Morgan Lewis’ Grace Speights (Photograph by Deidre Schoo)
For black partners, The Am Law 100 is a lonely place. More than a quarter-century after the first national efforts to boost the presence of black lawyers at large firms, African-American partners remain so rare that at most firms, they can be counted on one hand, even though the average Am Law 100 firm has more than doubled in size in the past two decades.
In 2013, only 1.9 percent of partners—one in 54 at the 223 firms that submitted data for our Diversity Scorecard—were black, a percentage that hasn’t changed in five years. For black women partners, the numbers are even worse: They average just one in every 170 partners in our surveyed firms, half the number of black male partners, according to data collected by the National Association for Law Placement.
For black associates, the situation is not much better. The recession was a disaster for lawyers of all minorities at large firms; they were almost twice as likely to be laid off as their white peers. Between 2008 and 2009, the number of minority lawyers at the nation’s largest firms dropped by 9 percent, mostly associates. But while the numbers of Asian-American and Hispanic lawyers have since rebounded past prerecession levels, black lawyer head count has continued to slide. The percentage of black lawyers at the largest firms is now at a level not seen since 2000: 3 percent of all lawyers, down from 3.1 percent in 2012.
The law continues to fall further behind other professions in the inclusion of black professionals, according to a recent study by Microsoft Corporation. And within the legal profession, large law firms’ record on diversity is the worst, well behind that of government or corporate legal departments.
What has gone so wrong? Interviews with two dozen black lawyers, in-house counsel, diversity experts and academics, plus our exclusive law firm surveys, suggest a variety of causes. Most agreed that pressures within law firms that began during the recession have made partnership both a more difficult and less attractive proposition for black lawyers. Meanwhile, the pipeline has narrowed. As firms keep associate classes smaller, fewer black lawyers are moving into firms; the black law graduates who are tapped by elite firms continue to be a small group of high-ranking students from first- or second-tier law schools. Finally, a mid-2000s push by corporations to compel their outside counsel to diversify has receded, displaced by concerns over law firm pricing.
At a time when minorities in the United States will soon be the majority, the business case for increasing the number of black lawyers and partners is clear. “The regulatory sector is one of the growth areas of major firms,” says Paul, Weiss, Rifkind, Wharton & Garrison litigation partner Theodore Wells Jr. “You have African-Americans who sit at the very apex of our government and our regulatory agencies. To the extent that your firm is out of step, it’s going to be a competitive disadvantage.”
Corporate clients are also increasingly integrated. “Corporate law firms have a very strong need to generate new business and to expand relationships with existing clients in order to grow,” says Reginald Turner Jr., chair of the ABA’s Commission on Racial and Ethnic Diversity in the Profession. “Firms can’t afford to turn their backs on corporate legal departments that are taking affirmative steps to ensure that they employ diverse outside counsel.”
What still is lacking, many black lawyers and diversity directors say, is a broad commitment by individual white partners to ensuring the success of minority lawyers, and particularly black lawyers. Recent research has painted an alarming picture of the continuing presence of unconscious racial bias at firms. The research confirms what a lot of black lawyers have known all along: It’s not enough to recruit more black associates if you don’t deal with pervasive bias. “Diversity is a numbers game,” says Joseph West, president and CEO of the Minority Corporate Counsel Association. “It centers on a law firm or corporate law department saying that we have recruited X number of [black] lawyers. Inclusion has to do with what you do with them once they are in.”
For now, though, large firms are failing even at the numbers game. After a decade and a half of incremental increases, the number of black partners is at a standstill. Between 1995 and 2008, their ranks doubled, from just over 1 percent to 2 percent of all partners at surveyed firms; the next year, the percentage fell to 1.9 percent, where it has stayed ever since.
The numbers are even worse for equity partnership, the true brass ring of compensation and power. Last year, 31 firms—more than a third of the 77 Am Law 100 firms that reported equity status breakdowns to us—either had no black equity partners or just one. Another 18 had two. Only one firm, Jones Day, had more than 10—it had 12, or 1.8 percent of the firm’s 648 U.S. equity partners.
