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As part of its ongoing Roundtable series, The Recorder recently asked five San Francisco Bay Area attorneys to participate in a discussion about issues related to minority diversity within the legal profession. The discussion was moderated by Lloyd Johnson, publisher of Corporate Counsel magazine, a publication of American Lawyer Media, which also publishes The Recorder. What follows is an edited transcript of the March 9 Roundtable discussion.

Teveia Barnes is executive director of Lawyers for One America, a nonprofit organization that works on issues involving greater diversity within the legal profession. She is a former associate general counsel at Bank of America.

Arturo Gonzalez is a partner in the San Francisco office of Morrison & Foerster, where he specializes in litigation.

Joan Haratani is a director in the Oakland office of Crosby, Heafey, Roach & May, with a practice that focuses on product liability and litigation matters.

Jennifer Liu serves as an in-house counsel for Sony Computer Entertainment America Inc. in San Mateo. She is a former litigation partner at San Francisco’s Townsend and Townsend and Crew.

Lindbergh Porter Jr. is a partner in the San Francisco office of Allen, Matkins, Leck, Gamble & Mallory, where he specializes in labor and employment law.

Lloyd Johnson Jr. (moderator) is publisher of Corporate Counsel magazine, and is the former executive director of the Minority Corporate Counsel Association. LLOYD JOHNSON: In a context like this, many people believe the views of white males or people who don’t typically participate in these kinds of discussions are not present. So as the moderator as well as provocateur, I am going to take on the role of a white male. ARTURO GONZALEZ: You want us to assume you’re a white guy here? It makes a difference in how I treat you. JOHNSON: I’m a white male, Harvard Law Review, of course. Senior partner, rainmaker, top billing partner in the firm over the last five years. I frankly take the view that this firm and the legal profession should be based on merit and not on color, and that basically, everybody should be treated fairly. I am very concerned that relaxing the standards, whether it relates to people getting into law school or people being admitted to the bar, and certainly coming to this firm, will have an impact on our standards and ultimately dilute the quality of the work that we send out. GONZALEZ: I think it’s a great mistake to assume that students who perform well on their LSAT or get the best grades in law school are necessarily going to be the best lawyers. I think that’s one of the biggest obstacles to getting good people in the door. Not necessarily people of color, just good people. But it has a disproportionate impact on people of color. With respect to relaxing standards, I’d say that if you take a poll of the partners who are successful in your firm, you will find that they are not necessarily all 4.0s, and you’ll find that they don’t necessarily have the best test scores. I think what you’ll find consistently among all of them is that they all have probably overcome obstacles. I don’t necessarily agree that all partners were born with silver spoons in their mouths. As I get to know more of my partners at Morrison & Foerster, I find out that many of them actually had to overcome obstacles, even the white guys. JOHNSON: Let me ask about the following situation: A midlevel minority attorney wants to establish a formal mentoring program in a corporate law department that is focused exclusively on the bottom line. Jennifer, what are some of the challenges, if any, you think you would face if you tried to do that at Sony? JENNIFER LIU: Well, obviously money is an issue. Trying to convince my boss that resources should be devoted to mentoring people in the law department, when really it’s all about running the business and making the business grow. Additionally, our law department is getting more diverse. We have me and we have another Vietnamese-American attorney who’s gay. But for the most part, it’s a pretty white, largely female department. I would think that my boss would probably not necessarily understand why it was needed. He would say, “Listen, we’re here to do a job, let’s do the job. If you need mentoring, I’ll help you with the work. But in terms of any other outside interests or any other care and feeding that needs to be done, I don’t really see why we need to devote resources there.” You can try to make the arguments about how diversity will appeal in a business sense. But frankly, I haven’t found that really to be so successful because people see through that. They’re like, “Okay, well, there’s marginal benefit there, but I haven’t really seen a lot of real bottom-line benefit.” I’ve had more success by extending myself and saying, “This is my community.” The partners I worked with at Townsend recognized that right away by telling me, “You are out there in your community. You are the president of your bar association. There are potential clients out there, there are connections out there. You’re bringing in business.” That carried weight, and it got programs instituted and it got people to at least listen, whereas previously they might not have. TEVEIA BARNES: When I was at Bank of America, I had the benefit of having the CEO tell my boss that [diversity] was important. I would go to my boss and explain that as part of the business, we need to manage the differences within the department. And I probably would use the