Our ongoing Hot Topic page rounds up the latest stories about efforts to improve diversity in the legal profession, plus the specific challenges and milestones of that journey.
Sometimes the little things are what matters with respect to whether or not associates feel comfortable or decide to stick around. I remember, when I was a very young associate, Carl Leonard was chairman of the firm, and he took the time to meet with me and the three other Latino associates � there were just four of us � and we had lunch together. And it was very meaningful. We talked to him about our concerns and where we thought the firm needs to go with respect to diversity. And he listened
Andy Monach is the lawyer who recruited me from Harvard Law School. About three years later, after I had been at the firm for awhile, he came by � we weren’t working on a case together or anything � and asked me to lunch and we had lunch together. It was just one of those things that wasn’t planned, he just wanted to know how things were going� and it was very nice lunch.
Jim Garrett. I recall, my first year invited me to his home for a Christmas party which I attended. Again, it’s the little things that help make people feel their part of a firm and not just an employee of the firm.
What can be done for the minority partners you mentioned who are hanging on by their fingernails?
It’s true. I’m not going to mention names, but it’s true. With respect to partners, I think it’s very important for the firm to look to involve minority partners on firm committees and firm management. I think that makes a big difference. I also think it’s important for management to make sure that when opportunities come into the firm, that minority partners are considered for those opportunities.
One thing that’s very controversial is whether you should consider, in determining compensation, how well practice group leaders have done with respect to diversity in retention. If you have a group that historically has not been able to retain lawyers of color, why is that? What should be done to improve that?
What do you think about that? Should compensation come into play?
My view is that firms make money from associates working very hard. We lose money when associates come in the door and leave within two years. That results in a net loss to the firm because it’s very expensive to hire these folks as summer associates, train them and try to develop them. So if you have a partner who has a revolving door, I do think that should be factor in determining compensation.
I think that firms underutilize or under-compensate partners who do a very good job of providing lawyers with feedback, with mentoring and with the day to day advice that is necessary to make sure someone ends up being a good lawyer. Some people think it’s a soft issue � “Oh so what? He’s a good people person.” But you lose those people persons and your law firm isn’t going to last very long. We give lot of credit in large firms to lawyers who bring home the bacon and bill the hours, but I think it’s very important to give credit to those lawyers who are willing to take the time to improve the environment of the firm, associate morale, and to make sure people remember why they became lawyers in the first place.
I think that pro bono opportunities go a long way to improving morale and retention. Because pro bono gives young lawyers opportunity to practice law. If you have a young lawyers working on a securities fraud case, what is the chance that young lawyer will ever do an oral argument? Pretty slim. However, what you can do, is have the young lawyer work on the securities fraud case that is very important to the young lawyer and the client and even though you may not get a lot of on-your-feet experience, we’re also going to let you work on this small pro bono matter that you will run on your own with partner supervision. If there are depositions, oral arguments with the pro bono case, you’ll get to do that.
I’ve been very fortunate � which is part of why I’ve stuck around for 22 years, is that every single year that I’ve been at Morrison & Foerster, I’ve had at least one significant pro bono case on my plate. I think that’s a big reason why I am still at the firm.
Did you ask for those opportunities?
The cases have pretty much come to me, but, of course, you have to get permission to do them. In 22 years, nobody has complained to me that I’ve done too much pro bono work. Now that could be because with many of the cases we’ve been awarded legal fees, and that’s always nice to get. But I’ve got such good experience on these pro bono cases. I’ve tried eight civil rights cases, you’re not going to find too many civil rights lawyers who have tried eight civil rights cases, and I have. And I’ve done it at a big firm. I’ve argued in the California Supreme Court, in the Ninth Circuit, in the California Court of Appeal twice, all pro bono cases. I’ve gotten some great experience from pro bono cases and some great exposure for me and the firm. And I’m proud to say, I’ve gotten some great opportunities for young lawyers.
Just yesterday, I decided to go ahead and take three pro bono cases that have been lingering for about a month � people trying to get me to accept their cases � just yesterday, I assigned those to three young lawyers: one woman, one lawyer of color and one young white lawyer who hadn’t yet had a chance to take a deposition. All three of them are going to get deposition experience, motion experience � on-their-feet experience. They’re basically going to run the case on their own, with minimal supervision from me. I think that’s the type of thing that helps keeps lawyers happy and helps you with retention. And I think it’s especially important for lawyers of color, because in many cases lawyers of color have a desire to give something back to their community. I’m not an advocate for forcing someone to do pro bono if someone doesn’t want to, if you don’t want to hang around with poor people, that’s OK. But it you want to, it should be something firms allow you to do.
Would you recommend that partners think very carefully as to which associates they assign pro bono?
It’s a matter of making sure all opportunities are evenly distributed. And that if you have an associate who has not yet had experiences in the courtroom, that you look for opportunities, and pro bono is often one place where you can find those opportunities.
If a firm doesn’t have a lot of minority associates or partners, how does that firm attract more if they don’t have any to begin with?
There are a number of law firms that historically have not placed a lot of emphasis on diversity and who are now trying to play catch-up because they see now that, all of a sudden, you have Wal-Mart asking questions about how many Latino attorneys, and all of a sudden, the answer to that question suddenly matters � Wal-Mart being one of a number of companies that deserves substantial credit for their efforts in this area.
