Nothing shows glacial progress more prominently than U.S. law firms’ efforts toward diversity in the profession. In the 21st century, law remains one of the worst industries for women, minorities, LGBT individuals and the disabled.
Across the board, the data is staggering. According to the National Association for Law Placement 2017 Report on Diversity in U.S. Law Firms, “women and minority partners remain fairly dramatically under-represented in U.S. law firms,” with women minorities being the “most dramatically underrepresented group” of all. Some metrics predict that the industry will not see gender parity until 2081, as Roberta Liebenberg told the ABA Journal last October.
U.S. law firms’ failure thus far to adopt meaningful diversity is particularly disturbing given that studies have demonstrated that diversity improves the intellectual process and outcomes. Diversity inspires innovation and creativity and leads to better decision-making. In other words, diversity among legal teams could mean the difference between winning or losing in a bet-the-company matter.
Recognizing both a lack of diversity in the industry and a desire to win, corporate general counsel have made efforts to mitigate the disparity by putting pressure on law firms to create more inclusive and diverse teams to work on their legal matters. These efforts began in earnest in the early 2000s when Sara Lee Corp.’s Rick Palmore led the way first with a “Call to Action” and then with the Leadership Council on Legal Diversity. Founded in 2009, LCLD comprises 285 general counsel and managing partners championing diversity and inclusion, describing its members as “united by a spirit of activism and personal commitment … leading by example, taking action, and challenging the legal profession to prepare future generations of diverse talent for the highest positions of leadership.”
Given the tremendous power held by corporate leadership, it is not surprising that law firms have taken notice and responded by stepping up diversity efforts (or at least making it appear that way). Am Law 100 firms devote entire webpages to diversity. These firms boast accolades from women-friendly magazines and tout their involvement in diversity initiatives. They send diverse teams to pitches for new business and interviews at prestigious law firms. They display photographs of minority and women attorneys on their websites and marketing materials.
Yet when you look at the numbers, progress over the last decade has been “marginal at best,” according to NALP. Specifically, from 2009 to 2017, representation of Asian partners increased slightly from 2.2 percent to 3.31 percent; Latino partners saw less of an increase, from 1.65 to 2.4 percent; and black partners saw an increase by the lowest margin, from 1.71 to 1.83 percent. Of those groups, only 2.9 percent are women. Meanwhile over 90 percent of partners are white and about 80 percent are men, according to NALP.
Additionally, while the number of minority summer associates has increased overall since 2009, the number of minority associates fell. Representation of women attorneys has seen a net decrease in the last 10 years. Attorneys with disabilities (0.43 percent) and those identifying as LGBT (2 percent) remain “scarce at both the associate and partner levels.”
This data requires us to ask ourselves why law firms are struggling to change a culture that favors white male attorneys and what firms and clients can do to fix it.
Diversity in Name Only
Diversity is difficult to talk about and not often a conscious topic in our day-to-day interactions. Men see or work with women partners and assume that the numerical disparity at the top is on the path to being fixed. Law firm partners see diverse first-years or summer associates and conclude that their firm is making enough strides. Few recognize their own unconscious tendencies to select, mentor and promote people who remind them of themselves which, if not checked, can be devastating for diversity initiatives.
Rosabeth Moss Kanter coined the term “homosocial reproduction” to describe humans’ natural tendency to gravitate toward people like themselves. This phenomenon, also known as implicit bias, impacts recruiting, hiring, mentoring, allocating assignments or opportunities, creating legal teams, articulating competencies and promotional expectations, and attorney reviews.
Implicit bias offers an explanation for why the same law firms that attract diverse talent at the outset are failing to retain it. As a point of reference, the attrition rate for minority associates is approximately 75 percent, while the attrition rate for female associates is more than 50 percent, according to NALP. As inclusion strategist Verna Myers put it, “diversity is being invited to the party; inclusion is being asked to dance.” When white men dominate leadership positions in law firms, implicit bias can perpetuate a lack of diversity and inclusion at all levels of the law firm hierarchy. Even if law firms are excelling at inviting diverse attorneys to the party, they aren’t asking them to dance.
This commitment to diversity in name only is superficial. Law firms must also commit to inclusion at all levels and make fundamental changes to their business models. Until that is accomplished, a diversity initiative will be little more than lip service and national gains will continue to be measured by fractions of percentage points.
A true commitment to diversity will require firms to implement strategic plans that include broader and more targeted recruiting efforts, address implicit biases and aim to appoint diverse attorneys to firm leadership positions. Likewise, clients should continue to improve diversity efforts by holding law firms accountable both for creating diverse work teams and for making sure that diverse attorneys are getting source credit and being promoted to management positions within the firm.
Identify Implicit Bias and Correct It
Understanding our biases and implementing strategies and programs to override them is the best way to do more than simply invite diverse attorneys to the party.
Law firms should educate attorneys to be aware of implicit biases, understand how they work, and evaluate where those biases might impact leadership and decision-making. Effective training will focus on helping individual attorneys recognize their own biases and how these automatic mental processes impact their behaviors.
In addition to training, we suggest that law firms support and facilitate internal discussion about implicit bias and ways to confront it. Simply put, awareness begets identification. The more that people identify implicit biases, the more those biases will be readily addressed and prudently overcome.
