The Case for Cultural Competency (Article in NY Law Journal)

The Case for Cultural Competency

Its importance lies in the potential for significant impact on the delivery of legal services.

Katherine Frink-Hamlett

When considering the concept of cultural competency within the legal community, it initially struck me as some amorphous and potentially elusive dynamic that would be difficult to discern with any reasonable certainty.

Diversity, while not simple to achieve, is fairly obvious when you see it and is glaringly apparent when it doesn't exist. Inclusion, again, not an easy accomplishment, but still, it is another one of those attributes that we can put a finger on: It can be recognized, documented and quantified. But cultural competency poses much greater challenges.

First, what the heck is it? Cultural competence is defined as a "set of academic and personal skills that allows [individuals] to increase [their understanding] and appreciation of cultural differences between groups."¹ It also has been defined as "the understanding of diverse attitudes, beliefs, behaviors, practices and communication patterns, attributable to a variety of factors (race, ethnicity, religion, SES [socio-economic status], historical or social context, physical or mental ability, age, gender, sexual orientation, or generational and acculturation status).²

In effect, cultural competence is a professional skill that allows individuals and institutions to effectively communicate, negotiate and advocate across different cultural experiences and differences, irrespective of whichever laundry list of attributes they may (or may not) possess.

Okay, now that we have a general sense of the cultural competency dynamic, so what? What does cultural competency have to do with the law?

Arguably, nothing; a big, fat zero. Cultural competency really does not have significant relevance to the law 

per se: it's not an element of any statute or common law analysis that comes to mind. However, and as more fully explored here, cultural competence can have a significant impact on the delivery of legal services.

So, should law schools and law students be concerned about cultural competency as an integral component of legal education? Let's face it: It would be difficult, if indeed not impossible, to identify whether a law student is culturally competent by reviewing her resume or class rank.

In a legal market that has witnessed a contraction of available opportunities for law school graduates, the notion of developing culturally competent law students may not be considered a priority for law school deans or administrators. However, despite the marketplace challenges that plague both law students and recent grads alike, there is little doubt that law students are better served by law schools that include cultural competency in their curricula. And, from a legal recruiter's perspective (that would be me), a culturally competent practitioner, particularly in a global economy, is a gem.

Angela O. Burton, an associate professor at CUNY School of Law of New York, also considers cultural competency to be an extremely necessary skill that should be introduced to law students early on in their legal instruction and reinforced throughout their law school experience.

Professor Burton explains that CUNY is a special law school because it serves a dual mission: preparing law students to practice in the service of human needs and providing access to the legal profession to underrepresented populations. As a result, it boasts a diverse and inclusive student body and faculty:

"Because so many of our students serve a diverse community we have no choice but to incorporate cultural competency into our curricula."

To that end, cultural competency is taught as a distinct topic along with ethics, professional responsibility and substantive law courses. Further, the faculty at CUNY has studied the issue of cultural competency so that it is included in CUNY's curriculum in a deliberate and methodical way.

Among Professor Burton's courses is a second-year lawyering class involving children, families and the child welfare system. Clearly, this is an area fraught with race, class and cultural issues that emerge with respect to cases involving child abuse and neglect.

In addition to bringing in practitioners who speak to the real life experiences of clients, Professor Burton also includes specific segments designed to develop cultural competency skills. On some occasions, the cultural competency component generates as much debate as the issues surrounding substantive law.

For example, in one case, a parent was accused of neglect because the child was required to kneel on rice as a form of discipline. One student observed that cultural competence was irrelevant to the issue since the final disposition of the case was a finding of neglect and the determination would remain unchanged whether the lawyer was culturally competent or not.

Legally, correct; but, upon further examination, and as explained by Professor Burton, the legal outcome many not change but utilizing a culturally competent approach could very well impact the manner in which the attorney advocates for, and counsels, her client. Without minimizing the harm done to any child who is the subject of abuse or neglect, it is relevant to understand that the practice, while an act of neglect, represents a cultural phenomenon that had been passed down for generations.

So, instead of seeing the client as an uncaring or hateful parent, cultural competence enables the law student/advocate to view the client through a culturally competent lens. Presumably, this approach paves the way towards compassionate advocacy and instructional counseling because the client's motivations are understood rather than demonized.

For these and other related reasons, Professor Burton believes that it is critically important for law students to recognize cultural competence as a distinct issue.

"Actually naming the thing raises awareness and helps our law students become better lawyers and more effective advocates."

A Similar Perspective

Cynthia Ward, assistant dean of students and professor of law at Thomas M. Cooley Law School shares a similar perspective. Having served as a public interest lawyer for the developmentally disabled, low-income women of color and the elderly, Professor Ward recognized early on the need for cultural competency development for law students and took the extra step of designing a two-credit elective course specifically dedicated to teaching cultural competency skills.