word “diversity,” but my definition would include every person in that department, from the general counsel down to the file clerk. It would include women, men, people of color and European-American men. The best way to increase the business is to be sure that everyone is doing their best work within the work environment. Because if they’re all doing their best work, the company will benefit. It is very much a bottom line. Mentoring, to me, includes white men. I mentored more white men than any other people because that’s what I had more of. I understood what they brought to the table. I made them feel comfortable. If they don’t feel at risk, they’re very supportive of you. Also, if you get rid of the dead weight, no matter what they look like, then they know that you’re real, and you have to take the actions. It can’t just be the words. It has to be the actions as well. THE VALUE OF MENTORING JOAN HARATANI: I’m not in a corporate law department. But I know that, having mentored a lot of different associates at the firm, it really is an issue of leveling the playing field. I think that anyone in any career knows that what is crucial to their success is having somebody that they can go to, to ask questions or to ask the things people talk about behind closed doors. Maybe it’s assistance with work, some type of guidance that calls for information beyond what their knowledge base is and beyond what their peers can assist them with. Speaking from my own personal experience, there have been times when I’ve really questioned not only my sanity being a litigator, but my career choice and my environs. There have been times when I wondered, “Is this the place for me, is this the job for me, is this what I want to continue doing?” And it really helps to have somebody that you respect to serve as a sounding board and whose confidence you can take seriously. What happens, I think, in a predominantly white, male environment such as a law firm is that you will find that the white male associates who joined the firm will have, automatically, some common ground with one or two or more of the partners who have power. It is just a fact of life. Whether their interests are common in terms of golf or their schools or what have you, those associates are going to have, naturally, through no fault of their own, somebody that they can go to when they have critical questions. Now, take the minority associate at a large law firm. Who does that person automatically have that common link with if there aren’t that many partners of color or there aren’t that many partners who they perceive, from their own experience, are going to be receptive to their needs? Maybe you have a firm where there are a great majority of white male partners who are going to listen to this person with open ears. But the associate doesn’t necessarily come from that point of view. So for me, mentoring serves as a really smart business move. Because if that person was qualified enough to get into your doors, and the firm or the corporation spent money recruiting and training that person, why not go the extra step of establishing a formal mentoring program for everybody? But not just for the associates of color because I think that leads to a whole different set of issues. GETTING TO KNOW YOU JOHNSON: It seems that certain people often come to the law firm with a chip on their shoulder and they’re overly sensitive to things. I, on a number of occasions, have gone over to an associate who happened to be an African-American male and tried to engage him in a conversation about sports. But as much as I wanted to talk about sports, he wanted to talk about the stock market. I, frankly, was kind of turned off by that. Or that whenever he and some of his friends are at some of our social occasions, as much as we try to bring them in, they always seem to be over in the corner by themselves. I would like someone to convince me that some of the responsibility for these challenges doesn’t fall on somebody other than me and people who look like me. LINDBERGH PORTER: You have a lot of problems. JOHNSON: I also have a lot of money and a lot of power. PORTER: I’m going to make you my special project, to move you from your presumptions. I wouldn’t say that they’re prejudices. I take you at your word that they’re not. But you have certain presumptions about things, and we just need to spend a lot of time together so you can get to know me better and perhaps have fewer presumptions. If you have fewer presumptions about me, maybe you’ll have fewer presumptions about others. As you go about running your law firm, you also have to recognize that there are people whose personal values and professional values coincide frequently. As you look at this law firm and how it has changed over the years — the number of women who are here, for example — you should recognize that we could not possibly work as well as we have and succeed as much as we have if they were not here. That’s because we would have restricted the talent available to us if we had continued to hire only white men. Look around the room, look around the world. We can debate the values of mentoring, but it’s a part of a larger objective that we are trying to achieve, and that’s a greater inclusiveness. It’s a tool that we use, just like any other tool that we might use in trying to make ourselves better, more efficient, and indeed, in serving the clients of this law firm. When you go to a minority associate, an African-American associate, and talk about sports, that person might not be