SAN FRANCISCO — Silicon Valley’s diversity problem doesn’t stop with the tech engineers: A Recorder analysis of the outside lawyers appearing on behalf of four major tech companies found even less ethnic and racial diversity than within the companies themselves.
Of the 126 lawyers listed as counsel of record for Google Inc. in open Northern District federal court matters, 96 percent are white or Asian-American. And 71 percent are men.
Of the 137 lawyers appearing for Apple Inc., 97 percent are white or Asian-American. And 68 percent are men.
The poor showing comes despite well-publicized initiatives, at the companies and at large law firms, to promote diversity. And it suggests an even bleaker picture at emerging tech companies, where lawyers say diversity tends to be less of an articulated priority.
Tech companies blame the lack of diversity within their engineering ranks on the fact that the pool of engineers is overwhelmingly male and white or Asian-American. But law—even Big Law—is more ethnically diverse and gender-balanced than the teams fielded by these four companies. African-Americans make up about 3 percent of the lawyers working in Big Law nationally, according to The American Lawyer’s diversity survey. But there are only six African-Americans among the more than 300 outside lawyers listed as attorneys of record by the four tech giants. (The Recorder chose the four companies because they recently released their overall diversity numbers, under some prodding, and have enough active litigation matters to produce a large population sample.)
The numbers are disappointing to diversity advocates.
“Unfortunately, these numbers don’t look terribly surprising to me,” said Netflix associate general counsel Hilary Ware. She quibbled with the methodology, saying firms sometimes add more senior attorneys as counsel of record to signal the importance of the case and that may skew the numbers, because the more senior attorneys tend to be white and male.
“Having said that, it’s as good a metric as any, and the numbers indicate there is obvious room for improvement for all of us who are trying to promote diversity.”
Asian-American representation is on the rise, though, and the companies sampled here have better numbers in their outside counsel than seen in Big Law. Asian-Americans make up 12 to 15 percent of outside counsel at Apple, Facebook, Google and Hewlett-Packard.
Lawyers who have bid for or done work for the four tech giants say all of them include diversity questions when putting legal work out to bid. Google, for example, asks prospective counsel to list the firm’s diversity initiatives and the number of diverse lawyers, and to provide diversity data for the lawyers who would be put on Google’s matter.
“Google’s practice has led us to frequently add diversity candidates within our firm to proposed teams,” Cooley partner Michael Rhodes, whose firm has represented the company on multiple matters, said in an email.
Of the five Cooley lawyers appearing on active matters, two are women, but all are white. (A firm spokesman provided data showing that several diverse Cooley lawyers have appeared on matters that have since closed.)
Apple, Facebook and Hewlett-Packard did not respond to questions about how the companies treat diversity in hiring outside counsel; Google declined to comment.
Generally speaking, lawyers say companies in startup mode are the least attentive to diversity hiring. “Diversity generally only becomes a conscious force once companies have reached a certain size and level of maturity, and have a management and/or HR team in place who have the time and resources to actively prioritize it,” said Queen’s Bench legal recruiter Sarah Blumling. Small companies tend to be focused on other business imperatives.
“There is also a strong tendency among all people to want to hire others who are ‘just like us,’ because there is an assumption that we can evaluate them or understand them better; it takes effort to step back from that and open our minds to candidates who are ‘different,’” Blumling said in an email.
But some fast-growing tech companies are managing the trick.
At Netflix Inc., Ware said she contacts lawyers directly and asks them to make pitches. “In many cases those attorneys are women and/or attorneys of color,” Ware said. She said diverse attorneys typically build diverse teams, and that she would be surprised to have an attorney pitch her an entirely white legal team in today’s world.
Netflix has tapped African-American women as the relationship partners for company legal work handled by Perkins Coie and Baker & McKenzie. Bobbie Wilson, the relationship partner at Perkins Coie, is someone Ware said she knew from a yearslong friendship. At Baker & McKenzie, Joyce Smith is the point person for Netflix.
San Francisco-based Perkins Coie counsel David Tsai said he sees general counsel who are themselves minorities taking the initiative.
“I’m the relationship partner for Uber, because the GC there purposefully tries to help minority attorneys in growing their book of business and in helping the attorneys become equity partners,” Tsai said, referring to Salle Yoo. (Uber Technologies Inc. didn’t respond to questions.) Tsai also pointed to the efforts of Netflix’s Ware.
John Kuo, general counsel of Palo Alto-based Varian Medical Systems Inc., said he chose Fenwick & West on a recent matter because the lead partner was a woman who, like him, put a premium on diversity. The company is not currently listed in any open matters in the Northern District.
Kuo does ask for diversity numbers in his requests for proposal, but he says he has a more subtle, and perhaps effective, means of getting minorities on his matters.
“When we have outside counsel sitting across the table from us and pitching us their business, they can see myself, an Asian-American GC, a woman assistant GC sitting right next to me, and our African-American head of litigation on my other side,” Kuo said. “Any savvy attorney would understand, ‘Hey, I want to reflect and mirror what my client has so I can be in touch with them.’”
‘A CLASSIC DANCE’
Michael-Bryant Hicks, general counsel of Tucson-based The Providence Service Corp., said companies have to move beyond just demanding diversity metrics in RFPs. He said general counsel need to be part of choosing the team and in making sure associates get assigned to substantial work. Scrutinizing a firm’s bills can be revealing.
“You might see a lower-level associate on ‘due diligence’ or ‘document review.’ But what documents are those? How important is that stuff?” Hicks said.
Hicks, who is African-American, remembers how law firms addressed diversity when he was a young associate.
“There’s a classic dance where a first- or second-year associate—Latino, Asian, African-American—will get a request for his bio and resume, and he will be told he needs to include a picture,” Hicks said. “He needs the picture because a group of partners was asked by a client how diverse their organization was, on the basis of color, and now the partners need to put his photo in the larger proposal.”
Though Hicks got several such requests, it didn’t mean he would actually work on the client’s matters, he said.
Hicks pointed directly at Silicon Valley as being the furthest behind in prioritizing diversity.
“It’s supposed to be a very liberal and progressive place, and I’m sure they all voted for Obama, but just because you’re pro-immigration reform doesn’t mean you’re hiring diverse people into your work,” Hicks said. “The power, at least in law firms, is very much homogeneously concentrated in the hands of white men. It’s not a very diverse environment at all.”
Brian Cabrera, general counsel for Nvidia Corp., said he tells outside counsel that their teams should match up to his own diverse team, and says he makes certain that the attorneys are put on important work.
“We work to incorporate them into our organization regardless of level, so that they become more expert in knowing our people, products and practices,” Cabrera said in an email. He said the outside counsel are expected to attend product training and learn the business of the company, from how accounting works to understanding the revenue models. “This in turn makes them more successful within the firm, and of course with us as their client.”
Nvidia has 11 attorneys listed on two open matters; one is Asian-American, one is Hispanic/Latino and three are women.
O’Melveny & Myers partner Scott Nonaka said he is optimistic about increasing diversity within law because it also makes business sense. He said he hopes that by convincing companies that they can have better results with more diverse teams, actual change will happen.
But an African-American partner took a more jaundiced view of the data: “Welcome to the real world.”
Contact the reporter at email@example.com.