Diversity and the Legal Industry: A human resources conundrum

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By 2050, the U.S. population will be dominated by people of color. Some cities already register as mostly non-white. CEOs of some of the world?s leading companies and business organizations have taken note and in June committed to work together to advance diversity and inclusion in their respective workplaces. More than 270 CEOs have now signed on to CEO Action for Diversity & Inclusion?, pledging specific action ?to cultivate a trusting environment where all ideas are welcomed.?

Veteran diversity expert Douglas Freeman puts the U.S. population?s ethnic shifting into workplace context. ?We have gone from a majority Caucasian male structure, driven by Caucasian male power (entry to manager, to C-suite to Board level domination), to a new world of mixed power, where the CEO of a company may not be either Caucasian or male. The key issue is what are the ramifications to this aggressive power-shift disruption, and how will both Caucasian males and their new counterparts react to this demographic tsunami,? he wrote in his commentary on why Google ?blew? its handling of a software engineer?s internal memo blasting the firm?s diversity hiring program and touting genetic differences between male and female technologists.

?Last year, Black women made up only 0.5 percent of all partners in New York City law firms.?

? Paula T. Edgar, Esq., President, Metropolitan Black Bar Association, New York

Freeman is the founder of the World Diversity Leadership Summit that has trained more than 3,000 diversity and inclusion practitioners. While his commentary was elicited by a gender-stereotyping memo that went viral, it responds to the very human resource circumstance that prompted CEO action in June. Similar action in the legal industry would be welcome. Despite the American Bar Association?s declared goal to eliminate bias and enhance diversity, and the recommendations of the association?s Diversity and Inclusion 360 Commission to advance that goal, law remains a bastion of ?Caucasian male power,? perpetuating an environment in which Black attorneys in particular ? male and female alike ? often feel unwelcome.

?Diversity in the legal field should be something that allows for people of all races, gender, sexuality and religion to participate in and serve the justice system, whether as an advocate, a judge or any other legal capacity. We don?t see that,? says Derek Sells, managing partner at The Cochran Firm, one of the country?s largest Black-owned law firms. ?Obviously, there?s the dream ? what you would like to see, then there?s the reality. The percentage of individuals in the population that make up racial minorities does not equate with the number in the professions, and so you don?t have a true reflection of diversity in the law.?

Hiring
At the country?s large law firms, collectively called ?Big Law,? Black attorneys are most represented at associates level, the lowest rank in law-firm hierarchy. Here, racial minorities account for almost 22 percent of associates. However, the number of Blacks at this level has been dropping as the numbers for Asian and Hispanic associates grows. Asian associates now make up almost 11 percent of all associates, while Hispanics slightly outnumber Black associates at 4.28 percent.

At just 4.11 percent of all associates in 2016, Black representation remains below its 2009 level of 4.66.

Black women made up 2.32 percent of law firm associates in 2016, down from their 2008 peak at 2.97 percent, while Asian women made up 6.35 percent, up from 5.12 percent in 2009.

?Black women are consistently at the bottom of law firm diversity statistics,? affirms Paula T. Edgar, Esq., president of the Metropolitan Black Bar Association in New York and principal at PGE LLC, a speaking, career coaching and consulting firm. ?Last year, Black women made up only 0.5 percent of all partners in New York City law firms. This is one of the reasons why the MBBA established its inaugural ?Black Women Lawyers: Lessons in Leadership,? an event to provide a platform for reflection and an opportunity for connection for Black women lawyers.?

 

Just 7.5 percent of Big Law partners are minorities, up from 2.5 percent in 1993, and from 6.56 percent in 2011. Of that 7.5 percent, women account for 2.5 percent, and equity and non-equity partners account for 5.60 percent and 9.4 percent, respectively. Overall, Black attorneys made small gains in representation at major U.S. law firms in 2016 compared with 2015, according to the latest law firm demographic findings of the National Association for Law Placement (NALP). Those gains are of no great consequence, however, considering the general trend. ?Minority women and Black / African-American men and women continue to be the least well represented in law firms, at every level, and law firms must double down to make more dramatic headway among these groups most of all,? says NALP Executive Director James Leipold. ?And, while the relatively high levels of diversity among the summer associate classes is always encouraging, the fact that representation falls off so dramatically for associates, and then again for partners, underscores that retention and promotion remain the primary challenges that law firms face with respect to diversity.

Attrition, Black women, Economics
If current hiring and attrition trends continue, it is unlikely that Big Law will substantially increase the number of Black attorneys at every level, industry experts agree. Minority men and women represent less than 16 percent of all law firm attorneys, but they account for more than 20 percent of the lawyers who leave their firms, according to the Minority Corporate Counsel Association. Women of color, who represent just 7.87 percent of attorneys in law firms, account for 11.29 percent of attorney departures. An MCCA survey shows Black lawyers leave firms at a higher rate than other minority lawyers, with Black women leaving more frequently than Black men. ?They leave because the firm culture is not conducive to success for people of color or people of color who are women,? states Edgar.

According to the NALP, 15 percent of Black men and 17 percent of Black women left their law firms in 2015. Roughly 33 percent of first- and second-year lawyers who left their firms in that year were racial or ethnic minorities. The same year, minority lawyers represented more that a quarter of departures among midlevel associates (third- through fifth-years) and 24 percent of senior associates (those in their sixth-, seventh- or eighth-year). Meanwhile, nearly 14 percent of the 2,888 senior associates who left their firms in 2015 were women of color.

