Big Law’s Relentless Diversity Problem—What Firms Need to Do Now

Why is it so difficult for large law firms to attract, retain, and advance non-white attorneys, even as law schools continue to enroll record numbers of minority students? Year after year, law firm diversity rankings continue to show that little progress is being made, despite the increasing popularity of diversity trainings, mentorship programs, and other seemingly well-intentioned efforts. What are firms doing wrong? And more importantly, what should they be doing? This month’s roundtable discussion brings together a diverse group of attorneys to address these critical questions.

Moderator

Nicholas Gaffney (NG) – Nick is founder of Zumado Public Relations in San Francisco, CA and is a member of the Law Practice Today Editorial Board. Contact him at ngaffney@zumado.com or on Twitter @nickgaffney.

Our Panelists

NG: Minority law school enrollment is at an all-time high, yet the percentage of minority lawyers and partners in large law firms remains low. What is a possible explanation for this?

DH: Sometimes the diverse attributes that minority candidates bring to the table are not appreciated for the strengths that they are. Diversity of knowledge, thought, experience, and problem-solving abilities, to name a few, only lead to better solutions, arrived at more quickly. Yet when it comes to hiring, these characteristics are often overlooked or viewed negatively. In some cases, a lot of talented, diverse candidates don’t get the opportunities that they deserve because they aren’t the right “fit,” which is a term that I’ve heard used at some firms and which I deplore. Whenever I’ve heard this term used in the past, it was always in reference to a diverse candidate. If a firm is truly looking to improve low numbers of minority lawyers and partners, one important step is to ensure that everyone involved in the recruiting process—on-campus interviewers, recruiting committees, law firm recruitment departments, etc.—understands that it is diversity of talent, not “fit,” that leads to more capable legal teams and work product.

RW: So many things have to go right to build a great a career and advance at a firm: landing in the right environment where you can feel part of the team and focus on your work; getting on the right assignments and getting access to good clients; getting strong mentors who will advocate for you when you are not in the room and expose you to clients; having some transparency around what is needed to advance and make partner and effective business development support. Overall, while there are exceptions, the urgency to do better isn’t there, because firms are still making money without making meaningful changes to promote diversity. When, as is happening more and more, the clients don’t just ask questions but demand diverse lawyers and actually start moving work to other firms, there will be more of a course correction.

BK: Large law firms still seem to be focusing their recruiting efforts on a handful of highly selective law schools. Some studies suggest that while the percentage of minority students attending law school is increasing, those same increases are not being seen at these particular law schools. In addition, it will probably take a few years for the changes in law school populations to begin to be reflected in large firm partnership numbers.

NG: What advice do you have for minorities entering law school and also for the next wave of graduates? 

MB: Relationships matter. In addition to getting top grades, make sure to invest time in relationships. Many young lawyers forget that their law school classmates are a ready network of friends who could be great referral sources going forward. I would also encourage students to learn about affinity bar organizations and think of these organizations as more than just bullet points on a resume. Affinity bar associations such as the South Asian Bar Association and the Asian American Bar Association/National Asian Pacific Bar Association, offer unique opportunities to begin building relationships with practitioners and senior attorneys who are genuinely invested in the advancement and promotion of minority attorneys. Succeeding at a law firm requires legal excellence but also reflects years of relationship building.

RW: Know exactly what you are signing up for—talk to practicing lawyers in different practice areas and work settings. Don’t be shy about asking what sound to you like dumb questions—the answers could change the course of your career. Know the business of law—what makes certain firms and lawyers more successful than others.

NG: What do you think firms that have a substantial number of minority attorneys and lawyers are doing right?

DH: I don’t think there are many law firms, particularly major law firms, that don’t have room for improvement. However, firms that have had success in the recruitment, retention, and promotion of diverse attorneys are usually the ones that encourage an open and honest dialogue about the inclusion and promotion of women and diverse attorneys. That’s one aspect that I enjoy about my firm. You can’t address a problem if you don’t have open, candid discussion about it. Firms that genuinely and openly recognize diversity issues, promote dialogue about these issues, and take appropriate action are in the best position to make improvements. Working towards a diverse work force is not about being benevolent. Rather, it’s about addressing deep-seated problems in the legal industry and doing what ought to be done. It’s not something extra; it’s something essential. Continuously addressing diversity issues must be a part of law firm culture, which must be embraced by the entire firm, not just law firm diversity professionals. Everyone must do their part.

RW: They are creating environments where minorities can see a path to succeeding and advancing at the firm, so attorneys stay there. Some firms that are seeing recent success have adopted variations of the Mansfield Rule, which has received a lot of publicity, and have become more proactive and committed in their hiring practices. The best firms are making diversity a firm-wide, executive-driven priority, setting aggressive goals and holding themselves accountable. Some firms are being creative with their support for minority attorneys, for example, by connecting them with clients or building enhanced mentorship programs that train and monitor mentors.

