Trial Briefs

Embracing Our Differences With Diversity and Inclusion Efforts  

September 28, 2020   |   David Henson

More than 50 years ago, our organization was founded by a group of visionaries who saw the collective benefit of uniting criminal defense and civil plaintiffs’ lawyers in a rather unique marriage called the North Carolina Academy of Trial Lawyers. At the time, this union was unusual and indeed, even today, we are one of only a handful of state trial lawyer’s associations with both civil and criminal practitioners. In the five-plus decades of marriage, our organization has expanded to now more than 18 different sections and divisions. One big family of kin under the same legal roof. Indeed, we are a diverse group, which makes for interesting reunions when we come together for Convention, Mountain Magic, our many multi-discipline CLEs and our social events.

As we have watched our nation falter with unprecedented political divisiveness, the COVID-19 pandemic, gaping disparities of racial justice, a swelling Me Too movement and countless other recent events, I am reminded that our differences are what bind us together. We are stronger together. Diversity comes in many forms and fashions, however, and our differing practice areas are just the first cull. Many of us further identify through our differences of geography, gender identity, race, sexual orientation, religious beliefs, political affiliation, age and more.  These differences make us interesting and make us powerful as a collective.

In recognition of the importance of these differences, your NCAJ leadership team has been working hard to continue our work embracing diversity in our organization. The Diversity and Inclusion Task Force was originally created in 2017 under the leadership of NCAJ President Bill Powers. In its inception, the task force focused within our organization, developing a Diversity and Inclusion plan and statement, setting goals for a more diverse membership, injecting greater diversity into our CLE programming with a wider array of speakers and chairs, working to create greater participation of under-represented populations on our Board of Governors and our Executive Committee. Over time, this scope has broadened so that we are also looking beyond our organization to the world beyond our NCAJ family — to our profession, our state and our clients.

Over the last several months, your NCAJ team of staff and volunteer members have developed a monthly curriculum of webinars designed to educate members on how racism, sexism and other biases impact the legal profession and how we as practitioners can better represent our clients who face systemic bias in the court system, from juries and judges and the community. The plan is for this programming to extend 12 months, so that each of us begins to think about diversity and inclusion not as a reactionary response each time national headlines capture our attention and emotions, but instead as a regular, organic part of each of our regular lives. I remain convinced that this type of continuing exposure and education will make each of us not only better lawyers, but better human beings long term.

In my “real job” away from serving as your NCAJ President, I represent property owners who are having their land taken from them by condemning authorities through eminent domain. My clients are a wholly diverse group. On just one recent roadway project in a rural county, my clients included a family which traces their Black free-hold land ownership back more than 135 years to a time when it was a rare for a freed slave to acquire large amounts of land. Not too far from them, another client owned thousands of acres and is a millionaire many times over. Then, a nearby client was a multi-racial female preacher with a small community church. And, just over from her, a same-sex married couple who are losing their business property. And just around the corner my undocumented Hispanic client who stands to lose a home that he has spent years building and improving. Diversity awareness is important for my relationship with each of these clients, first on a human level, but second as their attorney. To be the most effective litigator I can be, I must think proactively about how their personal identity will impact the case and how to plan for it. Negotiations. Pre-trial motions. Jury Selection. Directs and crosses. Closing arguments. Each of these are impacted by the unique identity of my clients. An effective litigator will plan for this in advance.

As Diversity and Inclusion has grown from internal to NCAJ to external across the state, NCAJ has brought the issue to the forefront with the North Carolina State Bar. After significant pressure from bar members and affinity organizations, the State Bar Ethics Committee has reopened consideration of the addition of language designed to protect members from discrimination to the Bar rules. In particular, the committee is discussing the addition of anti-discrimination language to the Preamble to the Rules of Professional Conduct and considering the adoption of anti-discrimination language in Rule 8.4 “Misconduct” and the comment to Rule 1.1 “Competency” regarding the awareness of implicit bias and cultural differences.

In 2009, the State Bar Ethics Committee very nearly approved an amendment to RPC 0.1 Preamble “A Lawyer’s Professional Responsibilities” to include aspirational language to protect from discriminatory actions by members of the bar. NCAJ’s Board of Governors supported that language at the time and worked to seek its passage. However, it was voted down in the final moments. Given recent events of racial injustices and bias, those proposals have resurfaced again.

By letter to the chair of that committee on July 21, 2020, I have re-affirmed our organization’s continued support of that amendment.  The committee subsequently voted to approve that amended language for publication, which means that the Bar will be publishing the proposal for comment in the Volume 25, Number 3 edition of the State Bar Journal and online. We encourage NCAJ members to weigh in with the State Bar with any thoughts or positions that you may have on this pending amendment.

Further, NCAJ has requested that the State Bar Ethics Committee appoint a subcommittee to study the issue of whether to adopt ABA Model Rule 8.4(g) or some version thereof. Realizing that any such rule change may be controversial to some members, NCAJ has formed an internal committee to study this issue, gather feedback from members, determine what position NCAJ should take on the matter and to then follow through with that position with the State Bar in future meetings and discussions. That committee will be chaired by Sonya Pfeiffer and Stewart Poisson. If you have interest in serving on that committee, or providing feedback or comments please email us at

Lastly, I have affirmed with the Board of Continuing Legal Education our support for their evaluation of diversity and inclusion training as part of the annual continuing legal education requirement.  Our committee also seeks input and comments from members on this topic.

On Oct. 2, NCAJ will host its Second Annual Diversity and Inclusion Conference, packed with incredible speakers and panelists. Presentations will include training on implicit bias, race and the law, and promoting and ensuring diversity in the workplace. The event will conclude with a presentation by Supreme Court Chief Justice Cheri Beasley in which she addresses access to justice in our court system. This event serves as yet another reminder of the power of diversity — in our personal lives, in our organization and in our profession.

In this ever-changing world, your NCAJ staff and leadership continue to work hard to support our members and improve the fairness of the legal system for our clients. Our many differences are one of our greatest strengths. We are stronger when we embrace our differences and our diversity. Our members are benefitted. Our political voice is louder. Our collective impact is greater. And our organization is more resilient.