?There?s almost like a glass ceiling at Big Law firms. When African-American lawyers are not on that partnership track, they either leave the firm, are forced out, or they take positions that are sort of like a contract lawyer position as opposed to an equity stake,? says Sells of The Cochran Firm. ?Those African-American attorneys who are able to gain partner status are able to do so because they are able to bring in their own business, and oftentimes that is one of the main conditions for partnership at those kinds of firms. And so if an African-American attorney, however skilled, is not able to bring in business, that?s used as the reason why Big Law will not make them partners.?

Bill Proudman, a co-founder of diversity strategists White Men As Full Diversity Partners, sees the role economics plays in the lack of diversity at Big Law. ?It?s a really tough industry. In their economic model ? the kill-it-and-eat-it model in terms of billable hours ? there?s a real reluctance to do the work [of diversity, given] the time aspect that?s necessary for leaders to look at their assumptions and mindset. This is change work at a very personal level. They have been unwilling to give up billable hours time,? he explains.

The attrition rate is lower for Black women attorneys at corporations, says Laurie Robinson-Haden, Esq., who founded Corporate Counsel Women of Color in 2004 as a support network to in-house women attorneys of color and to promote the advancement of women of color in the legal profession and workplace. ?Our research and focus groups indicate that Black women stay longer in the corporate environment because they feel they have better access to clients and more of an opportunity to attain advancement and upward mobility within a corporation than at a major law firm,? she says. ?The trend of Black women leaving firms to work for corporations continues to increase because these women are looking to advance their careers. I also believe that there are more companies that make diversity and inclusion part of their culture, including some technology companies such as Google and Amazon, where many diverse attorneys have gone to work.?

Solutions
As long as law firms continue to use the same recruiting strategy, wherein they all look at the same schools and the same students, the numbers of Black attorneys will remain stagnant, Edgar warns. ?Where law firms are failing generally (there are exceptions) is in investment with the intention of reaching an inclusive environment, utilizing different strategies to reach different results.

“Recruiting at different schools, determining additional parameters and truly reflecting on desired outcomes is a necessary exercise to achieve an inclusive and diverse environment,” she says.

She outlines four additional steps to achieve that environment. First, firms must demonstrate their commitment from the top down and state that diversity and inclusion is a priority at every level. This means holding themselves accountable by regularly assessing the statistics and responding to any trends, gaps and vacancies reflected in their data. Second, commit firm resources to hiring a diversity director or chief diversity officer who reports to the managing partner. Third, support Black bar associations, partnering with them for recruiting and programming, and sponsoring initiatives to help build and sustain supportive institutions that drive inclusion and retention in law firms and other legal environments. Fourth, invest in your Black associates in a deliberate manner as soon as they enter the firm, including mentoring to help Black attorneys navigate the firm culture and avoid roadblocks; creating a career development plan to make sure skills and experiential benchmarks are met; and providing external career coaches for attorneys to help set and reach billable hour and business development goals.

Black college graduates face a tough job market in the law field

Sells wants firms to ?make a push? to get African-Americans and other racial minorities and women more involved in education at an earlier age, putting more resources toward keeping these diverse groups in school and furthering their education beyond high school and college to professional schools. ?With the hierarchy in law firms ? and you think about the more prestigious law firms that exist ? many of them date back to the 1800s and early 1900s to a time when there was racial prejudice and have gone from generation to generation, so that African-Americans and other racial minorities never even had an opportunity to be lawyers in these firms for the decades these firms existed,? he says.

Part of the training that needs to be done has to also include training on how to build relationships with big business, so that businesses that can afford to pay the rates of the big firms can be brought in as clients by African-American lawyers, Sells notes. ?There is a correlation between the smaller percentage of African-Americans in big business and the smaller number of African-Americans in the legal field that historically hasn?t allowed for the types of relationship that would allow African-American lawyers to bring in business from the outside,? he says.

Early in her tenure as the American Bar Association?s first woman of color and third Black president (2015-2017), Paulette Brown, Esq., created the Diversity & Inclusion 360 Commission to address the legal industry?s human resource conundrum. She is ?weary of discussing statistics that have not changed in decades and of wondering why strategies used have not caused our profession to be fully inclusive of everyone without regard to race, national origin, ethnicity, sex, religion, age, disability, sexual orientation, gender identity, gender expression, marital status, or socioeconomic status,? she stated as she introduced the commission?s report a year later.

Here was leadership that embodies strength, courage and action. Brown calls for nothing less from the captains of law. ?Please join me in?daring to act boldly, courageously and insistently to dismantle the barriers to diversity and inclusion. As great as our profession is, it is unacceptable for it to be the least diverse of all comparable professions,? she said.

Freeman notes that very few organizations recognize ?the absolute complexity of managing the warp-speed changing demographics of the U.S. workforce.?
He offers five recommendations:

1. Address what the new demographic world is, and what it means to the present and future of American business.
2. Explain what these demographic shifts mean to your industry: We are in a war for talent, which means that we have to tap into all pools of labor.
3. Explain why diversity and inclusion initiatives are all about leadership in the present and the future: Organizations need D&I to build cultures of inclusion, engagement and high performance.
4. Explain the empirical underpinnings of building cultures of inclusion, engagement and high performance: According to the Gallup organization, increases in employee engagement are statistically proven to drive business impact in employee productivity and retention, customer loyalty, profitability, and work safety. Increases in inclusion levels tend to increase levels of engagement.
5. Explain the core competencies of inclusive leadership and continuously skill-up leaders on a consistent basis: Core competency areas include understanding the fundamentals of an inclusive work environment and learning inclusive engagement and communication styles.

Demographic shifts at home and commercial opportunities in global markets of color, such as Africa, are compelling reasons for the country?s legal industry to be far more ethnically diverse. Some Big Law firms have long shown leadership in this regard, like Paul, Weiss, Rifkind, Wharton & Garrison LLP, the first New York firm to hire a Black associate. Too many, however, stand firm on the current status quo.