BK: I believe that firms with substantial numbers of minority and female attorneys are proactive about both recruiting and retention. On the recruiting side, this might include expanding recruitment efforts to include regional career fairs, more law schools, and schools outside the local geographical area. Because recruiting does little good if you can’t retain diverse attorneys, I also believe that successful firms must also be proactive about providing meaningful mentorship, support, and training early in a lawyer’s career.

NG: As a partner, what do you see as the biggest challenges to bringing more minority attorneys on board and seeing them through to partner?

DH: One of the biggest challenges that I see to bringing more women and minority attorneys on board in law firms and cultivating their careers through to partnership is finding enough law firm partners to mentor, sponsor, and champion their careers all the way through. The path to success at a law firm is not very apparent. It takes more than just being a good attorney. Yet in many firms, women and minority attorneys are often left to find this path on their own. Some firms believe that the practice of assigning women and minority attorneys a partner mentor adequately addresses the problem. But these relationships often don’t work out, and even when they do, they don’t always last very long. While assigning such a mentor can be helpful in some cases, a very effective way to retain and promote talented women and minority attorneys is to ensure that each of these attorneys gets sponsorship at management level and practice group level by partners who will be accountable for their success. This accountability means that specific partners at the firm management and practice group levels take on the responsibility for ensuring that women and minorities get fair opportunities to thrive throughout each phase of their careers. This accountability should last all the way through to partnership.

BK: Creating and maintaining a community that provides minorities with compelling reasons to join and stay in private practice is one of law firms’ biggest challenges. While “fitting in” can be an issue for any attorney, many minority attorneys continue to face challenges in feeling welcome and an integral part of a less diverse firm. New minority attorneys need to feel valued and useful from the very beginning of their tenure at a firm, and this feeling must be sustained, particularly through the first three years of practice, which are typically the most difficult. Such a community requires transparency as to firm policies, management, goals, and advancement criteria; strong leadership to ensure such transparency is maintained; an abundance of opportunities for new attorneys to engage with a variety of partners on meaningful projects; and patient training to ensure the best chances of success. While a number of firms have programs to promote some of the foregoing in the first year of practice, some of the momentum is lost as associates move up the ranks. More senior minority associates should be offered and encouraged to partake in more business development and management activities directly by more senior partners who are considered by others within the firm to be firm leaders. By making sure that minority attorneys have opportunities and the support to shine, firms can further promulgate the sense of community that compels those attorneys to stay.

NG: Although issues around race have become front and center in the U.S. in recent years and notably, months, talking candidly about race is very difficult for many people to do, particularly in the workplace. Do you think this is a problem at law firms? Do you think law firms are making any strides in fostering important dialogue that could lead to environments that are more inclusive, and welcoming, of minorities?

DH: In many work environments, candid discussions about race are often avoided because they make people feel uncomfortable. This is particularly the case at law firms, which are typically risk-averse. Further, non-diverse attorneys sometimes don’t like to initiate discussions about race because they don’t want others to think that race plays a factor or is a consideration in any of their decisions or actions. Diverse attorneys avoid raising candid discussions about race because when they do, people sometimes get the impression that they are complaining rather than just opening up dialogue. This makes it difficult to get important discussions out in the open. Nonetheless, to foster an environment that is more inclusive and welcoming to minorities, these discussions must take place. More is needed than just an annual or bi-annual training on diversity, as some firms offer. These discussions need to be open, honest and frequent. If people can’t discuss the inclusion, development and promotion of women and minority attorneys, then they very well can’t make necessary changes.

MB: We can all agree that having open conversations about diversity is important. How to talk about diversity is a universal issue for all corporate environments, including law firms. In the last few years, I have seen a marked difference in the programs and initiatives offered by law firms that indicate they recognize and are proactively trying to deal with this problem. For example, at Winston & Strawn we are instituting a series of internal programs to encourage candid dialogue around diversity and inclusion topics among all employees. Additionally, many law firms, including Winston, are offering unconscious bias training, which includes taking the Harvard implicit association test to identify these biases. Only once we identify our own biases can we have that honest dialogue and work together to move past them.

RW: It was always a problem but the intensity has been turned up. One of the real impediments to change at law firms is the culture of silence and indirectness: uncomfortable conversations are not welcome in the workplace, which means that 1) they are handled badly when they are forced to occur; 2) attorneys of color can feel alienated and silenced; and 3) meanwhile attorneys hold onto inaccurate and uninformed views on race and culture and/or commit micro-aggressions of various types, such a micro-insults and invalidations, because they don’t have a forum where they can be informed on the effect they are having in a way that is constructive and team-oriented but actually addresses the issues and behaviors rather than sidestepping them. After the November elections, at least a few firms did something great by having town hall meetings with attorneys and staff to let people talk about how they felt. Doing implicit bias training is a helpful tool only if it is combined with having actual conversations about differences and firms get top leadership in the room.

BK: An important goal of diversity at any law firm is to make that environment more inclusive and welcoming to minorities. If “talking candidly” means saying things that are divisive or make people uncomfortable, then no, having fewer of those discussions is not a problem. We do need, however, dialogue that fosters more understanding of other cultures and groups. So candid discussions that educate attorneys about the particular challenges facing LGBTQ attorneys, or what it means to be a practicing Muslim in a large firm, for example, are precisely the types of discussions that are needed in today’s large firms. And no, I don’t think enough of this dialogue is happening at law firms today.

