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Roderick A. Palmore’s manifesto on diversity, “Call to Action,” was prompted by a realization that “[u]nfortunately . . . all objective assessments show that the collective efforts and gains of law firms in diversity have reached a disappointing plateau.” See www.clocalltoaction.com . This observation by the Sara Lee Corp. general counsel raises the question, in light of all of the human and financial resources that firms have devoted to diversity initiatives: Why is the profession not further along in achieving diversity, especially at the more senior levels? One reason is that diversity initiatives must expand beyond the recruiting and junior-associate mentoring paradigm. That paradigm all too often leads only to a revolving door for minorities when more senior minority attorneys run up against retention issues, leave and are replaced with junior attorneys. Unfortunately, the lure of the relatively easy success of recruiting and mentoring programs has hindered true success in the diversity area and put up a roadblock for achieving success at the more senior levels. Given this existing, and identifiable, roadblock, the question remains: Is the legal community really interested in diversity? If it is, then what can be done to existing diversity initiatives to overcome this roadblock? Many, if not most, law firms have diversity committees, diversity statements and programs for recruiting and mentoring minority attorneys. Firms aggressively seek out law students to hire. Mentoring and professional development programs are designed to assist the development of associates at the junior levels. These actions are extremely valuable and do well in ensuring that law firms maintain an overall level of diversity. Similarly, many, if not most, corporations include diversity as one of their core values and have undertaken initiatives to consider or track diversity when it comes to their outside suppliers, including law firms. Corporations encourage law firms to field diverse teams for client representations, and most law firms are aware of the clients that place a high value on diversity. Law firms have responded and staff teams with minority attorneys, especially when such teams are requested by clients. These efforts have shown results. The overall number of minority attorneys has shown an increase throughout law firms. Emily Barker, “Knowing the Score,” Minority Law Journal, May 1, 2006, at 19. Before becoming complacent, however, the profession should realize that these efforts fall short of achieving real diversity because law firms must achieve diversity at all levels before success can be declared. The 2006 Diversity Scorecard published by Minority Law Journal, an affiliate of The National Law Journal, shows that minority partners comprised only 5% of the total partners at the 240 firms surveyed. This is 6.4% less than the 11.4% of minority attorneys in law firms. Id. Ultimately, to address the overall low numbers of minority partners, law firms have to acknowledge the limitations of recruiting and mentoring programs that operate at the entry and junior levels. Focus on the senior levels For law firms, this means tackling hard issues-for example, access to business and professional-development opportunities for senior minority attorneys. Other issues include the participation of minority attorneys in firm committees and management, and exposure to high-profile cases and clients. Many of these issues apply to all attorneys, but they apply disproportionately to senior minority attorneys. Therefore, diversity initiatives also must operate at the level of minority senior associates and minority partners. To focus entirely on junior-level attorneys does nothing to address the low percentages of minority partners in law firms or the retention of minority associates as they become more senior. Only an expanded focus can address what is being lost in the translation from junior minority attorney to senior minority associate to minority partner. To achieve this refocusing, it is essential for law firms to conduct a periodic review of their diversity initiatives, to determine whether the actions undertaken are having the desired effect and addressing all diversity issues. Unfortunately, however, after experiencing initial successes with diversity initiatives-such as increasing the overall number of minority attorneys-it is too easy to put those initiatives on autopilot and continue to undertake the same actions to simply increase the overall level of diversity.
DIVERSITY ‘Invisible’ attorneys seek notice Senior attorneys fall by the wayside True diversity means putting the focus on retention Women hold the keys to their success The carrot didn’t work, so clients apply the stick Trying for an early start on the ‘diversity pipeline’

Just examining numbers, however, can be deceptive. For example, recruiting- and mentoring-heavy initiatives may achieve success at the junior associate level and show satisfactory diversity numbers, but miss the boat when it comes to the senior ranks. Firms can identify this issue by undertaking a yearly analysis of attrition levels. Attrition rates for minority attorneys that are higher than the rates for nonminority attorneys at similar levels signify that other parts of the diversity initiative are not effective. If attrition rates are higher, then it is possible that senior minority attorneys are not seeing the proper incentives to stay-that is, they are not being given the same work and firm participation opportunities that promote retention. Such a disparity signals that issues relating to the assignment process and professional and business development opportunities may need to be addressed. Ways to address these issues may include increasing opportunities for high-profile assignments and client teams or boosting professional and business-development opportunities for more senior minority attorneys. Law firms can charge the appropriate firm committees with examining and addressing these issues if they exist. In addition to a retention analysis, firms also should undertake a yearly analysis to determine whether minority attorneys are being promoted at the same rates as nonminority attorneys. In addition, firms should examine overall diversity at the senior ranks and undertake efforts to ensure that diversity exists at those levels. Focusing on retention issues ultimately will address the promotion problem. If, however, diversity is not satisfactory at senior levels, firms should not just rely on promotion through the ranks, but should engage in targeted lateral recruiting for senior minority candidates so that