For Black Lawyers, a Long, Hard Road

Eric Moyé, a member of the Harvard Law School class of 1979, decided to become a lawyer in the third grade. Raised in New York City during the civil rights movement, Moyé heard his parents talk about school integration, busing, and the Freedom Rides at the dinner table. He saw that lawyers and judges were in the eye of the storm. That led him to law school, where, by his third year, he knew he wanted to be a litigator. Having put down roots in Dallas while attending Southern Methodist University, he turned his eye toward that city’s biggest firms. Moyé says that none of the large downtown firms had ever hired an African-American lawyer. One recruiting partner from a large Dallas firm pointedly suggested that Moyé’s desire to be a litigator was “unfortunate.” He doubted a black lawyer would do well before Dallas’s all-white judiciary and predominantly white jury pools. A second firm suggested that Moyé spend only half his time on litigation. But Moyé wasn’t interested in corporate work. Then came his interview at Akin Gump Strauss Hauer & Feld with Jack Hauer, who was chair of the litigation section. “He said, in his old, curmudgeonly way, ‘If you want to be a trial lawyer, you come down here, and we’ll let you try as many cases as you want,’ ” Moyé recalls. So that’s what he did. It would be nice to think this change ushered in an era of racial equality in the legal profession. It didn’t. But it was another small step across the racial fault line. To chart the last 25 years of progress, and lack thereof, The American Lawyer magazine interviewed a dozen black lawyers who graduated in 1979, 1989, and 1999 from Harvard, which has one of the largest African-American student populations among elite law schools, and Howard University Law School, which graduates the most blacks. Their stories are as complicated as race in America; collectively, they add up to the proverbial two steps forward, one step back. Many said they grappled with race-related issues when choosing schools. Once out, many struggled to get mentors and prime assignments-factors that can profoundly affect partnership prospects. Those dynamics have become even more crucial as the practice of law has grown more competitive. Facing all this and more are female African-American attorneys, who confront the gender hurdle. Today, African-Americans make up 3.9 percent of the 1 million active lawyers in the United States, according to a 2001 abstract from the U.S. Census Bureau. That figure contrasts with 1983, when a Census abstract shows they represented 2.6 percent of all lawyers. African-Americans’ presence in the law today lags notably behind their numbers as accountants/auditors (9.5 percent, up from 5.5 percent in 1983), college professors (6.1 percent, up from 4.4 percent), and doctors/psychologists (7 percent, up from 5.9 percent). While black lawyers are making steady gains in the legal world, only a fraction have risen through the ranks of the large law firms. In 2003, there were 612 black equity and non-equity partners out of a total of 39,091 total partners in 236 law firms that responded to a survey of the 250 largest firms. (The survey was conducted by Minority Law Journal and The National Law Journal, which are affiliated with Legal Times.) A QUESTION OF TIMING When Debra Lee entered Harvard Law in 1976, Boston was fraught with racial tension, largely over busing. Despite that, Lee and other Harvard graduates say they were attracted to Harvard’s relatively robust population of minority students. There were 45 African-American students out of 514 in the class of ’79, and Harvard has continued to turn out even larger classes of black lawyers since then. Though several alumni described Harvard and Cambridge as an oasis from the racial tensions of Boston, others noted that the law school wasn’t problem-free. Lee, who is the president of Black Entertainment Television Inc., recalls that in the late ’70s, “some professors wouldn’t call on black students or women at all.” Howard alumni say the comfort of being in a racial majority was critical to their law school selection. Loretta Biggs, a Howard ’79 graduate, had also been accepted at Georgetown University Law Center. But growing up in Atlanta, she had attended black-majority public schools and then Spelman College. As a result, she didn’t want to combine the roles of minority pioneer and law student: “I needed to focus more on learning the law than surviving in a majority environment,” says Biggs, who is in private practice in North Carolina. Twenty years later, Tanya Lee (no relation to Debra) chose Howard for similar reasons. Although she’d been a Japanese studies major at Princeton University, she wanted a graduate-level experience that would eliminate race as an issue. “I had heard such horror stories about how grueling and difficult law school is, and I wanted to go to a place where one factor would be eliminated. I didn’t want to think about whether someone didn’t invite me to a study group or the law review because I was black,” says Lee, who is now a lawyer at the Procter & Gamble Co. in Cincinnati. Both Biggs and Lee