Finally, law firms should implement concrete policies to address implicit bias, such as creating a mentoring program for diverse attorneys or establishing diversity committees to address the specific concerns that diverse attorneys face in their day-to-day professional lives.
Improve Recruiting and Promotion Efforts
To increase diversity at the entry level, law firms should look to broaden the scope of their talent search beyond the on-campus interview programs at Top 10 law schools. Minority, women, LGBT and disabled student bar associations, law school affinity groups, law school chapters of organizations that promote education and awareness of under-represented people, as well as minority job fairs, are all valuable resources for discovering diverse talent. These non-traditional outreach efforts will also ensure that diverse students feel welcomed, and therefore will be more likely to interview with law firms.
Law firms must also recognize that just as implicit biases pervade law firm culture, they also impact educational institutions. Accordingly, law firms should take a holistic approach to evaluating candidates, focusing less on traditional metrics like test scores or grade point averages as the basis for accepting or rejecting an applicant.
Likewise, law firms should take a close look at their promotion criteria to see if such criteria include implicit bias. For example, when an attorney’s book of business carries more weight than other categories considered for advancement, women will be left out at a rate disproportionate to their male counterparts. Studies show that male clients show a clear gender bias for men as their outside counsel. This bias is compounded by the fact that four out of five senior in-house counsel are male. To the contrary, promotional criteria that place emphasis on other factors, such as quality of work, relationships with clients and other lawyers, ability to manage a case and a team effectively, firm citizenship, speaking engagements, publications, and community involvement will tend to level the playing field rather than perpetuating bias.
Finally, law firms should create hiring and advancement committees that include a meaningful number of attorneys from under-represented groups. Diverse committees that have the authority to make hiring and promotion decisions will be a powerful resource in recruiting, selecting, retaining and promoting a diverse workforce.
Implement the Mansfield Rule
A spin on the National Football League’s Rooney Rule, the Mansfield Rule is named after Arabella Mansfield, the first woman admitted to practice law in the United States. The Mansfield Rule has evolved over time but now means that firms that have agreed to adopt the rule will actively consider diverse candidates for at least 30 percent of open leadership and governance roles. In other words, for a slate of 10 potential hires, three need to be diverse.
The Mansfield Rule is focused on leadership and governance roles that include managing partner, chairperson, practice group leader, office head, compensation committee, executive committee and equity partner. That focus is understandable given the exodus of women and diverse attorneys in the first 10 years of practice.
The Diversity Lab, a think tank dedicated to advancing diversity in law through data, innovation and action, has partnered with 44 law firms to implement the Mansfield Rule. We encourage other firms to join the ranks.
Renewing the Call to Action
Rick Palmore’s Call to Action and later efforts with LCLD have had an obvious impact as law firms have shifted their perspectives on diversity and inclusion. The topic of diversity—at least in name—has infiltrated law firm culture. This is an encouraging step in the right direction, but more must be done.
Corporate general counsel now need to move the needle even further by renewing this call to action to ensure that firms are implementing strategic plans that target, promote, retain and focus on inclusion of diverse attorneys. General counsel can do this by requiring outside counsel to provide the company with multidimensional data about the makeup of attorneys working on their matters, such as by looking at the number of timekeepers, dollars spent, seniority and distribution by gender, ethnicity, sexual orientation and disability. This data can capture the percentage of work being handled by diverse attorneys and also help determine whether there are retention or advancement issues for diverse or women lawyers. Likewise, general counsel ought to request data about diversity in leadership positions within the law firms they work with.
Clients may also consider implementing their own version of the Mansfield Rule by mandating that law firms staff matters with at least 30 percent diverse attorneys and by ensuring that diverse attorneys are receiving an adequate share of source credit for their work.
In addition, clients may consider rewarding firms that meet or exceed their diversity expectations by providing bonuses or expanding the business relationship. On the other hand, clients may consider withholding a percentage of legal fees commensurate with the firm’s failure to meet diversity mandates as set forth in engagement agreements.
Finally, clients can provide direct channels of communication between diverse outside counsel and in-house counsel to afford diverse attorneys with the opportunity to develop relationships that may turn into more business and thus advancement, while also ensuring they are fully utilized by the client.
The views expressed here are personal to the authors and do not represent the opinions of their employers.
Board Members: Aaron Swerdlow, Alex Tarnow, Andrea Guzman, Andrew Warner, Anusia Gillespie, Aydin Bonabi, Bess Hinson, Blair Kaminsky, Brianna Howard, Brooke Anthony, Emily Stedman, Emma Walsh, Garrett Ordower, Geoffrey Young, Heather Souder Choi, Holly Dolejsi, Jennifer Yashar, Jessica Tuchinsky, Ji Hye You, Josh Sussberg, Kevin Morse, Kyle Sheahen, Lauren Doyle, Martina Tyreus Hufnal, Mauricio Espana, Nicole Gutierrez, Peter Buckley, Quynh Vu, Rakesh Kilaru, Reggie Schafer, Sakina Rasheed Foster, Sara Harris, Shishene Jing, Tamara Bruno, Tim Fitzmaurice, Timothy Perla, Todd Koretzky, Travis Lenkner, Trisha Rich and Wyley Proctor.