Disability Within the Legal Profession

We, the legal community, have a pressing need in our profession to address disability inclusion.

Diversity is an essential thread in the fabric of practicing law.  The North Carolina State Bar has published a statement affirming that “diversity and inclusion [are] essential elements of promoting equity and preventing discrimination” and that the Bar “recognizes diversity, equity, and inclusion as core values and is committed to being intentional about incorporating diversity, equity, and inclusion into its operations and mission.”  It is clear that diversity awareness and inclusive practices are fundamentals to our profession, and, as a part of this work, we must discuss disability inclusion.

The disability community has been and currently is a significantly marginalized and overlooked population in the legal profession.  The 2021 ABA Model Diversity Survey found that “[a]ttorneys with a disability are generally underreported and/or underrepresented at every level and are significantly more likely to work in the “Other Attorney” role compared to all other groups within law firms.“  The survey also found that “[f]or the most recent year, most law firms did not hire a single attorney [who] self-identified as . . . having a disability.”  In the realm of overall disability demographics in the legal profession, the National Association for Law Placement 2021 Report on Diversity in U.S. Law Firms reported that 1.22% of all lawyers identified as having a disability, which is a slight increase from the 2020 report where only 0.88% of all lawyers identified as having a disability.

The numbers starkly demonstrate that persons with disabilities, to put it lightly, are drastically underrepresented in the legal profession.  As attorneys our instinct may be to jump into investigative and problem-solver mode immediately, brainstorming what is going on here and how we can help—why are these numbers so low? What barriers do we need to remove? Are these results skewed due to low reporting rates? Are things really this bad?  However, we should also be mindful of what the disability community is experiencing to help frame our solution building.

North Carolina has a particularly entrenched history of discrimination against persons with disabilities, infamously stemming back to the eugenics movement where forced sterilization of disabled individuals was legal in North Carolina until 2003.  Let me repeat and rephrase that, the law permitting the inhumane act of forcing a person with a disability to involuntarily undergo an invasive sterilization surgery was not repealed until 2003 (however, for clarity, it is still legal for a “ward with a mental illness or intellectual disability” to be sterilized so long as the procedure is “medically necessary”).

Let us also acknowledge recent legal developments regarding the forced use of electric shock on persons with disabilities.  In 2020 the U.S. Food and Drug Administration issued a ban on the use of electric shock devices when treating certain behaviors (that are largely associated with psychological and developmental disabilities), due, in part, to the serious risks of harm associated with electroshock; this ban was subsequently overturned by the U.S. Court of Appeals for the D.C. Circuit.  Further, the #FreeBritney movement, from 2009 to 2021, garnered significant public attention regarding the abuse and mistreatment that can, and does, occur for persons with disabilities with guardianship/conservatorship arrangements.

While we could engage in the academic exercise of contemplating the law on such topics, we cannot ignore the ethical impact that such laws have had and are having on the disability community—and we cannot ignore our role in this.  We, the advocates for justice—the lawyers, judges, and representatives of our community—have passed these laws, upheld these laws, and enforced these laws.  As a profession, we are the reason these laws exist and impact the dignity, personal freedoms, and overall quality of life a person with a disability can expect to have in society.

Due to disability stereotyping (such as in pop culture and entertainment portrayals of the disability community), improper assumptions and judgments are often made towards persons with disabilities, particularly related to a person’s ability and appearance.  This concept can extend to how, in North Carolina, we have chosen to define disability and label disabled attorneys.  Under the North Carolina State Bar’s Rules of Professional Conduct, a disability is defined as “a mental or physical condition which significantly impairs the professional judgment, performance, or competence of an attorney.”  Additionally, North Carolina barred attorneys who have been proven as disabled, within the meaning of the Bar’s definition, through a disability hearing/proceeding will receive an order from the Bar that will either continue the attorney’s disability inactive status or transfer the attorney to a disability inactive status.  Our profession, more than any other, understands and respects the power of language; however, underpinning our profession’s internal definition and approach to disability is the stereotype that a “disabled attorney” is not fit nor able to practice the law.  When taking a more expansive view of language in the legal profession, trends of stereotyping and microaggressions continue to exist, for example:

  • “You must have standing to bring your claim;”
  • “Come and be heard before the court;”
  • “That trial was crazy;”
  • “Our goal is to get the client back on their feet;” and, infamously,
  • “Justice is blind.”

Beyond overt actions and language regarding ability, we may also be fostering behavior and practices in the workplace as a result of unconscious bias. Unconscious bias is more likely to occur in high-stress environments, like a fast-paced law firm, and tends to manifest in seemingly small, microaggressive, ways. Consider if you or a colleague have ever experienced the following:

  • Being less patient (and more likely to “snap”) at a co-worker with a disability;
  • Gravitating towards new hire candidates and co-workers who think, act, and look like you;
  • Thinking that a colleague with a disability may not be the best fit for a project, based off of your assumptions, without discussing the project with them personally;
  • Suppressing the opinions of an eager associate with a disability or not taking certain thoughts and opinions seriously;
  • Talking about a person’s assistance gear, devices, and/or service animal;
  • Interrupting, or talking over, a co-worker with a disability; and
  • Having a general trend or pattern of assigning work/tasks to a non-disabled colleague.

While these instances may seem small and harmless, they do not occur in a vacuum.  Over time, each occurrence builds upon the prior, which impacts an attorney’s connection building, learning opportunity, and overall professional growth.

For all of the foregoing reasons and more, we cannot be surprised when those within the legal profession who have a disability choose not to disclose their disability status or actively minimize (or mask) a disability in an attempt to assimilate into an “able-encouraged” profession.  Historical exclusion, legal barriers, discrimination, stereotyping, unconscious bias, microaggressions, inaccessible environments—this is not an exhaustive list, but it is one to get us started when considering the factors that culminate to create the marginalization trends for disability in the profession.  There are many different options that we have to begin making changes, such as: (1) creating affinity and support groups for attorneys with disabilities; (2) providing scholarship opportunities for the purchase of accessible equipment and technology; (3) evaluating firm practices and policies to address ableism and accessibility issues (including ensuring accessible website content); (4) establishing grants that support costs associated with accommodations in mid- to small firms to promote hiring and retention of persons with disabilities; and (5) being mindful of behavior and language that can be harmful to the disability community.

I have no doubt that as a profession we will come together to address the inequity that exists today for our colleagues and future practitioners with disabilities, and I look forward to the day when we break the single-digit threshold for demographic reporting on disability in the profession.

This article has been published for informational purposes only and is not legal advice. The perspectives and opinions contained within this article are those personally held by the Author and should not in any way be considered as a reflection of or shared by the Author’s employer.

Elizabeth “Brooks” Savage is an Assistant General Counsel with the State of North Carolina, where she practices disaster law with an additional focus on public health.  She co-chairs the NCBA YLD Diversity & Inclusion Committee, is a member of the disability and LGBTQ+ communities, and is a service animal team with her service animal, Bailey.