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They’re trying. You can say that much. Large law firms have their fancy, well-designed Web sites with the word “diversity” prominently displayed. They have their diversity committees, diversity partners, mentors, affinity groups, and a host of other programs designed to attract and retain minority and women lawyers. Most important, they have their clients, Fortune 500 companies such as Wal-Mart and Sara Lee demanding that their outside counsel go beyond the white male norm. In one case, Wal-Mart went so far as to terminate its relationship with a firm for lacking diversity. So far, none of it seems to be working all that well. According to the yet-to-be-released survey by the Minority Law Journal (a sister publication to Legal Times), the average percentage of minority lawyers in the 20 highest-grossing firms in D.C. stands at about 13 percent. For minority partners, the number drops to 6 percent. That stands in contrast to the 2000 U.S. Census, which showed that about 30 percent of the population belongs to a minority ethnic group. “Some law firms could hold a conference of their black lawyers in a phone booth,” says Kurt Schmoke, dean of the Howard University School of Law. He adds, though, that “other firms have worked hard on this. They have created a network, and that just builds on itself.” But now, there’s another obstacle. The same forces that opposed affirmative action at law schools such as the University of Michigan have taken their cause to firms’ diversity initiatives. At an American Enterprise Institute program last week in Washington, Curt Levey, executive director of the Committee for Justice, challenged the legality of corporate pressure on law firm hiring practices. His rationale? Title VII of the Civil Rights Act, which prohibits the use of race, creed, or color when considering candidates for a job. Levey argued that law firms that have responded to client demands by putting together legal teams of a particular racial composition could face discrimination lawsuits. “Not only may a law firm be liable for discrimination, but so may be the individual employees and partners at the law firm that participated in the discriminatory decisions,” Levey writes in a paper titled “ The Legal Implications of Complying with Race and Gender-based Client Preferences.” But, R. Bruce McLean, chairman of Akin Gump Strauss Hauer & Feld, has a counter-argument. He says firms are doing nothing illegal by trying to attract diverse candidates. “It’s not as though we have a quota system,” he says. “We’d like to hire all the highly qualified candidates we can find.” NEW FIRESTORM? The spark that’s ignited this latest firestorm over diversity in law firms stems from research conducted by UCLA law professor Richard Sander, which posits a credentials gap between minority associates and their white counterparts. Sander, who was also on the AEI panel last week, believes big firms are dooming minorities to failure, throwing them into jobs for which they aren’t academically ready. Sander actually agrees with Levey that racial preferences in corporate counsel hiring practices are illegal. “There are very few areas I can think of in this society where there’s been so much fear about looking at the facts,” he says. “I think Curt is right and [using racial preferences] is an illegal part of the process.” Levey is currently executive director of the Committee for Justice — a group that promotes the appointment of “constitutionalist” judges — though he said his work on the report was independent of his current position. Prior to joining the Committee for Justice, he served as the director of legal and public affairs for the Center for Individual Rights, which filed the lawsuits that led to the University of Michigan affirmative-action cases. In those cases, the Supreme Court upheld the limited right of universities to consider race in admissions procedures in order to achieve a diverse student body. Consultant Shirley Wilcher and Akin Gump litigation partner Michele Roberts gave rebuttal arguments at last week’s forum, protesting the idea that minorities are over-represented in large firms and unqualified for the intense workload. Wilcher, president of a diversity consulting firm, said affirmative action is more than selection. “It’s taking a look at barriers at the entry level but all the way up to the executive suite, and in the case of law firms that means looking at who becomes partners.” Roberts said minorities often leave firms because they have better opportunities in government or in-house counsel positions. As to dissatisfaction among minority attorneys, she pointed to the quality of work given to minority associates and a lack of mentoring opportunities. “Like it or not, there remains both covert and overt discrimination in law firms. Period,” Roberts said in her signature blunt style. Roberts said because of the wide-ranging size and culture at the firms in Sander’s data, the professor’s study compared “apples and oranges, bananas and bowling balls.” She responded to Sander’s assertion that elite law firms are recruiting minority associates with inadequate credentials, saying that she has worked hard to convince her partners that they are not bringing in “mediocre affirmative-action babies.” She said: “We pay [associates] too much already. It doesn’t make sense to bring in people who can’t compete.” SURVEY SAYS In the Minority Law Journal‘s 2006 survey, Howrey and Latham & Watkins tie for having the highest percentage of minority attorneys — partners and associates — at 18.3 percent. Howrey actually dropped a percentage point from 2005 but Latham & Watkins gained. Lowest in terms of overall minority representation is Wiley Rein, whose numbers have dropped steadily in the past four years from 9 percent in 2002 to 7 percent last year. Next on the list is Patton Boggs at 8.1 percent while Venable comes in at 9 percent in the survey. In the important realm of minority partners, Howrey is still in the lead with 10.3 percent, and the only firm that even comes close to Howrey’s benchmark is Akin Gump with 9.3 percent. The full survey will be released in the Minority Law Journal‘s April 2007 issue.
Ross Todd, a staff writer for The American Lawyer , an ALM publication, contributed to this report. Attila Berry can be contacted at [email protected].

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