Among the Am Law 100 firms with no black equity partners are some of the group’s biggest, such as Baker & Mc­Kenzie, and most profitable, such as Wachtell, Lipton, Rosen & Katz and Davis Polk & Wardwell. Davis Polk managing partner Thomas Reid says that his firm recruits aggressively for top black law graduates, only to see them leave the firm a few years later for government or in-house positions. In such a small partnership, he says, senior black lawyers are hard to replace; the departure of the sole black partner in 2012, Kimberley Harris, “knocked us back a key role model,” he says.
The American Bar Association was officially desegregated in 1943, but it wasn’t until the mid-eighties that boosting minority representation in law firms became a top ABA priority. Law firms responded. In the late 1980s, most major firms had one black partner. “We used to joke it was the rule of one,” says Wells, who graduated from Harvard Law School in 1976. Now, he says, “most major firms have a black partner, maybe two. And that’s where things have stopped. You’ve got a glass ceiling. I get very depressed and frustrated about this. You would have thought, certainly at a time when you have an African-American president, and an African-American attorney general, there would be a better business case. But the numbers have not moved.”
To bump up their black partner numbers, recruiters say, firms increasingly poach black talent from rivals. “Firm A, to get a person of color, robs Firm B,” says Lawrence Green, a Chicago-based legal recruiter who places mostly attorneys of color. “The overall numbers don’t change. They don’t increase.” Some firms are also trying to hike black partner numbers by promoting black associates to the nonequity tier. “Once you get trapped in the nonequity ghetto, it’s hard to crack,” says one, who asked not to be identified.
Firms encouraged a “major, major influx of people of color in the late 1990s,” says Green. “Many of them moved into partnership, even though they didn’t have much business of their own. Then the economy tanked. And as law firms started cutting people, those attorneys were the first to go.”
Problems stemming from the contest for partnership have “not only continued, but have accelerated” since the recession, Harvard Law School professor David Wilkins says. “To the extent that law firms have changed, they’ve changed in ways that are making it more difficult for African-American lawyers to succeed. Law firms have become much more competitive. Partnership rates continue to decline. And once you become a partner, the stability of being a partner has decreased.”
The root of the big-firm diversity crisis goes back to the first years of an associate’s career. The peculiar traditions of law firms leave decisions about hiring, assigning work to and evaluating associates to individual partners, sometimes resulting in unconscious bias.
Harvard’s Wilkins was the first to highlight this bias in his seminal 1996 study on race in law firms. The pyramid model of firms (hordes of recruits, but few advancing to partnership) led to what Wilkins called a tournament for opportunities and promotion, one in which white male associates were more likely to be selected for training and get the best work assignments. The reason was unconscious bias: Selections were mostly made by white male partners who felt an affinity with associates who were most like themselves. These decisions tended to be self-perpetuating; partners continued to invest in the already better-trained associates, leaving the less-trained with fewer opportunities. “Good lawyers are made, not born,” Wilkins wrote.
Eighteen years later, Wilkins’ findings still ring true for many black lawyers. “You are deemed worthy of receiving the keys when you are liked, and you are usually liked by people who can relate to you or perceive you as similar to themselves,” a black female ninth-year associate at a midsize firm says, asking not to be identified because she is up for partnership. Black lawyers, she adds, “would more often than not say that they were not able to bring their whole selves to work and therefore grew tired of the ruse and moved on, or they brought their whole selves to work and found themselves ostracized and alienated.”
Wilkins’ study came at a time when law firms were engaged in an all-out effort to hire and promote black lawyers, and when there was plenty of work to go around. When the lean times hit, “you felt the wagons circling,” says a black female M&A attorney who made partner in 1999 but lost her job during the recession. “It was who was on the inside and who was on the outside, and a lot of the minorities were on the outside.”
Increasingly, there is empirical evidence documenting the racial disparities. African-American lawyers losing law firm jobs, for example, appear to suffer the lowest rates of reemployment at law firms of any group, according to a working paper issued in December by organizational sociologists at three business schools. The study examined the reemployment of more than 1,426 lawyers, including 50 black lawyers, after their firms failed in 2008 and 2009. The failed firms included Dreier LLP; Heller Ehrman; Morgan & Finnegan; Thacher Proffitt & Wood; Thelen; and WolfBlock. The researchers found that black lawyers were significantly less likely to regain employment within nine months than whites or other underrepresented minorities. White partners were most likely to regain employment at firms, black associates, the least; and the white lawyers were more likely to get jobs in the largest and most prestigious firms than black lawyers were.
