves from the conversation if they wish, whenever they wish.

These kinds of conversations are also “hard” in a second sense—in the way that they can tax the patience and goodwill of everyone participating in them. These kinds of conversation take a lot of time, intention, planning, and discipline. Bluntly: hard conversations do not seem to accomplish much. This can be especially irritating for lawyers, who tend to suffer from acute time deprivation. Most of us have been taught to value efficiency, crave productivity, and adopt a bias toward action. We are valued for our issue-spotting and problem-solving capabilities. It is hard to have a conversation that is not a means to some clear, desirable end.

For me? They can be difficult. But I have learned to appreciate how these conversations give a clearer field of perception, a sharper and more nuanced view of just how diverse, different, disunified, and riddled with conflict, division, and disagreement we really are. And I experience a strange satisfaction when, after the conversation, I can continue to dialogue and converse casually with the participants knowing more about just how radically different we are, in some ways—while enjoying the mystery of how we are able to co-exist with genuine kindness, respect, and civility, just the same.

On that hopeful and buzz-killing note, I will conclude this Part I. Next time, in Part II of this series, I will share concrete suggestions for how you might plan and execute public conversations about difficult topics in a way that is most likely to include the most people and elicit the most candid, forthright, and sincere comments possible—especially the ones that are voiced in criticism or dissent.

Until then…if you have any questions, concerns, or comments you would like to share, please email me! I would love to hear from you. You can reach me at ccorts@richmond.edu.

Christopher Corts, Contributor

[i] For a helpful introduction to these standards, see Neil W. Hamilton and Louis D. Bilionis, “Revised ABA Standards 303(b) and (c) and the Formation of a Lawyer’s Professional Identity, Part 1: Understanding the New Requirements,” PDQ in NALP Bulletin+ (May 2022).

August 26, 2022 by hami3258

Dawn Figueiras

One Law School’s Faculty-Approved Implementation Plan for Complying with the ABA’s Revised Standards 303(b) and 303(c)

The American Bar Association (ABA) requires that all law schools develop a plan in the fall of 2022 regarding how schools will implement in the fall of 2023 the revised ABA standards 303(b) and 303(c) that cover professional identity formation and bias, cross-cultural competency, and racism. Appalachian School of Law (ASL) tasked its Curriculum Committee to draft a proposed plan for compliance with the revised standards. The Committee, chaired by Professor Dawn Figueiras, included the Honorable Larry G. Elder, Professor Jeremy Hurley, Associate Dean of Students Shelly James, Dean of Experiential Learning Lucy McGee, Professor Ken Russell, Chief Academic Officer Laura Wilson, and President & Dean Keith Faulkner. The committee spent the summer discussing what ASL already does in these spaces and how ASL would utilize those efforts, along with new ones, to create a proposed plan for the faculty to review. Professor Figueiras participated in webinars sponsored by AALS, SUNY-University at Buffalo School of Law, and others, and gratefully utilized the resources links compiled and hosted on the Buffalo School of Law website. On August 8-9, 2022, at ASL’s Faculty Retreat, the Committee presented its plan to the faculty and engaged in productive discussions to revise the plan. Although the ABA did not set a date for completion of the plan, the full Faculty unanimously adopted the Implementation Plan below on August 16, 2022.

The following is the IMPLEMENTATION PLAN FOR REVISED ABA STANDARD 303’s REQUIREMENTS approved by the ASL faculty.

ADOPTED ASL Implementation Plan for Revised Standard 303 2022-08-16 (003)

A. Revised 303(b)(3)—“provide substantial opportunities to students for . . . the development of a professional identity.”

Orientation: Administration of the “Professionalism Oath” by a Virginia Supreme Court Justice or Court of Appeals Judge. The Professionalism Oath is modeled after the oath given to new members of the Virginia State Bar about their professional duties and responsibilities; students take the Oath after being sworn and sign the Oath as well.
Students take the Professionalism Oath at ASL
During Orientation/early during 1L year: Organize a visit to a Court, preferably a federal court; give students opportunities for reflection on their experience.
Fall Semester, 1L year: Revise “Introduction to Community Service” course to incorporate at least three lectures/sessions about concepts of professionalism and professional identity formation. Rename course: “Building a Professional Identity.
a. Possible examples of topics may include: What kind of lawyer do I want to be? What character/personality strengths do I possess and what does that mean for my career choices? How do I conduct myself in a professional manner? How do I incorporate community service and pro bono service into my career?
Spring Semester, 1L year: Lecture series for 1Ls (3 events) involving professionalism and/or professional identity formation. This would be incorporated as part of the Dean’s new “Professionalism, Leadership, and Transition to Practice” (“PLT”) program.
Summer after 1L year: Students participate in an Externship placement and keep a journal documenting their experiences and self-reflections.
2L year: The PLT program will incorporate four formal sessions on leadership; at least one session will discuss and encourage leadership within the legal profession.
Annually: Professionalism Dinner event (part of PLT program). Select a bar leader to receive a Professionalism Award from ASL. Invite attorneys and judges to attend, with professors, to engage in discussion with students regarding professionalism/ethical issues.

B. New 303(c)—“provide education to law students on bias, cross-cultural competency, and racism … at the start of the program … and at least once again before graduation.” “For students engaged in law clinics or field placements, the second educational occasion will take place before, concurrently with, or as part of their enrollment in clinical or field placement courses.”

Orientation: Lecture/session by ASL Diversity Mentor Virginia Supreme Court Justice Cleo Powell. (Fulfills the requirement for one educational experience at the start of the J.D. program)
Spring Semester, 1L year: Incorporate into the required “Introduction to Externships” course at least one mandatory session on bias, cross-cultural competency, and/or racism. (Fulfills the requirement for a second educational experience prior to/concurrently with externships and other field placements.)
Spring Semester, 2L year: Incorporate into the required “Professional Responsibility” course at least one mandatory session on bias, cross-cultural competency, and/or racism.
3L year: The Professionalism, Leadership, and Transition to Practice (“PLT”) program will include six sessions on Transition to Practice; at least one session will incorporate discussion of issues involving bias/cross-cultural competency/racism that arise in legal practice.
Curriculum-wide: Encourage all faculty to incorporate discussions of racism/cross-cultural competency/bias into their courses, wherever the regular course of study offers such an opportunity. The subject matter should be documented in the Course Description and in the Course’s Syllabus by the professor.
Elective Courses: Offer electives with a significant component addressing bias, cross-cultural competency, and/or racism. Elective courses will outline in their Course Descriptions/Syllabi how bias, cross-cultural competency, and/or racism are addressed in the course. Currently, ASL offers “History of Race and the Law” (co-taught by the Hon. Larry Elder and adjunct Professor and ASL Diversity Mentor Chris Young) as a general elective in both Fall and Spring semesters, and “Poverty, Health, and the Law” (taught by Dean of Experiential Learning
Professor Chris Young

Lucy McGee as a general elective in Fall and Spring semesters as well as summer sessions. This course is a pre-requisite for student participation in ASL’s Medical-Legal Partnership Clinic. The Clinic is a joint project of Ballad Health Systems, ASL, and Virginia Tech’s Pamplin College of Business.

Should you have any questions or if you would like to discuss the plan, then please contact Professor Dawn Figueiras at dfigueiras@asl.edu.

Guest Contributor Professor Dawn Figueiras

August 22, 2022 by hami3258

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