Document Type

Article

Publication Date

2009

Abstract

Given the fundamental importance of the attorney-client relationship in securing favorable outcomes for clients, legal services organizations that serve large populations of African Americans should employ African American staff attorneys because: (1) African American lawyers and clients share a group identity that makes it more likely that a black attorney will be able to gain a black client's trust; (2) black attorneys communicate more effectively with black clients; and (3) the perception of a judicial system that is unfair and racist is likely to encourage black clients to trust black lawyers more than white lawyers, who are more likely to be perceived as part of "the system."

Empirical evidence from the legal and medical fields show that African American clients are more likely to trust and communicate effectively with African American service providers. This Article also explores, however, the reasons why some African Americans may not want a black attorney. One reason is that black clients may feel "better off" with a white lawyer precisely because racism infects the American judicial system. Another reason may be that some African Americans may believe that white lawyers are better lawyers. Finally, in some circumstances, a black client may not want a black lawyer if he perceives the lawyer as "not black enough." Notwithstanding some of these preferences, however, the empirical evidence strongly suggests that more often than not, black clients prefer black lawyers.

Because race consideration in staffing implicates discrimination law, this Article also considers recent Supreme Court precedent that affects the ability of certain organizations to engage in color-conscious actions. According to a plurality of the Court in Parents Involved in Community Schools v. Seattle School District No. 1, the school assignment programs at issue conflicted with the premise of Brown, which requires strict adherence to colorblindness. Unfortunately, this approach ignores the continuing power of race and is a stark departure from Justice Blackmun's defense of affirmative action in Bakke. While a definitive conclusion as to when the law allows color-consciousness is difficult in light of the Court's recent decisions, the theme of this Article echoes Justice Blackmun. In essence, this Article argues that we cannot solve the problems that face African Americans by removing race-consciousness from the dialogue about diversity in the legal profession.

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