Christopher Rider, an organizational sociologist and professor at Emory University’s Goizueta Business School, discovered the racial disparity when he was examining demographic data as part of a broader study charting how various tiers of firms hire from each other. “We suspect the lower reemployment data has something to do with how closely black lawyers are working with their colleagues,” Rider says. “They may not be working as closely with coworkers as white lawyers are.”
Black lawyers come into firms thinking that “the best thing is to keep their nose down and grind out good work product, which is important,” says the MCCA’s West. “But they never develop relationships beyond their cubicle, which is a critical mistake. White males immediately go about developing relationships inside and outside of the firm.”
“You get a new diverse associate, and for the first few months, people are checking in, making sure their plate is full,” says Frederick Barrow, a labor and employment litigation partner who recently left Littler Mendelson for a minority-owned firm. “But over time, you have to grow roots across the firm so you can be seen as a resource beyond those partners you were originally assigned to.”
A former Am Law 200 associate, now an attorney at a state agency, remembers feeling increasingly isolated as a fourth-year municipal finance associate. The attorney, who asked not to be identified because he had not been given permission by his agency to speak to the press, was never invited to a face-to-face meeting with clients, as many white colleagues were. “It would have been nice to be given responsibility for something,” he says. “It would have been helpful if someone senior had pulled me aside and said, ‘I’m going to introduce you to this person.’ Like many black law grads, I thought that being the smartest person in the room was enough to succeed. But really, I came too late to understand that what mattered was salesmanship.”
Nonetheless, there is risk in investing too much time in cultivating relationships with a few powerful white partners: They may be less likely to pass on their clients to nonwhite junior colleagues. A study published in January found that black lawyers had less success than their white colleagues increasing their books of business if they relied on inheriting client business. Two social scientists, Forrest Briscoe, at Pennsylvania State University, and Andrew von Nordenflycht, at Vancouver’s Simon Fraser University, examined two decades’ worth of individual billing records at three major law firms, which Briscoe declined to identify. Black lawyers appeared to be better off, Briscoe found, if they pursued client business outside the firm. “If you’re investing in a relationship with a senior partner, he may be working with multiple people at a junior level so it’s still a competition,” says Briscoe. “It appears that female and minority partners are losing that competition.”
That was true for one black female partner, who didn’t want her name published because she’s now in the job market. The partner she had worked most closely with for years led her to believe that she would inherit his main client, she says. But in the end, he passed the relationship to a white male partner who was junior to her. She left for another firm but was unable to bring in enough new business. Recently she was laid off.
If black associates don’t always embrace broad relationship building within firms, it may be because those partners often don’t embrace them. Associates have described “how a managing partner will walk right by them and invite others to a ball game or to lunch and not include them,” says West. “If they are not included, it is already going to be alienating and affect their work product and everything else.”
More critically, he and others note, black associates are missing out on the informal, five-minute hallway mentoring that is more important than the formal mentoring programs most firms established a decade or so ago. “A lot of white male partners will walk on eggshells when it comes to giving feedback that minority lawyers need,” says West. “There is not a single person in any profession who hasn’t screwed something up, and you learn more from your mistakes than your success. That is the kind of intercession that a lot of minority lawyers don’t get.”
Meanwhile, the chances for meaningful interactions with clients and partners are fewer now than before the recession. “There’s a growing emphasis on technology, and the days of meetings with a partner and three associates in the room are gone,” says Littler Mendelson employment partner Jaffe Dickerson, who founded his firm’s diversity council.
For black female associates, advancing to partnership inside a firm (as opposed to moving in laterally) is so difficult that “almost 100 percent of black women leave by the eighth year of practice,” says Genhi Givings Bailey, DLA Piper’s director of diversity and inclusion. In fact, a 2009 study by Catalyst, a nonprofit group promoting opportunities for women in business, showed that three-quarters of black female associates left their firms by the fifth year, and five in six before their seventh year. Among other things, the story concluded that black women had the hardest time fitting in at firms, and were most likely to feel that their supervisors had low expectations of them.
