As a general rule, attorneys are good talkers. We argue, chit-chat, joke, pontificate, try to persuade or seek to justify a position as rational. This attribute is evident in litigation, negotiation and counseling. Dialogue is what we do.
I count myself in that group, and yet, as I have been reflecting on my 20-plus years in practice and my 15 years as an in-house lawyer, there is one topic I cannot recall discussing between in-house and outside counsel. The unspoken topic is not one of the usual social taboos, but rather, it’s … diversity.
Diversity is “discussed” in conferences, it’s “discussed” in firm literature and “discussed” in answers to big-matter RFPs, it’s “discussed” internally within firms and companies when hiring and promotion decisions are made, but I cannot recall ever having a normal conversation between in-house and outside counsel in which the topic was raised, addressed and explored — truly discussed.
I am sure there are many other counsel more enlightened than me who have taken the initiative or interacted with someone else regarding diversity in the context of a usual legal matter. However, my experience is not so narrow as to make me believe that my perception is a rare exception. Further, even if diversity is being discussed occasionally between inside and outside counsel, it certainly does not figure prominently as part of the ordinary back-and-forth in most retention relationships.
As I reflect on this, I hold myself responsible for not having taken the initiative in the past, but I also ponder why I and the many lawyers with whom I have worked over the years never broached the issue. Our conversations have focused on legal merits and strategy, budgets and fees. Staffing is discussed in the initial stages of a matter, yet no firm has ever made a point of explaining how diversity is important or benefits the representation.
Diverse attorneys — broadly defined by the Philadelphia Diversity Law Group as being those attorneys generally underrepresented in the profession because of racial, ethnic or socio-economic background, or sexual orientation — have been regularly identified and assigned to matters, but in being so selected, they were discussed as suitable for a particular matter for reasons such as experience, education and specialized knowledge. The discussions have not addressed diversity as an additional consideration. In long-standing matters, the annual tussle over proposed rate increases and staffing changes as a result of associate or partner departures would have offered perfect opportunities for someone to talk about diversity, and yet the conversations never took place. Why?
People talk about things that are important to them: kids, hobbies, sports teams, prices, profits, winning cases, closing deals. They do not reserve discussion of those important subjects to dedicated conferences or their own internal teams; rather, views are shared freely. In my company, we have initiated an affirmative effort to talk about safety and start every meeting with a “safety share.” Extensive research on behavioral attitudes toward safety confirms that regularly discussing safety creates a safer environment.
The same should apply with diversity. Of course, we lawyers do talk about diversity: At conferences and in publications, many lawyers have expressed the need to foster and improve diversity, and statistics have been gathered showing that some progress has been made, but not enough. Those communications, however, have come in the context of talking about diversity in isolation. Failure to discuss diversity regularly in ordinary communications certainly weakens, if not belies, otherwise-stated commitments on the issue. If lawyers are serious about increasing diversity, we need to start talking about diversity in an integrated manner in everyday practice, starting with conversations between in-house and outside counsel.
There must be something holding many of us back from engaging in actual, regular verbal dialogue about diversity. Is there a perception inside firms that companies do not want to hear about diversity, and that we are only focused on results and cost control? Yes, in-house counsel are focused on good results and cost control, and selection of counsel will undoubtedly focus on experience and capabilities, but we are also concerned with broader issues, including diversity.
As was ably articulated by Sherry Lowe Johnson in last month’s column in The Legal Intelligencer, Corporate America takes diversity seriously and the in-house bar has led the profession in becoming more diverse, particularly with respect to women lawyers taking senior leadership positions in corporate law departments. Many businesses, large and small, have come to recognize the value of a diverse workforce and affirmatively engage in processes to increase diversity.
The value of diverse staff increases in importance for multinational businesses with colleagues, suppliers and customers located all around the world. The perspectives and insights of people with many backgrounds do lead to improved business decision-making and performance. Therefore, most in-house counsel would welcome a chance to discuss with outside counsel the values that diverse representation brings as well as the broader question of how improved diversity is in the best interests of the legal profession.
I will not place the burden of silence on this topic solely on outside counsel, and without speaking for anyone else, I have asked myself — as an in-house counsel — why I did not initiate the dialogue. I found myself answering that diversity of outside counsel is not something in which I should get involved. In other words, it’s the firm’s job, not mine.
I am not happy with that answer, and so I have a belated 2012 resolution that I encourage others, both inside and outside counsel, to consider: Let’s talk with each other, between in-house and outside counsel, about diversity — at the firm in general and on staffing of specific matters. In-house counsel should be open to sharing the company’s views on diversity and outside counsel should do likewise — both should talk about what they are doing to increase diversity within their organizations and how it is relevant (or not) to a particular matter.
The first conversation may be awkward, but once the ice is broken, diversity hopefully can become part of the normal flow of the regular, ongoing communications in the relationship — like fees and performance. Once it reaches that stage, both in-house and outside counsel will know diversity is important, and that, in turn, may lead to longer term changes in our profession.
Is diversity important to our profession? If so, pick up the phone and call the client or outside counsel, and talk about it.
Michael Reilly is assistant general counsel of FMC Corp.