Our nation is rapidly becoming more racially and ethnically diverse. According to the 2010 decennial census, 36.3 percent of the U.S. population was comprised of people classified as minorities — i.e., those of any race other than non-Hispanic, single-race whites. By 2042, the Census Bureau estimates that minorities will constitute the majority.
Governments, businesses and nonprofit organizations are taking notice of America’s changing face. To one degree or another, they are adapting their policies and practices to address the shifting statistics.
The potential for financial reward is a major factor driving the case for diversity, particularly among for-profit entities. Beyond profit, however, there are moral and political imperatives that must be considered. This article focuses on the case for racial and ethnic diversity in the legal profession.
The rationale for diversity has been documented in numerous legal writings in recent years. In 2010, the American Bar Association Presidential Initiative Commission on Diversity issued a comprehensive study on the state of diversity in the legal profession. Not surprisingly, the learned scholars from the commission reported that racial and ethnic minorities — along with women, people with disabilities and those in the LGBT community — are significantly underrepresented within our ranks. To address this reality, the commission offered four rationales for advancing diversity: business, democratic/moral/political, leadership and demographic.
The business case for diversity advances two overarching propositions. First, diverse law firms have a competitive edge for securing, maintaining and growing accounts from corporate clients that value diversity as a core component of their business models. Secondly, these firms attract top-notch minority legal talent, which favorably positions the firms to capitalize on the ever-increasing legal needs (and purchasing power) of minority communities.
Diversity as a vehicle for corporate client opportunities has merit in that more organizations are expressing a pledge to diversity through their mission statements and procurement practices. Some of those clients are also holding their outside counsel accountable for meeting diversity goals. However, quantifying the benefits of diversity inclusion programs presents unique challenges as noted in the report, "The Business Case for Diversity 2011: Reality or Wishful Thinking?" issued by the Institute for Inclusion in the Legal Profession (IILP). While the findings of the report will not be recounted here, it is worth mentioning the IILP’s conclusion that diversity is one factor impacting the business relationship between law firms and their corporate clients.
The second major proposition for diversity as a business case — access to the growing minority market — is one that has already proven of benefit to law firms that embody a culture of inclusion. Such a culture requires the hiring of a representative number of qualified minority lawyers, paralegals and support staff – depending on the target market, individuals who are bilingual, bicultural and known for their community service. Firms that commit to inclusion also provide their employees the tools to reach their full potential.
A diverse legal workforce helps build bridges of trust with traditionally underrepresented groups. Likewise, it sends a powerful message that legal institutions value all of its members. And while it is not necessary to be a minority lawyer to appreciate the plight of clients of color, the natural affinity between people with similar backgrounds leads to a kinship that promotes productive client-attorney relations. Combine this affinity with effective legal representation and firms have a recipe for attracting clients and, therefore, business success.
Moreover, law firms that embrace diversity early on position themselves as proactive, forward thinkers. Instead of reacting to well-publicized demographic changes, they project the foresight of trend-setters ahead of the curve. And investing in diversity is not a ploy to project a positive image. It does provide substantive benefits. As noted by Christopher A. Lewis in his September 8, 2011, article in The Legal Intelligencer, "A Deeper Look at the Business Case for Diversity," "diversity may also play a key role in helping law firms adapt to a rapidly evolving and highly competitive environment." Like Lewis, we believe that diversity enriches a firm’s practice by adding dynamic ways of thinking through and solving legal issues.
What about the moral case for diversity? Some argue this is a more fundamental imperative for a profession that prides itself as a defender of the rule of law and justice for all. It seems hypocritical to champion the unalienable rights listed in the Declaration of Independence when, 237 years later, the workforce of most firms and corporate legal departments does not reflect the diversity of those we serve. Fortunately, it is not too late to correct the trend.
Whether we view the moral case for diversity in the legal profession as social justice, the right thing to do or another manifestation of good business sense, it behooves us to ensure everyone touched by our system of law has faith in the fairness of the system. If a group feels underrepresented in court and other proceedings, it may reach the conclusion there is not a level playing field. The feeling is amplified when juries are predominantly non-minority.
If, on the other hand, our bench and bar more closely resemble those who require our intervention, there is a greater likelihood that members of an unrepresented group may perceive the system as just. A just system engenders confidence. And confidence, by definition, makes people feel certain about the truth of something — in this case, the truth that our laws will be applied equitably.
Finally, let us explore the political rationale for diversifying our legal workforce. As lawyers, we constantly seek to persuade others into adopting our points of view. Frequent audiences of our advocacy efforts are elected, appointed and career officials in government. Those officials are beginning to mirror the racial and ethnic diversity of the general population.
As with the proposition that the cultural affinity between minority lawyers and clients gives the former increased access and credibility with the latter, it could be argued that a similar affinity between diverse attorneys and government officials could lead to effective lobbying. This theory fundamentally assumes that said attorneys possess the knowledge, skills and abilities needed to lobby public policies. In other words, all things being equal, minority lawyers who perform political advocacy may have an advantage over their non-minority counterparts.
In addition to effectively persuading friends in high places, law firms and corporate legal departments that commit to diversity inclusion will likely be in a better position to avoid or defend racial and ethnic discrimination claims filed against them. Often, those claims are investigated by local, state and federal human relations/equal opportunity commissions.
To conclude, we wholeheartedly submit that diversity is in our best interest as an industry. Not only does it make moral sense, it is an economic and political driver even when it cannot be easily quantified. The benefits of promoting equal access and opportunity among our ranks outweigh other relevant considerations like time and money. Diversity is an investment, not an expenditure.
Bill McBride, former managing partner at Holland & Knight in Tampa, Fla., said, "The future will belong to those law firms that make diversity a core value. For those that do so, the clients, the top law school students and the best staff will be theirs for the taking." We agree with McBride. In support of his statement, we respectfully add this: The future is now. •
Pedro A. Cortés is a partner with Haggerty, Goldberg, Schleifer & Kupersmith and director of the firm’s Community Services Outreach and Support office. The mission of CSOS is to help families that have recently suffered a tragedy by putting them in contact with social service organizations, government agencies and other entities that can provide support, including, when requested, recommendations for legal services. Prior to joining HGSK, he served as Pennsylvania secretary of State from 2003 to 2010.
Teresa Rodriguez practices in the area of personal injury actions at the firm. She has represented hundreds of immigrant, migrant and seasonal farmworkers in labor and employment cases including wage-and-hour, unpaid minimum wage, unpaid overtime, concerted protected activity, health and safety and discrimination. Contact her at email@example.com