interested in that, and you presume it for whatever reason. You should get to know the person as an individual. GONZALEZ: I have some suggestions for you as to how you can do a better job of recruiting and retaining minority lawyers. You should not assume that minority lawyers can’t do the work. I believe that there are some lawyers in some law firms who assume that there is a limit to the talent of the minority lawyer that’s sitting before them. I ask you to ask yourself this question. If you have two brand new associates, a black male and a white male, one from Santa Clara, the other from Golden Gate, and you just met them both, and they had the same grades in law school, similar test scores, similar backgrounds, and you had an important project, a really important project that you had to turn around in two days, and one of those two lawyers had to make that project and do it well, who are you going to give the project to? I will tell you that 90 percent of the people in your position would automatically give it to the white male. There’s an assumption, automatically, that the white guy’s going to do a better job. When it comes to minority lawyers, the minute we walk in the door, we’re one step behind, whether it’s because people think we got in because of affirmative action or whatever else it is, I don’t know. That’s an assumption, it’s an obstacle we’ve got to overcome. From day one, we’re behind. Don’t assume we can’t do the work. We talked a little bit about mentoring. You don’t have to be of the same race to mentor someone. When I started at Morrison & Foerster in the summer of 1984, I was the only Latino lawyer in the whole firm. There wasn’t a Latino partner to mentor me. Hell, there wasn’t even a Latino associate to mentor me. The only other Latino in the building was a janitor, maybe a secretary. Every mentor I’ve had in 16 years at this firm has been a white male. If you show an interest in peoples’ careers, it will make a tremendous difference. It’ll help them succeed. JOHNSON: When I go to lunch with this minority attorney, what should I say differently? Because last time I did everything that I could to try to express to this person that he would really be successful if he would just act more like me. And he just didn’t get it. GONZALEZ: My suggestion is to try to treat the minority attorney with the same respect that you treat anybody else. Try, if you can, to have the same kind of discussion with the minority lawyer that you would with anyone else. Find out what interests that person. But don’t try to go out of your way to create a discussion that you’re manufacturing just because you think it’s what this person wants to talk about. I think that if you just be yourself, treat this person like a regular human being, you’ll be fine. You don’t necessarily have to talk basketball. WANT TO MAKE YOUR LAW FIRM MORE COMPETITIVE? HIRE MORE MINORITY ATTORNEYS JOHNSON: I do not understand why our firm needs to commit the resources to increasing diversity. We are doing better financially than we’ve ever been doing before. In many instances, we have to turn down work. This whole notion that if you bring these people in, that you will be able to have a better practice, that people will be happier, that you will make more money, I’m sorry, I don’t buy it. I haven’t seen any evidence. GONZALEZ: Let me take a crack at that. What motivates a lot of people at your firm seems to be money. JOHNSON: Is that a bad thing? GONZALEZ: Let’s talk about that. The people whom you appear before when you are retained by a client, to try to convince them to do what you and your clients want to happen, who are they? Jurors, judges and, depending on your practice, perhaps politicians. Maybe you’re trying to get permits approved or something like that. What do they all have in common? Jurors, judges and politicians are no longer all white. Most juries in big cities are at least half minority. Many judges are judges of color. If you present your case with an all-white team, a bunch of white guys up there trying to convince the jury that’s half black or brown to do what you want them to do, I’m telling you that you are at a disadvantage if you’re comparing yourself to another law firm that’s got a black man standing before this jury, an Asian woman, maybe a Latin woman. JOHNSON: That’s my point. I knew this diversity thing was going to go so far that, because I am a white male, I’m going to be disadvantaged when I go in front of one of those juries. I knew it, I knew it, I knew it. You made my point. HARATANI:: You also have to look not only at the jury pool and the judges and the city officials that you may be before, but look at your client base. The demographics of this nation are changing. If you look at the corporate structure in the Fortune 500 companies, the number of women, the number of minorities, I think that you will look at the people of color and the women in your firm with open eyes. BARNES: Business schools recognize that the demographics of this country are changing tremendously to the point where minorities really are the majority and are increasing. That’s the market that the businesses are trying to reach. They are diversifying their middle management, with a plan to diversify their senior management. You’re going to not be dealing with the CEO or even necessarily the next level down, but the people of color who are coming up the ranks and the white men who believe that diversity is very much an essential part of their business plan. JOHNSON: What is the business