One associate, asking not to be identified because she didn’t have permission to speak from her government employer, describes why she left her Am Law 200 firm. When she was a fifth-year associate, she says, a major arbitration her team had been immersed in ended. Suddenly there wasn’t enough work for the three equally senior associates in the group. While she frantically emailed partners to ask for work, and eventually missed her billable hours targets, the two other fifth-years, both white men, were swamped with new assignments. “Both of them were married with children, so I was the obvious one to go,” this lawyer says, because as a single mother with neither a round-the-clock nanny nor a stay-at-home spouse, she couldn’t put in the required face time. Within a few months, she left for a job in government.
To make it as a black woman at a firm takes “a certain toughness,” says Grace Speights, a labor and litigation partner who heads Morgan, Lewis & Bockius’ Washington, D.C., office. Like several powerful black partners we spoke with, Speights credits her mother—a single parent and full-time factory worker—with laying the groundwork for her eventual success. “I had no choice but to be successful,” she says. Like others who have advanced organically within firms, partners served not just as Speights’ mentors, but as sponsors. “All along the way,” she says, “I had people in power—all but one white and male—who said, ‘You are going to succeed. I think that’s key. If you’re going to be successful as an African-American lawyer, somebody has to be invested in you.” (Morgan Lewis had a full-time equivalent of 7.42 black partners last year, 1.7 percent of a U.S. total of 433.)
Speights and several others suspect that black associates now climbing the partnership ladder, whether male or female, may not be benefiting from the same sort of sustained sponsorship she received. “The whole practice of law post-2008 has changed a lot,” she says. “There’s more pressure around billing. I really do think there’s less of an interest in taking the time to bring others along. Many partners are focused on their own success. It’s not that they discriminate consciously—it’s just not at the top of their list.”
Instances of overt bigotry are rare, but they do occur, says Peter Haviland, a black litigation partner who recently left Kaye Scholer for Ballard Spahr. “I’d like to see the day when a firm publicly repudiates a partner for racist comments or behavior,” he says. “There’s a lot of racially charged things that go on in law firms that are not responded to. Firm leaders have not taken action because they’re afraid those rainmakers will leave. And the inability to act on or confront such behavior, which makes firms relatively inhospitable to African-American lawyers, is a problem.”
In late April, law firms were roiled by a study that shows in the starkest terms yet how implicit bias remains pervasive. The study, by Nextions, a law firm diversity consultant and leadership coaching firm, found that supervising lawyers were more likely to perceive African-American lawyers as having subpar writing skills.
In its study, Nextions inserted 22 errors, including minor spelling or grammar errors, factual errors and analysis errors, into a research memo written by a hypothetical third-year litigation associate. The memo was then sent to 60 partners who had agreed to participate in a writing analysis study. Half got a memo identifying the author as African-American; the other half, a memo noting that the associate was white. The hypothetical black associate got a significantly lower score on average than the hypothetical white one. Partners, regardless of their race or gender, had more positive things to say about the work of the white associate, and found fewer mistakes on average in the paper.
Many black partners active in their firms’ diversity efforts say that this study, like no other before, has commanded the attention of top management. Many also say that new efforts will focus on areas where such implicit bias continues to affect the advancement of black associates, in interviews, work assignments and performance reviews. “We have to talk about this out loud,” says Craig Griffith, a Sidley Austin structured finance partner who cochairs the firm’s asso­ciate compensation and diversity committees. “If you ask most lawyers, ‘Does implicit bias exist at law firms?’ most would say, ‘Yes, it does,’ says Griffith, who is black. “But if you ask the partner, ‘Does it exist in you?’ he will say, ‘No, it does not.’ That’s a conversation we need to have on a whole range of issues now.”
In the meantime, firms such as Schiff Hardin, Littler Mendelson and Reed Smith have begun taking steps to address both unconscious bias and structural impediments to black lawyer advancement. These steps echo in practical ways those recommended by the American Bar Association’s Presidential Initiative Commission on Diversity in 2010 in its report summarizing its findings after a year of hearings on the issues. These are some of the actions firms have taken:
• Revise hiring and evaluation systems. At the height of the recession, Sidley’s management placed layoff decisions in the hands of practice group heads. The result was that the percentage of African-American associates fell by 47 percent. Afterward, the firm appointed a task force to review the layoffs. “What was revealed was that in decisions partners were making about which associates to keep, we found that our diverse associates were not making connections with partners in the same way and to the same extent as our majority associates were,” Griffith says. “Therefore they were viewed as more expendable.”
