2023 Resolution for the Legal Profession: Using Our Privilege in a Positive Way to Make the Justice System Fairer and More Equitable for All

December 30, 2022

This year marks my 7th annual resolution for our legal profession, and while it may not be as catchy as prior ones like my 2022 resolution that the bar exam must go (and it still needs to go!), this one seems particularly appropriate as we look ahead to 2023.

When we hear the word privilege today, many try to associate it with negative connotations of guilt or shame. But unless it was ill-gotten or is being misused, that is not the right way to look at it. Privilege can be a big positive when we use it for good, and as lawyers and legal professionals, in varying degrees we all have a distinct privilege that uniquely positions us to make the justice system fairer and better for all.

The events of the past three years make this a unique time of opportunity to advance our common cause if we embrace our privilege in this way. And Arthur Ashe and Bob Seger are among the sources of inspiration you will see as you read on!

The Inspiration for this Resolution

The original inspiration for this year’s resolution was a moving speech in 2017 by Toussaint Romain, then a public defender in Charlotte and now the CEO for the Charlotte Center for Legal Advocacy. He was speaking on race and justice to a national group of very privileged and largely white access to justice leaders and state Supreme Court Justices and talked about how we all can and should use our privilege to make the justice system more fair and equitable. He did not pull any punches on how we got here as a country but put the focus squarely on what we are going to do to make things better by using our privilege as a positive force. I could not possibly do justice to him by trying to summarize his talk in a short post, but I can say it ended with a rousing standing ovation, and it remains one of the most memorable presentations I have ever seen.

His approach was compelling then and seems even more on point today in our quest to improve access to justice and make the justice system more fair, equitable, and effective for all. After the events of 2020 led to the long overdue reckoning with racial injustice that has rightly moved these issues much higher on the radar of our profession and the broader justice system, we collectively now are reaching the more challenging “what are we going to do about it” phase.

It indeed is real progress that courts, law firms, and other organizations–the CBF included–all now formally include a commitment to diversity, equity, and inclusion as one of their core values and regularly talk about it. But that is just the first step and won’t mean much without actions to back it up.

The necessary actions are a mix of things we can do now (and many are doing already) and longer-term initiatives that will require a sustained commitment for many years to come. Each of the three DEI elements are distinct and interrelated building blocks for a justice system that is truly fair, accessible, and equitable for everyone in our community and go hand in hand with the continued work to expand the pool of free and affordable legal help, make the courts more user-friendly and accessible, and improve fairness throughout the system. 

So yes, plenty of work ahead of us. And we’ll have a far better chance of getting there in a sustainable way if we avoid “us and them” narratives and focus on the shared values that bring us together to address these daunting challenges. While the degree of our privilege will vary, using that as a lens is a good way for every one of us to reflect on the privilege we have and how we can make things better individually and collectively as a profession. In that vein, this year’s resolution focuses on the unique privilege those of us who are lawyers, judges, and other legal professionals have when it comes to access to justice.

Wherever we are in the legal community, our platform gives us a unique opportunity to help make our justice system live up to its ideals by being more fair, equitable, and accessible for everyone in our community. This is our proverbial backyard and common cause as a profession, and if we don’t take the lead in this cause, who will?

The Privilege Spectrum

I promised Arthur Ashe at the outset, and this is where he comes in. He was best known as a trailblazing and legendary tennis player, but he used that platform to do so much more and was the source of much wisdom during his amazing life. This quote of his is particularly on point for this year’s resolution:

Start where you are. Use what you have. Do what you can.

That is a great way of reflecting on the privilege each of us has and then using what we have to make things better. There is no question some of us are in more privileged positions within the legal community and have had easier paths to get to where we are today as a result, and that is especially true for those of us in leadership positions, myself included. That both gives us a greater responsibility and a greater opportunity to make a difference in this common cause. It is a variation of the adage that “to whom much is given, much is expected,” and we need to lead by example.

That said, we all have a level of privilege wherever we are in the profession that we can use to advance the cause and help others, including the special license and knowledge we carry, the unique experience and perspective that gives us, and the leadership responsibility we are entrusted with as officers of the court system.

Time, Money, AND Influence

These are the three important ways we all can use our legal privilege to make a difference in varying degrees, with the influence part too often overlooked yet often the most powerful. Some of us have more time, more money, and/or more influence, but all three are critically important to advance access to justice and in the broader efforts to make our profession and justice system more fair, equitable, and effective.

There are many ways to get involved in pro bono and many ways it makes a difference in our community. We also are in a unique position to use our time for mentoring, training, and efforts to improve the profession and legal system.

Contributing money to support these efforts is a critical corollary to the ways we use our time and influence, as we have a unique understanding and connection to these issues. While equal access to justice is everyone’s responsibility as a core value of our country, if we don’t take the lead in supporting these efforts, how can we expect others outside the legal community to do so?

And that leaves the important matter of using our influence to advocate for support of the pro bono, legal aid, and dedicated advocacy work on the front lines as well as the systemic improvements necessary to make the profession, the courts, and the overall legal system more fair, equitable, and accessible. We all have the special knowledge and experience to do this as individuals, and if we are ever able to put the collective influence of our legal community together in the legislative and policymaking process, it could be one of the most powerful political forces ever.

In each one of these areas, those of us in leadership have heightened responsibility by virtue of that privilege to need to both lead by example in our own work and use our roles to advocate for policies that prioritize pro bono, financial support for legal aid and other access to justice efforts, and support for necessary systemic reforms.

Beware the Comfort Zone that Privilege can Bring

This is where Bob Seger comes in.

One of his all-time best songs was “Against the Wind,” and while I can’t say for sure this is where he was going—the song clearly has personal meaning to him–I have always interpreted it as not losing the idealism and spirit to stand up for what is right once we are older and have “made it.”

…..

“Well those drifter’s days are past me now

I’ve got so much more to think about

Deadlines and commitments

What to leave in, what to leave out

Against the wind

I’m still running against the wind

I’m older now but still runnin’ against the wind”

Those of us in the most privileged positions in our profession—including those in leadership roles in law and the justice system–tend to be older and more set in our ways, and there is a natural tendency to want to protect what we have even when the system may not be working so well for others.

While that is not an irrational way to look at things from a self-interest standpoint, those of us in these positions need to push back on ourselves to balance that natural tendency with recognition of the changes necessary so that the profession and justice system is fair, equitable, and accessible for everyone.

And let’s face it, while we can and should celebrate the real progress we’ve made on these fronts in recent years, the fact remains that the average person in our community cannot find affordable legal help when they need it, our profession is still nowhere near representative of the diversity of our community (and especially not in leadership roles), and we are still a long way from a justice system that meets our ideals.

I am not suggesting that we need a revolution in the parts of the profession and justice system that are working well; that would not solve anything. However, that does happen to be where the most privileged of us in the profession sit, and we need to keep running against the wind and use that privilege of our leadership roles to help make sure the profession and justice system are working well for everyone in our community.

Bring on 2023

I recognize that I’m near the top of the privilege chain by almost any measure, both in life and the legal community, so I’ve got my work cut out for me in the new year and beyond to carry out this resolution. All of us in the legal community have some privilege to bring to this table though, and if we come together in that common spirit, we have some real opportunity to make our profession and justice system fairer and better for everyone.