NG: Some companies set diversity requirements for outside counsel. For instance, Facebook’s legal department requires that women and ethnic minorities account for at least 33% of outside counsel. What is your view of this kind of policy, and the impact it could have on law firm recruiting?

MB: Companies should absolutely have robust diversity requirements and should enforce them. Encouraging diversity and inclusion is of course the right thing to do, but it is also the economically beneficial thing to do. Law firms are businesses and clients have the economic power to drive change—use it. These policies should focus on measures of diversity that ensure law firms are providing minority attorneys with meaningful opportunities. The firms that genuinely answer that call not only demonstrate that they are aligned with their clients’ values, but also that they recognize the universal economic and cultural benefits of having a diverse workplace. Furthermore, firms that build a reputation for fostering diversity and advancing minority attorneys will ultimately attract and retain the best talent because it’s clear that these firms value and utilize the different skills, background, experiences that come with a diverse workforce. And it is not just a benefit to law firms; clients also benefit by having highly qualified and diverse teams that provide the creativity and innovation needed to secure the best results.

RW: Kudos to Facebook Legal, and to other legal departments that have stepped up on mandating diversity in their outside counsel—we need more legal departments to do this. Kudos also to companies that are implementing creative proactive programs such as pressing for diverse lawyers as relationship managers, amending origination credit systems that adversely impact women and diverse lawyers, and implementing internships and secondment programs and mentoring minority attorneys at their outside firms. CMCP has been in the middle of a growing group of legal departments including Facebook that are working together on diversity initiatives, and the energy and commitment of in-house lawyers is inspiring. Legal departments have the opportunity to re-make how law firms address diversity.

BK: Diversity requirements for outside counsel already have motivated firms to consider diversity in their recruiting efforts. While this is a step in the right direction, it is not enough. In my experience, many clients have a set diversity requirement, but few provide feedback to firms after firms provide the requested data. We typically do not know how or by whom the data is being consumed, reviewed, or used, and whether the client views our firm’s diversity as a driver in work being awarded to our firm. In a few instances, the client provides an “award” to outside counsel to recognize that counsel’s efforts. However, as outside counsel, we rarely know the criteria upon which the award is given, or what other firms may be doing to improve in this area. The latter is particularly useful information that should be shared so that we can all learn from it and use it as inspiration in our own firms.

NG: Do you find anything frustrating, upsetting, or simply inaccurate about the way the legal or other media covers the issue of minority representation in the legal industry? Are there any repeated themes/narratives you think are in need of casting aside, or updating?

MB: This is not necessarily an issue of frustration, but I would like to see more of a focus on pipeline issues. There is a great deal of focus on the advancement of current legal professionals, and rightfully so. But it’s equally important to spotlight how we as a legal community can increase opportunities for prospective minority attorneys to get into and succeed at the best schools and programs. This starts well before law school, even before high school. My suggestion is not to change the narrative, but to also focus on building pathways for future generations of minority attorneys.

RW: I sigh every time I read an article on a minority attorney and see how much focus is given to what I call their “Up from Slavery” story—paying more attention to a background of overcoming poverty or crime or victimhood, rather than talking about their heroism overcoming everyday obstacles of bias, micro-aggressions and resistance to change at work. These are less comfortable for readers to think about, but contain equally important lessons. In addition, reporting could be more probing and go below the surface—such as asking whether beyond giving a great speech about their commitment to diversity, is a GC actually sending work to minority lawyers? Beyond measuring how its outside counsel are doing on diversity, how is the legal department doing on its own workforce diversity? After studies like the Nextions “In Black and White” showing the bias in reviewing attorneys’ work, what are firms doing to build fair and accurate review systems? I struggle with the number of different diversity awards that get publicized, even though CMCP also gives annual awards. Diversity awards and rankings of law firms and legal departments cut both ways. It’s great to celebrate success as a way to inspire others. One of my allies and confidantes, a partner at a law firm, said: “I wish we didn’t get these diversity awards because it just destroys any incentive to actually do something meaningful.” Most awards are richly deserved and we should recognize the hard work of diversity champions. But awards should be based on good meaningful criteria and nominees carefully vetted. Firms and legal departments that have more access to public relations or marketing staff shouldn’t have an advantage in getting awards. Finally, I would love to see more attention to and detail about sharing best practices and case studies on diversifying the legal field. One emphasis I’m making for CMCP’s diversity award for law firms is highlighting the activities of both the winner and the finalists that other firms could emulate.

BK: This question sounds like an opportunity for law firms to list all the excuses why they may not be achieving their diversity goals. But to the contrary, I think the legal media should continue to hold our feet to the fire on the issue of minority representation. In the areas where law firms are not doing well, or at least could do better, media reporting will help prompt action. Rankings and statistics help law firms put things into perspective and mobilize where they need change.​