justification for changing the way that we do business? GONZALEZ: The business justification is if you don’t change the way you do business, you will be out of business. PORTER: I would also suggest to you that if I leave, others are going to go with me. It just takes one person who’s been fed up with this to reject it. Then you will begin to see an attrition that is detrimental. You will begin to see people not coming because the firm hasn’t changed. And even those who are concerned about making money, they’re not all at your level of prominence and your ability to retire. They are still looking to make careers and names for themselves. They see that the direction that this law firm is going is not the direction of other law firms, not the direction of business clients, not the direction of the world, and in five years, it will decline. Nobody wants to be on a ship that’s sinking. Unless you change, in five years you won’t have the firm that is here now. You won’t attract the talent that is here now. GONZALEZ: You need to continue to recruit people to be successful. It is becoming more and more difficult for law firms such as yours to explain to students in an articulate way why you don’t have any black partners or Latino partners. Other law firms have Latino partners. My firm now has four. Other firms have black partners. My firm has three. That’s nothing to brag about, but that’s a lot more than your zeroes. PERFORMANCE AND RACE JOHNSON: I really like the next hypothetical situation because it gets to the issue of meritocracy. A fourth-year associate at a law firm is the only attorney of color and consistently receives crappy or uninspiring work. In my experience, most of the times it’s really been a person who’s overly sensitive who really didn’t have the ability to cut it in the first place. Can anybody help me understand how, just because somebody feels that they get a poor performance review and they happen to be a particular color or gender, that they can be able to tie that performance evaluation to their issue or to their plight or their race? HARATANI:: One of the issues that stands out for me is the fact that, apparently, this associate is the only attorney of color within the law firm. That says something to me right there. Why is it the case that there are no other associates of color within the law firm? If you assume that the associate is as bright and capable as his or her peers, why is it that this person is being targeted, so it seems, and given the work that is not going to allow him or her to shine? There’s something going on in the system that is precluding this associate from getting the legal challenges that are offered to his peers that would allow him to develop as a lawyer, to be motivated, to be stimulated about his job. You have to ask yourself the question, why is that not happening in this case? Is it because this person just happens to work for a partner or partners who have nothing to delegate but really uninspiring work? Or is it something different? JOHNSON: Well, first, we all know this would never happen at my firm. But if it did, can the people at this table help me understand the kinds of things that my firm can do to get to what may be the root cause of the problem? BARNES: I would say from both the perspective of the person hearing the evaluation and the person giving it that the evaluation, to be effective and beneficial to all concerned, needs to be specific as to what the performance issues may be. Give concrete examples of the performance issues. Something like, “Well, you don’t have fire in your belly” is meaningless to the recipient. They don’t know how to respond to that. While you may have a certain thing in mind, a concept, maybe even an incident, without sharing the more specific, concrete aspects, the associate receiving that information can’t do anything with it. I’d also ask that you evaluate your evaluation. Is there bias in your evaluation process and in your evaluation and your delivery of the evaluation? � particularly if you cannot come up with specific examples of a performance issue, and it’s more of a feeling that you have. Also, I would ask that you speak to the clients. How satisfied are the clients with the work? In my experience, that helps the client succeed; race and gender sort of evaporate in the process for the client. Be sure that you’re speaking to the client. If the lawyer is having a performance issue with the client because the lawyer is not presenting the work in a timely fashion, it’s not clearly written, or there are other specific issues, then you need to address those specific issues with the associates and work with them on a plan to improve. I mentioned earlier that when I’ve had performance issues before, sometimes people change and are able to deal with it, and sometimes they were not. When I identified performance issues to people and I was specific as to the performance issues, and sometimes it was simply a perception and how to deal with the perception, they were able to rectify those issues 95 percent of the time. But if you’re giving the associate work that is not meaningful and that’s all they’re receiving — and let’s face it, not everything that we touch in the practice of law is necessarily the most stimulating — then they’re not in an environment where they can thrive. They’re not going to be in an environment where they’re going to give you their best work because they’re tired and bored. You need to give them more challenges. PORTER: The bias leads you to see what you are