were aware that a law degree from a traditionally black school could hinder their career options. As a result, both entered Howard aiming to graduate in the top of the class, a goal they achieved. “I knew you have to be the cream of the crop to get into the elite firms, the Department of Justice, or federal clerkships,” says Lee, who ultimately chose to go in-house at P&G after law school rather than accept an offer from the large firm where she’d interned. During the last 25 years, though, Howard students’ opportunities have improved. Howard’s dean, Kurt Schmoke, a ’76 Harvard graduate, says the large firms have traditionally made an appearance on campus during recruiting time, but they didn’t always hire many Howard students. That, he says, has changed: “They’re definitely coming looking for talented students.” In 2003, 66 AmLaw 100 firms and 27 AmLaw 200 firms recruited at Howard, and students have gone to Arnold & Porter, Shearman & Sterling, and Sullivan & Cromwell, among other elite firms. Of the 44 percent who went into private practice from Howard’s class of 2002, 54.5 percent went to firms with more than 251 lawyers. Harvard declined to provide information about its postgraduate career choices. Although several class of ’99 lawyers chose Howard because of concerns about racism at majority-white schools, their Harvard counterparts generally felt race was not a significant issue. Unlike earlier alumni, none reported that professors treated them inappropriately. Kwame Manley, an associate at Williams & Connolly in Washington, D.C., recalls, however, that some students expressed attitudes that he found disturbing: “There was a really dismissive nature by some of my white colleagues-not believing that diversity is important and not believing that the Voting Rights Act, that equal rights, was still an issue in 1997.” BACKLASH Notwithstanding such lingering differences, it is undeniable that a mix of recruiting and affirmative action sharply increased the number of black law students nationally between 1980, when 5,506 black students enrolled, and 1994, when enrollment peaked at 9,681. Then affirmative action came under attack, particularly in Texas and California. In 1996, the U.S. Court of Appeals for the 5th Circuit banned affirmative action in Texas law school admissions in Hopwood v. Texas. The same year, the regents of the University of California implemented a similar ban. The next year, black enrollment dropped nationally by 410 students. Enrollment has since climbed back slowly, reaching 9,436 in 2002, according to American Bar Association statistics. But black students have fallen further behind in relative terms, accounting for 7.1 percent of all law students in 2002-03, down from 7.5 in 1994. (A decision last year by the U.S. Supreme Court in Grutter v. Bollinger may improve matters. In that case, the justices held that the University of Michigan Law School could consider race among other factors in admissions.) John Cobb, a Howard ’79 alumnus who is the public defender in Petersburg, Va., is troubled that the backlash against affirmative action may make things more difficult for younger black lawyers than for those in his generation. “We had this attitude that there ain’t no stopping us now. That might have been our theme song. If there was an obstacle, we knocked it down and got going. We didn’t let it hurt our spirit,” says Cobb. He notes that when blacks were making it in the 1970s, there was a widespread belief that they must be extraordinary to achieve at the same level as their white counterparts. Cobb worries that African-Americans’ achievements are now unfairly viewed in terms of affirmative action: “The perception today is that [African-Americans] don’t have to be as good to get the same thing.” Yet African-American lawyers across the generations have felt that they had to “prove” themselves by being smarter or working harder than their white colleagues. “Clients are not used to their lawyers being African-American or women,” says Tanya Lee. “I think it just means that you have to work harder to earn credibility. I wouldn’t take it personally that there may be more questions about your work-to feel you out.” Most black lawyers could tell a half-dozen stories about being mistaken for a messenger, a secretary, or the “other” black associate. But newer graduates relate fewer experiences of outright racism. Moyé, who became a Texas state district judge and is now a partner at Dallas’ Vial, Hamilton, Koch & Knox, recalls from his associate days that a white judge called him “brother” every time he entered his courtroom. Debra Lee remembers a conference call she was on 20 years ago as an associate at D.C.’s Steptoe & Johnson. The client made a joke that his last name, Coon, might help his radio station’s petition to the Federal Communications Commission, because the government was examining the diversity of applicants. The white partner also on the call, Lee recollects, recovered quickly: “He said, ‘No, your name won’t help, and I don’t think the fact that Debra Lee, your attorney, is African-American will help either.’” There are far more African-American