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Lawyers are generally results-oriented people. Results count when brokering deals, arguing cases and serving clients. So why is it that the only things the legal profession seem to focus on when it comes to diversity are commitment and “best practices?” Good intentions and great strategies, while meaningful, lack significance when the results are lackluster at best.

There is no loss of law firms, law departments and bar associations extolling the virtues of diversity. Nor is there any lack of information and resources providing the alleged “blueprint” for diversity success, aptly dubbed “best practices.” Conferences, summits, roundtables and workshops abound where the discussion is centered on, or inevitably turns to, a laundry list of what are now fairly well-known “best practices” for improving diversity in the legal profession. These discussions most often focus on what one can, should or ought to be doing, rather than on what anyone actually is doing or has done.

For the uninitiated, the following represents the highlights, targeted recruiting, less emphasis on “boxed credentials” and more on behavioral interviewing, sensitivity training, affinity groups, mentoring programs, and better management of assignment and business development processes, to name a few. Presumably, these “best practices” are not the problem. They could, in fact, improve diversity within the profession if sincerely and aggressively implemented. However, the data suggest that progress in actually achieving diversity within the profession has been less than stellar and in some instances downright stagnant.

There are countless reports and publications compiling the diversity statistics of the legal profession. It is easy to be encouraged by what appears to be continual progress in the diversity of the profession, but an astute evaluation of the data reveals a more troubling picture, one that signals a significant decline in the once aggressive gains being achieved by women and minorities in the profession.

A 2003 report by the Equal Employment Opportunity Commission cites a “substantial increase” in the number of women and minorities in the profession between 1975 and 2002. However, upon closer inspection of the data, it is clear that large gains were made in the 1980s and early ’90s, with slowing progress, and even some decline, taking over in more recent years. Today, many of these reports cite what has become the excruciatingly slow pace of progress in diversifying the profession. The 2005 “Miles to Go” report of the American Bar Association’s Commission on Racial and Ethnic Diversity in the Profession (first published in 1998) notes that, in particular, “minority entry into the profession has slowed considerably since the … mid-1990s,” which curiously coincides with the rise of our collective diversity commitment.

These stagnant trends are also reflected in other data on diversity in the profession. The National Association for Law Placement’s recent analysis of its 2007-08 Directory of Legal Employers as well as Legal sister publication The Minority Law Journal‘s 2007 Diversity Scorecard both highlight the marginal gains in overall diversity in law firms and the very slow progress of women and minorities in ascending to the highest ranks of law firm leadership. According to data compiled by the Minority Corporate Counsel Association, women and minorities are not faring significantly better in achieving leadership roles in law departments among Fortune 500 corporations.

Locally, despite commitments signed by most of the large law firms and law departments in the mid-1990s to increase the retention and promotion of women and minorities within their organizations and in the profession generally, progress has been measured at best. NALP statistics for the period from 2001 to 2007 show a modest increase in the percentage of minority partners in Philadelphia law firms from 1.9 percent to 3.2 percent, which remains well below the national average of 5.4 percent, and a similarly slight increase in the percentage of minority associates from 8.8 percent to 12.5 percent (also well below the national average of 19.9 percent).

However, the most recent Report Card of the Pennsylvania Bar Association’s Commission on Women in the Profession, tracking the progress of women locally, noted that “[t]he position of women in large firms has not improved in the [last] six years,” and that there is a disturbing decline in the percentages of women partners.

Another sign of the lack of progress being made to achieve increased diversity in the profession is the trend of law school enrollment. Data show that the representation of minorities in law school has begun to decline for the first time. Furthermore, those minorities and women who do graduate from law school continue to choose public sector and public interest employment over private sector employment at a rate much higher than white males, despite the professed commitment by private sector employers to aggressively recruit these diverse law graduates.

And then there are the staggering attrition rates for women and minorities out of private sector employment, which far exceed that of white males, as published by the ABA (“Visible Invisibility” Report), the National Association of Women Lawyers and others.

Tracking the representation, let alone the progress, of GLBT (gay, lesbian, bisexual and transgender) and disabled lawyers is even scarcer. Although NALP has been tracking the representation of GLBT and disabled lawyers in its Directory of Legal Employers for five years, the increase in representation of either population among the law firms reflected in the directory has been negligible. In the five-year period between 2002 and 2007, the number of openly GLBT lawyers has grown from less than 1 percent to 1.5 percent. The number of disabled lawyers reported rose only a fraction from 0.13 percent in 2005 to 0.17 percent in 2007. Census projections estimate the disabled populations among the employed labor force at 14 percent, and estimates of GLBT persons within the labor force are as high as 10 percent. There is clearly a gross under-representation of these populations in the legal profession, and recent diversity efforts have apparently done little to improve the picture.

For a profession that generally prides itself on achievement in various forms (verdicts, IPOs, closings, etc.), it is curious that the one thing we talk so much about doing — improving diversity — we have utterly failed to accomplish by many standards. This failing has more to do with our lack of aggressive action than with the lack of commitment, resources or even strategies. For all the talk of “best practices,” who can really attest to the aggressive practices that have been implemented in their law firm, law department or bar association that reflect the strategies necessary to achieve meaningful results in improving diversity? Not many.

For all of the professed commitment to diversity, who can actually demonstrate measurable and sustained progress in the retention and advancement of women and lawyers of color, to say nothing of the representation of GLBT and disabled lawyers who are even less meaningfully reflected in the diversity efforts of the profession?

We have allowed ourselves to be mollified by diversity rhetoric for too long. We need real diversity action. We need people who are willing to stop discussing “best practices” and start implementing them, to dispense with pledges and commitments and instead replace them with measurement and accountability. After all, who among us could legitimately extol the virtues of our commitment to clients or the ingenuity of our legal strategies if they did not result in demonstrable success? How then can we continue to pat ourselves on the collective back based on commitments and “best practices” that have yet to deliver promised results?

It may very well be that the commitments by some are disingenuous. It may also turn out that some practices thought to be “best” are only mediocre and require more creative thinking. However, it is too premature to presume either of those conclusions when we have not made any robust effort to demonstrate commitment through aggressive implementation of the known “best practices.” After more than a decade of touting diversity “best” practices, isn’t it time for meaningful diversity progress?

Stacy L. Hawkins is a diversity consultant. She was formerly director of diversity for Ballard Spahr Andrews & Ingersoll, resident in the Philadelphia office. Previously, she practiced in the areas of labor and employment and corporate diversity counseling in Washington, D.C. She can be reached at 215-635-3638 or [email protected].

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