Chapter 4: Reflective Practice, Implicit Bias & Cultural Competence
28 4.3 Cultural Competence & Working with Clients
Gemma Smyth
Introduction
Cultural competence is more urgent than ever in the profession of law, not only in practices like international trade but also in administrative, criminal, family, environmental, and virtually every other area. As a very simple level, cultural competence is essential to properly understanding a client’s narrative and doing no (further) harm.
This section uses the term “cultural competence” while acknowledging that other associated terms add depth and nuance to this important practice.
There are many other approaches to this idea explored below, but this chapter primarily uses the term “cultural competence” both because of its ubiquity and the likelihood that this language will be most resonant in a professional workplace context.
Cultural Competency
Cultural intelligence is defined as “the ability that individuals have to adapt more effectively to a new cultural setting in which people think and behave differently” (Ming Li, 2020). There are four dimensions to this concept; metacognitive, cognitive, motivational, and behavioural. The metacognitive dimension speaks to the process of acquiring knowledge and understanding of this acquired knowledge while an individual is engaging or continues to make sense of their intercultural experience. The dimension of motivation is the genuine interest and persistence an individual has for understanding, experiencing, and interacting with another culture (Ming Li, 2020) and Bhagat, 2006). One essential aspect of cultural competence is cultural humility. Cultural humility is defined as “a lifelong commitment to self-evaluation and critique, to redressing power imbalances… and to developing mutually beneficial and non-paternalistic partnerships with communities on behalf of individuals and defines populations” (Ella Greene-Moton and Meredith Minkler, “Cultural Competence or Cultural Humility? Moving Beyond the Debate”, online: (https://journals.sagepub.com/doi/full/10.1177/1524839919884912#, at 123).
Humility, in this form, is essentially a commitment to learning, self-evaluation and self-critique.The ability to engage in an authentic internal and intrapersonal dialogue, involves a commitment to good relations, admitting ignorance and humbly seeking out further knowledge. This approach requires acknowledging clients as experts in their own lives, and treating the lawyer-client relationship as an interaction of expertise to redress a wrong or resolve a dispute.
While cultural humility is essential in approaching clients in a respectful and culturally appropriate way, it is also important to cultivate cultural awareness. Essentially, lawyers should be aware of the impacts of culture in human interactions. This might include substantive knowledge of different cultures alongside willingness to learn.
In a law practice, it is also possible that one lawyer might not serve all clients’ needs. There is a complex interplay between client choice, lawyer professional responsibility, and culture.
Cultural Competence in Law Practice
In a firm or clinic institutional context, cultural competence is the accumulated ability of a firm or clinic to organize its affairs in accordance with cultural humility and awareness practices. This might include better practices to increase client communication and understanding, reducing power imbalances and addressing bias. These practices increase a firm or clinic’s ability to appreciate differences, build better relationships, adduce evidence, and meet client needs. In this way, cultural competence goes beyond a focus on the individual to a more systems-level approach.
Cultural Competency & Cultural Safety
The concept of “cultural safety” is important in all relationships, but it has received scant attention in the lawyer-client context. The First Nations Health Authority defines cultural safety as “an outcome based on respectful engagement that recognizes and strives to address power imbalances inherent in the health care system. It results in an environment free of racism and discrimination, where people feel safe when receiving health care”. The same approach can be applied to lawyering. “Cultural safety” goes beyond concepts of cultural competence and cultural dignity, although it requires both. Cultural safety means different things to different people. One model of cultural safety from the Haudenosonee Confederacy is set out here:
There are many ways lawyers can support cultural safety. It might include physical cultural safety, such as:
- ensuring there is food or drink available,
- ensuring client rooms and the entrance to the clinic or firm is accessible, has multi-language signage, has gender-neutral and barrier-free washrooms, and,
- ensuring employees have diverse identities and are trained in culturally safe ways to provide service.
It might also include emotional cultural safety, including:
- providing non-judgmental service (for example, crying and other emotional displays are supported),
- ensuring lawyers can work with clients who might disassociate or show other trauma symptoms, and,
- ensuring lawyers know how to respond to high-crisis situations.
It might also include spiritual cultural safety, including:
- providing space to pray or meditate,
- supporting smudging and other practices, and,
- working with clients to incorporate their cultural understandings of legal orders into their advocacy.
One of the most powerful examples of not incorporating culturally competent approaches, thereby leading to culturally unsafe practices is in Lucie White’s “Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G.”, in which a lawyer provides representation (procedural justice) for a Black female client accused of welfare fraud. In this story, the client experiences the dual forces of sexism and racism (procedural and systemic) in what is ultimately culturally unsafe representation. This story reminds lawyers of the importance of seeing clients, allowing for a new or different narrative to emerge (even when they think they “know” a client/case), deep listening, and supporting a client’s narrative to weave through and guide their legal mater. In a Canadian context and in a nod to White’s piece, Vera Roy writes about similar themes in a judicial context (“The Erasure of Ms. G: The Cultural Specificity of Substance Abuse and Adjudication Without Imagination”), although in relation to the stereotyping of Indigenous women. In Roy’s analysis,
“The judgments make it clear that the liberal philosophical foundation of Anglo-Canadian law, personified in the atomistic and autonomous rights-holding subject, prevents the legal system from meaningfully addressing the complex issues at the root of the case. The discourse abstracts Ms. G. from her social context and ignores her experience of substance abuse as an Aboriginal woman, an experience informed by the historical effects of colonial policies, as well as law and racism in Canadian society in general…” (at 109-110).