Sidley is now trying to formalize those connections, pairing minority associates with partners within their practice group, and the task force is tracking those associates to make sure they are receiving skills training, career coaching and client access. The firm is also examining its annual performance review forms, trying to strip away questions that might lead a partner to review an associate in a way that introduces implicit bias.
Schiff Hardin, another firm that is examining implicit bias, changed its associate interview process two years ago in ways that it says are bringing in a more diverse and talented pool of lawyers. “Typically, when law firms interview people, a single interviewer evaluates each candidate on the basis of fit. “It’s ‘I like this person, he went to my college; he’s in,’” says Patricia Brown Holmes, a former state court judge who has been leading efforts to support minority associates since she joined the firm in 2005.
Two years ago, Schiff assigned a panel of trained interviewers, with each panel including a minority attorney and a female attorney, to meet each candidate and to ask a set of standardized questions, reducing the likelihood that the race of the interviewer would be a factor. A writing exercise is also graded “blind” to prevent implicit bias from creeping into the evaluation. That attention to detail continues throughout the associate’s career. Practice group heads are held accountable for making certain that diverse lawyers in particular are being treated fairly.
• Get management buy-in. In the early 2000s, many firms formed diversity committees to look at the problems facing minority associates. But now some firms are doing away with those committees on the grounds that they had little impact. “Partners who should be on the line think, ‘That’s the diversity committee’s issue, so I can go on about my business,’” says Vinson & Elkins appellate practice group head Thomas Leatherbury.
V&E has replaced its former diversity committee with a three-person team that includes the chairman of the firm, the head of women’s initiatives and Leatherbury, who is chair of a new talent management committee. The seniority of the core team ensures that diversity efforts have top-level buy-in, Leatherbury says; it regularly meets with a kitchen cabinet of minority attorneys to assess problems and progress.
Diversity efforts are now a responsibility of each practice group, which includes a diversity leader and a “talent leader” who participate in decisions about allocating matters and who track the client engagement of minority associates. “The more you take it down to the practice level, that’s where you make the most change,” Leatherbury, who is white, says. “We’re more nimble at addressing issues now.”
• Support business development. Realizing that partners’ client golf outings excluded many minority and female lawyers (and clients), Schiff Hardin’s Brown Holmes suggested creating a new event aimed at minority lawyers and clients, at which a golf pro would teach the basics. The event has been popular and has now morphed into a women-only outing.
Brown Holmes says that Schiff has backed her client development efforts. When she joined as an equity partner in 2005, she had trial and judicial experience but no book of business. Last year, she was the top-billing female partner at the firm and now sits on the executive committee, making her one of the few black female members of law firm management nationally.
Meanwhile, Reed Smith is focusing on providing networking opportunities to its African-American associates, sponsoring participation in minority-oriented events by groups like the National Bar Association and the Minority Corporate Counsel Association. The firm doesn’t just send its attorneys of color to these networking events; “internally we train all lawyers in business development, not just diverse attorneys,” says Tyree Jones, a black financial litigation partner.
Efforts like these need to be stepped up, say Griffith and others. But to really move the dial, Am Law 100 firms will need to promote to equity partnership far more African-American attorneys than they have done so far, he says—and that will take buy-in from white partners. “You have to have the active participation of your rainmakers, your business developers, across the platform,” he says, “who recognize that building relationships with diverse lawyers is a part of the job description.”
To win their support, Wells says, firm leaders—and black partners—need to make a stronger, more convincing case that hiring and promoting more black lawyers is a business necessity, not just a moral imperative. As clients diversify, he says, firms with more diverse partnerships will be better positioned to win business. What’s less often articulated, he says, is how diversity enhances the quality of client work. “I take it almost as a given that if you are in a room and you are trying to brainstorm a strategy for a client, you are likely to get to a better solution if you have people in that room with a different perspective,” he says. “If you’re all of the same background, you are more likely to miss something.” In other words, they will need to demonstrate that a commitment to diversity is not only the right course, but the smart one.
American Lawyer reporter MP McQueen contributed to this piece.