Race Ethics: Colorblind Formalism and Color-Coded Pragmatism in Lawyer Regulation.

TABLE OF CONTENTS INTRODUCTION I. THE STANDARD CONCEPTION OF RACE IN THE LAWYERING PROCESS II. RACE-NEUTRAL FORMALISM A. RACE-NEUTRAL FORMALISM IN PRACTICE B. RACE-NEUTRAL RULE FORMALISM 1. COMPETENCE 2. DILIGENCE [...]
The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville "Unite the Right" Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more generally. Spoken in archetypal tropes, seen in stereotypical images, and heard in stock stories, race infects the central lawyering roles of advocate and advisor, echoing inside and outside courthouses and resounding in the rules of professional responsibility and the norms of professionalism. By turns cast in colorblind, color-coded, and color-conscious oral, written, and symbolic forms, the meaning of racial identity, racialized narrative, and racially demarcated community is both constructed and contested in the lawyering process and in the regulation of lawyer conduct. In prior writings across the fields of civil rights, criminal justice, and poverty law, I mapped the intersection of race, representation, and ethics against the contours of the lawyering process, professional regulation, and legal education, especially within law school clinics and indigent civil and criminal justice systems. The purpose of this article is to revisit that body of writing and to reevaluate the continuing uses and the persisting stigma harms of race in contemporary civil rights and criminal justice advocacy, particularly in cases of racial violence. The goal of revisiting and enlarging this previous work is to grasp more fully how civil rights lawyers, prosecutors, and criminal defense attorneys use race to advantage or disadvantage Black litigants, victims, jurors, witnesses, and even other lawyers--and, moreover, how they use ethics rules and standards designed to regulate racial bias and prejudice to justify their conduct.