diversity exists at the senior levels of the firm. One rationale sometimes used to explain stalled diversity efforts is surprising in its prevalence. Some individuals still believe that excellent, qualified minority attorneys cannot be found, or believe that standards must be lowered in order to hire or retain them. Ideas such as these must be addressed. Otherwise, senior minority attorneys might find that they reach a concrete ceiling within the realm of the nonminority legal community based on this rationale. It might be a good idea to consider bringing in a diversity consultant to address these issues. At a minimum, support must be given to minority attorneys to afford them the same opportunities for success as non-minority attorneys. It cannot be ignored that one of the most potent influences on the achievement of diversity comes from the client. A growing number of corporations have gone beyond the belief that an increase in numbers is enough to proclaim success. Over time, corporations have gone from requesting diversity statistics to requesting diverse teams and, now, to examining the way their cases are being staffed and handled at the senior levels. These efforts by corporations will improve retention and the long-term success of minority attorneys. The client’s role Ultimately, the question is how far a corporation will go in influencing a law firm’s team staffing or internal policy on how credit is awarded. One of the ways a corporation can influence the process is through selection of the person who gets the call or is the relationship partner on a matter. The request for handling a new matter can be made to a minority attorney who has worked on other matters for the corporation. Another way is to ensure that not just junior minority attorneys, but senior minority attorneys, staff cases for the corporation. Corporations routinely ask that law firms staff their cases with minority attorneys. Depending on how much influence a corporation wants to exert on the staffing of their matters, the corporation also can stress the importance of minority staffing at all levels and, most importantly, at the senior levels. In the absence of client requests, law firms can advance their initiatives on their own and consider senior minority attorneys and partners for leading and management roles when it comes to client representation. Representation relationships in place with many corporations stay in place when further representation decisions are made. Consciously expanding those relationships to include minority attorneys as primary contacts or other relationship partners, and not just fielding a more diverse team, is one way that problems can be addressed in a targeted manner. Senior minority attorneys often express concern about not being included on pitches or being included only when the corporation is known to have an interest in seeing a diverse team. Law firm managers and marketers should be knowledgeable about the areas of expertise of minority attorneys so that in addition to the outside corporation’s interest in diversity being a driving force for including a minority in business development brochures or presentations, the expertise of all attorneys is considered and the law firm does not let its valuable expertise go to waste. There should be an effort to include diverse attorneys in all pitches where their expertise can be used, not just the ones for clients that actively seek diverse teams. There is no denying that minority lawyers welcome and benefit from the diversity push from clients. But if law firms are interested in diversity, minority lawyers should not just be thought of when diversity-driven business is on the line. Nonminorities in the room Firms also should examine who is leading the promotion of the firm’s diversity initiatives. For the most part, diversity initiatives and efforts are headed by minority attorneys. One of the comments often made at diversity seminars, however, is that there are not enough nonminority representatives in the room. Minorities affected by the lack of diversity naturally have an interest in increasing and enhancing diversity. But the visible and concrete actions toward diversity are all too often solely within the realm of minorities. While there may be a real fear that the drive for diversity will slow if minorities do not take the lead, everyone acknowledges that nonminorities are essential for its success. Nonminority attorneys must take an interest in diversity initiatives to ensure they succeed, even if only to support the mandate given to minorities to enact those initiatives. Buy-in, however, is more than just a verbal commitment. Diversity efforts should be funded, and top management needs to attend events and seminars, and in other ways participate in the diversity efforts of the law firm. Finally, diversity initiatives must contain some degree of accountability to be successful. That accountability can be tied to a reporting system or, ideally, tied to compensation. Without accountability, it is too easy for initiatives to become primarily lofty goals and ideals. Senior management of the firm should develop an incentive system for meeting the diversity goals of the firm and assume responsibility for overall compliance with diversity goals. Practice group heads should take responsibility for ensuring that senior minority attorneys are getting case experience commensurate with their peers. Consideration also should be given to the diversity of the practice group composition and leadership. Billing partners should have responsibility for client diversity requirements on their engagements being met and reported to clients when requested. Senior management should give consideration to the billing partner’s responsiveness to client diversity interests and the diversity of client teams. Diversity initiatives have shown some degree of success over the past years. Unfortunately, law firms still are struggling with the senior ranks and how to achieve and maintain diversity at those levels. To refocus diversity initiatives, law firms must direct new initiatives at the senior levels that will expand the opportunities for senior level minority attorneys. Only with initiatives at the senior levels will law firms achieve diversity throughout the ranks. Patricia G. Butler is chairwoman of Howrey’s diversity committee, based in the firm’s Washington office. She specializes in complex commercial litigation, domestic and international arbitrations and counseling of corporate clients in areas including business and commercial disputes, antitrust, government regulation and corporate practices.

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