Eveline Milliken also writes about incorporating cultural safety in lawyering using various approaches including silence, space and time:
“… without developing that relationship and bridging the silence, the information gleaned [in the interview] will be of questionable value. Pressing for “just the facts, Ma’am” may satisfy the low-context professional’s need, but will fail to elicit “the whole truth”. Such an approach will not serve the client and will confirm [their] sense of frustration. Paradoxically, spending the time and encouraging relationship leads to gathering “the facts” more quickly, rather than when there is a lack of trust when information is not shared.” (Eveline Milliken, ““You Have the Right to Remain Silent…But I’m Your Lawyer: You Are Supposed to Talk to Me!: Working Towards Creating Culturally Safe Working Relationships” (2013) 37 Man L J 403.)
Cultural Competence as Professional Duty
Despite its importance, there is no duty of cultural competence explicitly outlined in any provincial or territorial professional code of conduct in Canada. Rather, the Rules of Professional Conduct require, essentially, adherence to existing human rights law in Ontario (Rule 6.3.1):
“a lawyer has a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.”
Professor Voyvodic argued that cultural competence should be located as a professional responsibility. As she wrote,
Locating cultural competence within legal ethics is necessary to trace its normative roots, and also to underscore the obligation of this self- regulating profession to promote understandings of lawyer competence which accord with both the letter and spirit of codified rules of professional conduct, and which serve the public interest.
The degree to which this vision will become a reality is certainly in question, particularly with active movements to stop what is framed as “compelled speech” in any Law Society regulation.
Critical Perspectives on Cultural Competency
Cultural competence training in some form has become more common both in legal education and the profession, although unquestionably inequality remains. But the question remains, are the workshops, training, retreats, and so on enough to effect meaningful change?
Lawyer Cynthia Pay wrote compellingly about the dangers of this approach in failing to instill lifelong behavioural changers. As she argues, if improperly administered, education on cultural competency can create impacts well into the legal profession of an individual. Pay also argues that the tendency in short workshops to use specific examples of racism, sexism, ableism, or other forms of discrimination can in fact eliminate the ability of a person to address implicit bias, stereotyping, and systemic forms of discrimination.
Clients & Law Students
While cultural competence in a clinic or externship context is typically introduced from the perspective of the lawyer working with the client, there are also many situations in which racialised, disabled, female-identifying, Muslim women, and LGBTQ2S+ students working in law contexts experience discrimination. Depending on social location, lived experience, workplace supports, and policies, these instances can be disorienting and re-traumatizing. Richelle Samuel writes about her experiences as a clinic student whose clients made racist comments (“Legal ethics and Moral Dilemmas: Strategizing around Race in the Provision of Client Service (2001) 16 Journal of Law and Social Policy 63), ultimately recommending that clients who exhibit consciously racist behaviours toward students not be served by a legal clinic.
Reflection Questions
- Which aspects of cultural competence (or cultural safety, cultural humility or other concepts explored above) resonate with you and why? Which are most salient in your externship placement?
- Does your workplace have policies regarding clients’ discriminatory behaviour? Have you experienced discriminatory behaviour by clients in your workplace context?
Working with an Interpreter
Some clients require an interpreter to work effectively and ethically with their lawyer. Interpretation works differently depending on the context. Some firms or clinics have interpretation services immediately available by phone. Others have lawyers in-house who speak multiple languages. There are many good practices when working with an interpreter. The list, below, is not exhaustive. Each workplace will have specific practices and protocols, particularly depending on whether interpretation services are professional or informal.
- Schedule more time. It will simple take longer to work effectively with an interpreter.
- Clarify the interpretation ground rules up front. What is the relationship between the interpreter and the client? Do they actually speak the same language and dialect? Are there intercultural tensions you are not aware of? Clarify confidentiality expectations. You might also wish to request direct translation. It is impossible to expect exact translation of every word, but most interpreters understand their job is to convey the client’s words as closely as possible.
- Avoid idioms. Try to speak plainly and clearly, and avoid using expressions that have a particularly socio-cultural meaning. Consider, “lead a horse to water”, “walking on the wild side”, or the many other unique but difficult to translate expressions in every culture. Likewise, avoid short forms, abbreviations or other legal terms without explaining them.
- Look primarily at the client, not the interpreter. Your relationship is with the client.
- The interpreter is not a lawyer and should not be expected to perform duties other than translation.
Exercise
Watch the video below for many other practices that are positive, but also many that should be avoided when working with an interpreter. Write down as many as you notice during the course of the video. Note that this is an American video with terms specific to that context.