associates in large law firms than there were two decades ago. Black lawyers made up 1.9 percent of the associates in 1985, according to The National Law Journal. Last year, according to the Minority Law Journal, African-American associates made up 4.2 percent of all U.S. citizen nonpartners. However, the gains were much slower at the partner level. National Law Journal statistics reveal that black partners in the largest 250 firms accounted for just 0.7 percent of all partners in 1985. By last year, according to the latest Minority Law Journal survey, the number of black partners had climbed to 1.6 percent of all U.S. citizen partners. Harvard Law School professor David Wilkins has written extensively about African-Americans in large firms. “We think being a good lawyer is something innate inside you,” he says. “But what really matters is relationships.” He points to relationships with both senior people in the profession and with clients. If those relationships are impeded or unobtainable, he says, black lawyers begin to look for opportunities elsewhere. But mentoring relationships are complicated by two factors. Personal and professional interactions are still mediated through race; and as the practice of law has become more competitive, partners have less time to mentor. Consequently, says Wilkins, “judgments about who to train and develop are made very quickly, on the basis of very little hard information. Backgrounds, stereotypes, preconceptions-all of those kinds of things play an important role in who gets opportunities.” FIRM CHOICES After graduating from Harvard in ’89, Deirdre Stanley, now senior vice president and general counsel of the Thomson Corp., went to Cravath, Swaine & Moore. She chose the firm because it rotated work assignments, which meant she worked exclusively with two partners for 12 to 24 months. Otherwise, she says, “in any pool system, over time it’s going to break down. As human nature would have it, people are going to call people directly and work with the people they’ve trained on other projects or that they’ve met through social avenues, like a cocktail party.” (Stanley says she left Cravath after five years for an in-house job because she liked the work better.) Lawyers from the class of ’99 reported mixed experiences on the mentoring front. Rylan Rawlins, a Harvard ’99 graduate who is an associate at Bingham McCutchen in Boston, says that he has both black and white mentors: “I think I’ve got a number of mentors here, both formally and informally, be it on a personal level or a professional level.” Rawlins adds, “I feel lucky, in that a number of folks haven’t had the same opportunities in other firms.” Nicole Harris, a Howard ’99 alum and an associate at Mitchell Silberberg & Knupp in Los Angeles, recalls that at her first firm out of law school, Loeb & Loeb in Los Angeles, she was one of three African-Americans. She felt alone and didn’t think there was an outlet to express her feelings. As for mentoring, Harris says, “They may have had a mentoring program, I don’t remember-which tells you that I didn’t really have a relationship with a mentor.” Loeb & Loeb partner Lance Jurich notes that the firm has changed its mentoring program in the last four years so that there are varied and stronger mentoring relationships. One African-American associate in the L.A. office, Mark Streams, a lateral transfer who arrived two years ago, says he has been “well looked after” since his arrival. At her current firm, Mitchell Silberberg, Harris is still one of three African-American lawyers, and there’s no formal mentoring program there either. But she says there’s a more open atmosphere. She feels comfortable approaching anyone, even partners she’s never worked with before. Moyé, class of ’79, says mentoring has changed since the old days. He left Akin Gump after five years to form his own firm so he could spend more time in the courtroom. (Akin Gump’s practice included many complex cases that rarely went to trial.) When he was at Akin Gump, there was a more informal and collegial feel than at big firms now: “Lawyers really cared about folks as people. When I got divorced, there was a lawyer who made sure I wasn’t sitting around doing nothing [at night].” GENDER POLITICS The mentoring challenge becomes even more acute when the element of gender is added. The number of African-American women enrolling in law school and entering the profession is growing. In 2000, black women made up 48 percent of African-American law students. Yet Wilkins, who has interviewed dozens of black women lawyers for his forthcoming book, notes, “Black women have not only all the problems of race, but they have all the problems of gender too.” Natasha Muhammad went to D.C.’s Hogan & Hartson after graduating from Harvard in 1999. Though Muhammad, now in the Howard University general counsel’s office, says she had trouble with a partner who treated her differently from the white associate who was also working with them, she eventually found support in Hogan’s health care group. (Muhammad left because she wanted broader experience in health care work and in part because the hours were so