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A great majority of the buzz surrounding the issue of diversity in the legal profession, locally and on the national level, has focused on the recruiting, hiring, retention and promotion practices of only the largest law firms in the country. However, despite the impression that one would understandably get from the emphasis placed on these diversity discussions, the overwhelming majority of lawyers in the United States do not practice in large law firms. According to the latest statistics compiled by the American Bar Association, 86 percent of lawyers in private practice are employed in firms with less than 100 attorneys, and firms that employ over 100 attorneys represent only 1 percent of all law firms in the country. Thus, any evaluation or discussion of diversity in the legal profession would be incomplete without an examination of the hiring, retention and promotion efforts of small firms. This article will examine the state of diversity in the small firm market, while also suggesting measures that can be taken to increase the level of diversity in this often-overlooked but very significant segment of the legal profession. First, for the sake of clarity, the term “small firm” as used herein refers to law firms employing between 10 and 100 attorneys. Next, while this market segment includes plaintiffs firms, this article should in no way be construed as an attempt to pile criticism on that subsegment, whose shortcomings in the area of diversity were revealed earlier this year in an article published in The Legal.Indeed, in response to the recent outcry the plaintiffs bar has initiated efforts to increase the level of diversity among its attorneys. Finally, the following discussion may seem to focus more on ethnic or racial diversity than gender diversity. This is because, according to the latest figures released by the U.S. Equal Employment Opportunity Commission, law firm size is more strongly related to the percentage of minority associates than the percentage of women associates, with that characteristic being directly associated with the percentage of minorities employed at a particular firm. In other words, the smaller the firm, the less likely one would be to find ethnically or racially diverse attorneys employed there. By contrast, the association between law firm size and the number of women associates employed was not as apparent. Small Firm Diversity Because much of the focus with respect to diversity has been on the practices of the largest firms in the country, and also because smaller firms are not subject to the same reporting requirements as larger firms, it is very difficult to locate empirical data on the employment practices of this sector of the legal profession. However, intuition, along with the facts and figures that are available, indicate that no matter how inadequate one believes the diversity efforts of large firms have been, there are even bigger challenges in the small firm market. While larger firms have been focused on improving diversity for the better part of the last 10 years, many smaller law firms have only recently begun to acknowledge diversity as an issue worth addressing. Altman Weil senior consultant Virginia Essandoh, who regularly advises law firms on diversity initiatives and best practices, reiterated this point, stating that “[s]mall firms now are asking the questions that large firms asked 10 years ago.” Essandoh added that many “small firms don’t even know the basics” when it comes to diversity. Similarly, the EEOC, in its most recent report on diversity in law firms, found that in the largest national law firms, the focus of diversity efforts has begun to shift from hiring and initial access to concerns related to the terms and conditions of employment, especially promotion to partnership. Contrastingly, the EEOC concluded, in the “smaller, regional and local law firms, questions about the fairness and openness of hiring practices probably still remain, particularly for minority lawyers.” There are many explanations as to why small firms have been so slow to implement diversity initiatives. First, it is helpful to examine the driving forces behind large firms’ efforts to improve their diversity numbers. Large firms have placed a greater emphasis on improving diversity primarily because of increasing pressure from their biggest corporate clients to do so. These corporations provide goods and services to individuals worldwide and thus seek a work force � including outside counsel � that reflects the diversity of their customers. A number of these global entities, such as Wal-Mart, Accenture and Sara Lee, for example, have added bite to their bark by dismissing or threatening to dismiss law firms that fail to show a true commitment to promoting diversity, regardless of the quality of their work. Hence, for large law firms, a failure to improve upon past diversity efforts could impact the bottom line in a very significant way. However, there is no equivalent pressure in the small firm market. As the EEOC found in its assessment of law firm diversity, smaller firms are more likely to be regional in scope, serving a more limited client base. Large law firms’ diversity numbers are publicly available, thanks to organizations like the National Association for Law Placement (NALP) and government agencies like the EEOC. Small firms are not subject to the same level of scrutiny and can, therefore, recruit and hire with little or no fear of repercussions or pressure from clients, authorities or the public to improve their diversity practices. This lack of transparency, along with the small number of attorneys and limited financial resources, run counter to efforts to improve diversity in other ways. For example, the smaller number of attorneys in an office may reinforce the natural tendency to hire those who “fit in,” to “preserve firm culture” or to maintain the status quo. In addition, when questioned about the subject of diversity, small firms typically cite resource-allocation and time-management concerns as impediments to the implementation of meaningful diversity initiatives. With many small firms the prevailing sentiment is that with such a small number of lawyers, their time can be better spent servicing a client or networking to identify new clients, as opposed to taking expensive trips to recruiting events to identify talented diverse candidates. Mindful of Limitations As previously discussed, smaller firms often cite the same concerns when discussions about recruiting diverse talent occur: lack of access, time and money. However, as a handful of small firms have shown, both locally and nationwide, there are ways to improve and promote diversity in the small firm market while also addressing the common concerns of small firm practitioners. One solution, with regard to cost, is for two or more small firms to host a joint diversity recruiting event. By sharing the costs of sponsoring such an event and pooling available resources, two or more small firms can successfully achieve what one could not alone. Some small firms have also found it beneficial, regarding concerns about access to diverse talent, to become active in minority communities by, for example, making presentations at legal programs, serving on the board or acting as pro bono counsel for a community-based organization, or writing legal articles than can be translated into another language, if necessary. Small-firm practitioners can also leverage the visibility and networking opportunities created by participation and/or leadership in local or national bar organizations to identify talented diverse attorneys for recruitment purposes. Small firms can also use technology as a tool for improving diversity. Technology is an especially attractive option because it addresses all three of the common concerns of small firm attorneys with respect to recruiting: It provides access to more candidates by eliminating geographical boundaries to communication and it decreases disruption to an attorney’s practice by allowing access to qualified candidates without incurring travel expenses. Law schools, at an increasing rate, are making it easier to communicate with students by offering recruiting assistance to small firms that wish to recruit students for employment. This assistance has come, mainly, in the form of such services as online job boards and virtual job fairs. In addition, the American Bar Association, through its General Practice, Solo and Small Firm Division and its Commission on Racial and Ethnic Diversity in the Profession, offers many online services, free of charge, to assist small firm practitioners in initiating and maintaining diversity initiatives. Contrary to popular belief, promoting diversity is not always just about recruiting and hiring diverse attorneys for permanent employment. Small firms can also explore the option of hiring diverse law students as interns and law clerks. This creates a mutually beneficial situation, where the students can acquire practical experience, build their resumes and take advantage of valuable mentoring opportunities, while the law firm receives additional support and research capabilities. Based on the percentage of all attorneys employed in small law firms, there are significant diversity gains to be realized in that sector � gains that will ultimately aid in the diversity efforts of the legal profession as a whole. As stated by Sandra Yamate, director of the American Bar Association’s Commission on Racial and Ethnic Diversity in the Profession, “Diversity is not an issue just for law schools or large firms or bar associations or corporations. It is not an issue just for racial and ethnic minorities. It impacts our entire profession, our system of justice, and our society. Solos and small firm lawyers are integral to diversity efforts.” Achieving true racial, ethnic and gender diversity in America’s law firms is still very much a work in progress, with the majority of the mission yet to be completed. However, true diversity in the legal profession, specifically in law firms, can never be a reality if the commitment to diversify is not adopted by the small firm market.

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