The course is primarily experiential in nature. It begins with a cultural competency assessment survey and includes various exercises to enable students to have a better appreciation of their clients' experiences. In addition, all law students with externships are required to dedicate a week to cultural competency skill building that includes the creation of a reflective journal.

Professor Ward becomes particularly excited when students share an "Aha" moment, an occasion where they understand why a client with a completely different cultural background has engaged in undesirable and, sometimes, illegal conduct.

Even when an exchange is a display of cultural incompetence, it can still yield a valuable learning lesson. For example, a homeless Latina woman was extremely concerned about satisfying a debt owed by her incarcerated son. She was advised that since it was not her debt she was not legally obligated to pay it and encouraged to focus on improving her own situation. However, her overwhelming sense of guilt surrounding the incarceration of her son, her particularly close relationship with him and the duty she felt as a mother overrode any applicable legal analysis.

Because the advocate failed to discern these nuances, the communications between client and attorney were stifled and ultimately hampered the attorney's ability to serve the client. So while Professor Ward doesn't claim that cultural competency can be achieved in a 14-week course, like Professor Burton, she considers it to be essential for law students to be mindful of the issue and how it translates to the practice of law.

Application in the Private Sector

Possessing cultural competency skills is not limited to public interest practitioners who serve disenfranchised or marginal populations. It is especially relevant in the private sector as transactions and legal disputes increasingly span the globe.

As succinctly stated by Nelson P. Miller, associate dean and professor at Thomas M. Cooley Law School, "once seen as a social imperative, cultural competence is now viewed as a business imperative."

Professor Miller explains that changes in local, regional and international demographics require lawyers to have cultural competency skills to reach broad business segments. Paulette Brown, a partner at Edwards Angell Palmer & Dodge and chairperson of the firm's diversity committee, agrees.

Ms. Brown is a well-known and highly regarded diversity trailblazer in her own right. As one of the first black female partners, an accomplished practitioner, the recipient of numerous legal awards, a ubiquitous panelist and voracious writer, she knows a thing or two about what's required for law students to become successful practitioners. So for her and the firm, cultural competency is not only desired but required.

As Ms. Brown emphasizes, lacking cultural competency makes "it difficult to comply with the client's needs and difficult to have a reasoned resolution to client problems." For the firm, developing culturally competent practitioners enables them to deliver "something other than homogenous opinions."

Ms. Brown further explains that "[cultural competency] adds value to our clients and ultimately to the firm because you need to be able to relate to the client—you make them look good and operate in a manner that is consistent with their goals and objectives."

From the top of its ranks to entry level associates, cultural competency is interwoven throughout the firm's diversity activities beginning with law students who are routinely invited to firm-sponsored receptions that include cultural competency discussions and events.

For example, one group of law students was treated to a special movie presentation regarding Brown v. Board of Education that included a question and answer session with the movie's director. Further, cultural competency is included in the firm's diversity training retreats for higher level practitioners.

And here's another observation: Ms. Brown noticed that several law students now specifically seek firms that include cultural competency as a component of their training and orientation. For these law students, a firm's emphasis on cultural competency serves as an indicator that the firm may be progressive in other areas as well.

Part of Law School Curriculum?

Ms. Brown considers that law schools can certainly play an important role in developing culturally competent law students in light of the growing importance of this skill to the legal community. She cites to the fact that a few states have recently considered including a cultural competency component in their continuing legal education requirements.

A relatively recent report, the "Carnegie Report on Educating Lawyers," specifically recommended the inclusion of cultural competency courses to the American Bar Association's Accreditation Standards Review Committee as part of the Committee's review of the ABA Standards for Approval of Law Schools:

Carnegie is instructive about the types of curricular criteria the ABA can adopt to guide law schools in their comprehensive and continuous development of law students' professional identities. …All courses involve ethical considerations. Pulling them to the forefront is the professor's duty. …Schools can also create a number of ethics-specific electives such as…Cultural Competency in the Legal Profession.³

Amy Timmer, one of the authors of the article in which the Carnegie recommendation is made, and associate dean of students and professionalism and professor of law at Thomas M. Cooley School of Law, stresses that cultural competency skills enable law students to be less self-focused and effectively connect to other people. For her, the whole point of practicing law is to be able to make those connections whether you're a judge, a private sector practitioner or a public interest advocate.

More than just a buzz term, cultural competency is a vital component of law practice and a necessary skill. Not only does it naturally creep into various law courses like criminal procedure, immigration clinics, international arbitration, etc., it is a distinct and separate phenomenon that requires specific instruction for this next generation of 21st century law students and practitioners.

Katherine Frink-Hamlett, a graduate of New York University School of Law, is president of Frink-Hamlett Legal Solutions Inc.