long.) While Muhammad considers her experience at Hogan very positive, she nonetheless thinks that minority men have an easier time working with white men because of the comfort of shared gender: “When black women are working with white men, you’re two steps away.” Diane Bradley, an ’89 Howard grad who now has her own practice in the District, worked for the Equal Employment Opportunity Commission after graduation. While she was there, she says, the agency’s upper management levels were predominantly white, and African-Americans were not given the same promotion opportunities, a problem the agency’s district office addressed internally. When she left in 2000 to join a 25-lawyer civil rights and employment law firm in New York, she also encountered discrimination. While she felt that the firm didn’t diversify its staff and sometimes relied on her racial identity as “window-dressing” to attract clients, she thought that “gender was more prevailing of an issue.” A witness to sexual harassment, she blamed the gender dynamics as a whole for the biggest problems. Women were not given as much power in the firm, yet were blamed for its problems, she says. In addition, she says, “I didn’t see them grooming women attorneys in the way they did men.” While some women leave large firms because of biases, others leave before being considered for partner because of “quality of life” reasons. Several graduates, particularly from the ’89 and ’99 classes at both Howard and Harvard, said that the unpredictability of their work schedules, rather than the amount of work, was a factor in their decision to leave. Statistics show a large imbalance remains between the number of women law school grads and the number who become partners at elite firms. For the last 15 years, women of all races have made up more than 40 percent of the graduating law school classes, yet in 2003 they still only made up 17 percent of large law firm partners. While that’s an improvement over 10 years ago, when they made up 12.3 percent, many observers had expected that more women would have joined the partnership ranks by now. “If we’re going to solve the race problem,” says Wilkins, “we’re going to have to make serious headway on the gender problem.” Increasing the number of African-American partners in elite firms is only part of the battle. Black lawyers still face the difficult challenge of becoming powerful partners. Wilkins notes, “The big story here is that black lawyers have entered into the profession at exactly the moment at which the profession has undergone a radical change.” It has become critical that black partners do more than work hard, he says-they have to become rainmakers. Howard alumnus Biggs-who held a state appellate judgeship but joined Davis & Harwell in Winston-Salem after a failed 2002 re-election bid-says she paid close attention to the culture of the firms she considered joining. She was courted by fairly large firms, such as Womble Carlyle Sandridge & Rice and Kilpatrick Stockton, but wasn’t thrilled about their relative lack of diversity. “There are very few African-Americans at either of those firms,” says Biggs. “I just did not want to fight those battles. I wanted to spend my energy elsewhere.” Biggs says that the lack of African-American representation at those firms made her concerned about her chances of becoming a successful rainmaker, a point that Harvard’s Wilkins says is significant because many partners’ business is built by internal firm referrals that help build the necessary foundations. Yet she is the first and only black lawyer that Davis & Harwell has ever had. Biggs reconciles this apparent contradiction because she thinks the size of her seven-lawyer firm profoundly changes the dynamics that exist at big firms: “I’m not good at being one in a zillion. I work best when I know the people I work with.” The firm handles a lot of divorces requiring equitable distributions for high-end clients who are primarily white. Despite this calculated approach to choosing which firm to join, Biggs is pragmatic about the fact that she will inevitably face discrimination: “I do think some clients have chosen not to work with me because of my color.” While Biggs sees disadvantages for African-Americans, particularly at the large firms, she emphasizes that that is only part of the picture: “I believe the opportunities are numerous for all of us to find a positive way to make a comfortable living and make a clear contribution to the lives of others.” As for improving the opportunities for black lawyers at the country’s elite firms, Harvard’s Wilkins says that firms need to continue to keep the pipeline of black associates open and be actively engaged in their development: “Firms need to make sure individual black lawyers are being invested in, and invested in early.” He adds an observation that should affect the job search for associates of any color. Firms, Wilkins notes, “need to talk to people about business development from Day One. That’s the way to be successful. Period. The end.” Elizabeth Amon is a senior reporter at The American Lawyer, where this article first appeared in the May issue.