predisposed to seeing. When a woman or a person of color comes into the firm, if it is your view that that person has to prove himself or herself to be competent, that’s different than a white person coming in and you’re presuming that person is competent. When you see the first assignment of the person that you presume to have been competent, it likely will be a successful assignment. If it is not, because of your presumption, you’ll go into that person and say, “This is less than I expected. You are capable of doing more than this.” JOHNSON: Does everyone at the table agree that there is some responsibility on the part of the woman or the attorney of color to take an assertive position about making sure they have the things that they want to succeed? PORTER: Given what we’ve heard from you today, we’d be damn fools not to assume responsibility for our own development and careers. That is always going to be the case, and you should not assume otherwise. But yes, that message has to be communicated, that we are responsible for ourselves. COMMUNICATION IS KEY JOHNSON: Let’s say I accept the fact that I have some bias, but that I’d still like to try and advise one of the minority associates in the office, who might be in need of some coaching. What can I say that will give that associate more confidence and encourage them to go ahead and say, “Can we look at this a little differently?” GONZALEZ: I would suggest that you … JOHNSON: You’d tell them to leave. GONZALEZ: Well, no. I would suggest that you go to the minority associates in your firm and say the following. Actually, I’d suggest that you do this with all of your associates, but I think it’s especially important with the minority associates shortly after they walk in the door. First, understand the big picture. Don’t just take a project, go to the library, do some research, write a memo, come back and give me the memo. The associate should understand what exactly is going on here. What are we trying to accomplish and how does my project fit into that? Two, be assertive. You should recommend to the associate, “Look, if you’ve got ideas, if you’ve got suggestions, I want to hear them.” One of the things that young associates, and especially, I think, associates of color, generally fear is talking, particularly in a meeting. The last thing you want to say is something stupid, right? That reinforces what everybody thought about you. You need to make sure that this associate is comfortable talking to you about ideas and suggestions that he or she has. And you need to tell the associate that that’s one of the things that makes you a successful lawyer. PORTER: You may be thinking, “Well, that’s exactly what I do all the time,” and I think that’s a point. That is exactly what you should do, and you should do it with everyone. You should not refrain from doing it when it’s a minority associate, or think that you were talking down by telling the person something that’s obvious. What is good for one associate is good for all, and I’m sure that in your world of meritocracy and color blindness, that’s the easiest advice you’ve been given today. HARATANI:: I also think that it’s really important to remember that it’s great to have conversations with associates, inviting them to talk about their concerns, their ideas, what their strategy would be on this litigation, the types of things that Arturo was just talking about. But then you also have to walk the walk. You cannot use the confidence that an associate entrusted in you in a way that’s going to hurt them. You cannot later, in some offhand joke, make fun of an idea that they threw out to you. In other words, you have to treat the communication that you’ve asked them to give you with respect. Just because they’ve gone ahead and made the big step to trust you, you want to act in a way that a person can act who is worthy of such trust. It’s one thing to go into the associate’s office and say, “I’m down the hall. Anytime you have a concern, please stop in. I’m willing to listen to you.” It’s another thing to actually feel that and to act in a consistent manner. You have to build a relationship with that associate and treat them with trust and respect so that they keep coming back to you. I tell you, you burn one associate, and that will go all through your firm like wildfire. You will then get the reputation that you say things, but that you don’t mean them, and that you’re a backstabber. You’ll find that all of a sudden, people will start walking by your door rather than walking in. JOHNSON: So, in a nutshell, all you people are saying that I’m the problem and you’re part of the solution. PORTER: We, indeed, are saying that you are part of the problem. Which points to something we should say to you, and we talked about it a little bit earlier. It’s about looking at lawyers, all of them, as individuals and recognizing that you may have the best of intentions, but just a poor personality match with someone else’s personality. That’s why it’s important to have more than one person supervising a new lawyer until a positive relationship can be established with some group or some group leader. Because inevitably, there will be persons with whom a minority associate, a white associate or anybody else will disagree. Those personality conflicts can be problems, and they don’t have to be race-based or gender-based or ethnicity-based. So it’s important to recognize, and to have a breadth of assignments so that the quality of the review mi

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