Now you have a lot more competition for the few Latino and African-American law students at the top schools. About 15 years ago, when I went to Boalt for the first time to recruit, there weren’t that many law firms, if any, that were making special efforts to find Latino and African-American law students. I was interested because I wanted to diversify our firm. In fact, I recruited two of my law school classmates from Harvard who were Latino to join me at Morrison & Foerster, to triple our number of Latinos. What I found is, in the last five years, the interest of law firms in supporting minority groups at the law schools has just exploded. So that that now you have more firms competing for a smaller pool of talent because of Prop 209 and other things that affects the size of these classes.
That has made it extremely difficult for firms that do not have minority lawyers to become players, because if you’re a minority law student and you’re looking at law firm No. 1 that has no African-American partners, no Latino partners, and law firm No. 2 that is the same size but they’ve got two African-American partners and three Latinos, it’s a no-brainer, I know where I’m going. Those numbers just jump off the page. When a law firm doesn’t have a single African-American partner, that’s bad. That law firm needs to be making a special effort to find a lateral whom they can bring in as a partner to help in this area. Because it’s going to be extremely hard for them to compete with a firm like Morrison & Foerster, where I think we have 15 African-American and Latino partners combined.
Is there a reason you’re saying African-American and Latino but not Asian?
Yes. I’ll tell you why I am focusing on this. Let me say something about my Asian brothers that I’ve said before publicly. Many law firms believe, in my view, that it’s less risky to hire an Asian lawyer than an African-American or a Latino. Nobody will want to say that, and that’s what I believe, and I’ve believed that for a while, and I think the numbers support that. There are a lot more Asians who are given opportunities at big firms than African-Americans or Latinos. Having said that, let me say this on behalf of my Asian brothers, they too are struggling on the path to partnership. Big law firms have managed to accept the notion of having Asian associates in their ranks, but it has been difficult to convert that to Asian partners. Asian partners are doing better than African-American or Latino partners � in fact, I think there might be more Asian partners than African-American and Latino combined in San Francisco. But they still are having a difficult time. So the reason why I focus my comments at times on African-American and Latino is pretty simple: because that’s where the numbers are so dismal. Asian associates at least are having better luck getting their foot in the door.
Why are they having better luck?
People are going to say I am stereotyping but I am going to say what I believe: There are people who feel less threatened by an Asian lawyer than they do by an African-American or a Latino lawyer. I think there are people who think Asian-Americans as a group are more intelligent than African-Americans or Latinos. That may sound controversial, but that’s what I think some people think. Therefore it becomes a little easier for their Asians to get their foot in door, but that’s not to say they don’t have problems. They’re not advancing as well as I would like to see in the rank of partnership. We’re doing better than when I started, but it’s a slow process.
What can those firms without diverse partnerships do if they want to increase minority representation?
If I am running a law firm and I have no Latino or black partners, I am going to make it a priority to find me a lateral that I can bring in. It has to be a priority of firm management; it just can’t be one well-intentioned person out on a hunt. It needs to be a management priority. The firm needs to recognize: I’ve got a problem. If you’re a medium-size-to-large law firm in California, and you don’t have African-American or Latino partners, that’s a problem. You need to ask yourself why. And you need to make efforts to get someone in. If that means going to the U.S. attorney’s office and finding an outstanding trial lawyer, or if that means, going and raiding a smaller firm for someone who is very talented in what they do, there are people out there who are talented who can be brought in.
I’ll tell you what the key is: If you simply introduce them to your clients � that has got to be in my view, the most underutilized tool of law firms throughout America. Partners aren’t doing as good of a job as they could in introducing their minority partners to existing clients. It’s really unfortunate, because there really are many existing clients who would love to give work to an African-American but who may not know you even have an African-American partner, because no one has told them, or has even bothered to introduce them to that partner. Cross selling is something that can benefit firms in general and minority partners in particular, and it just doesn’t happen enough.
What is going to motivate firms to diversify?
There’s an easy answer: That’s the client. At the end of day, whether large law firms are diversified in my lifetime is going to depend on amount of interest and pressure that is placed upon firms by the client.
And, do you see the level of diversity dramatically changing in your lifetime?
The reason why I’m cautiously optimistic is, I’ve been hearing a lot lately from minority attorneys who work with clients in-house who are talking about increasing efforts of some very well-intentioned people to take steps to ensure that firms are giving credit to minority lawyers. Step No.1 was clients asking firms to report on the numbers of minority lawyers working on your cases, how many hours are they working. And that was OK, but now clients are taking it a step further. And they’re asking more questions: who is getting credit for the work that comes in the door? And that’s critical because that’s how people advance. If you have an African-American lawyer � or Asian � who brings in a big client and bills lots of hours, that is a significant factor in determining whether that lawyer is going to succeed and how high that lawyer is going to climb. And that is a powerful weapon that clients have that I think they’re going to utilize more in upcoming years.
Kellie Schmitt is a reporter with The Recorder, which publishes Diversity. She can be reached at [email protected].