We talk to people working in and around the profession, to glean how far diversity efforts have come and where they are headed in the future...
THERE'S a clear consensus that diversity in the legal profession matters, but what exactly do we mean by the term? Charlotte Wager, partner at Jenner & Block, ruminates: “There are lots of different levels of diversity. It’s not a static concept – it changes over time.” At the moment, NALP collects statistical information in order to track the spread of women, ethnic minorities and LGBT individuals, but what about the much broader categories? How else can we categorize diversity? In terms of age, disability, religion, socio-economic status? The very act of trying to define diversity is part of the problem, and one that perhaps makes firms recoil from the quandary of who is considered, and whether to assign priority to certain groups over others.
It’s not just a semantic quandary, but a practical one too, as Lori Lorenzo, deputy director of the Leadership Council on Legal Diversity, states: “The problem is broad and includes issues related to pre-law advising, law school admissions, law school success, Bar passage, hiring, promotion and retention, just to name a few.”
Given the enormity of the task, it’s easy to see how so-called 'diversity fatigue' has set in among many in the industry. During NALP's 2013 conference, a range of speakers presented on the extent to which students and lawyers had become skeptical and weary of diversity initiatives and their impact. Some blame the global recession: while the intention to create diverse workforces is still there, the resources are not. Others report that students are becoming more skeptical, and posing increasingly probing questions to recruiting panels at OCIs: ‘Yes, you’ve got all of these initiatives, but what do you actually do? Are you just ticking boxes? Are you really serious about these commitments or is it just window dressing?’
Long is the way
“Nobody can say that it has been a smashing success. Just look at the numbers – they are often depressing, and private law firms continue to struggle,” comments Joshua Wayser, managing partner at Katten Muchin's Los Angeles office and cochair of the firm’s LGBT coalition.
According to the latest data published by NALP in December 2013, only very small gains have been registered since 2009. Female partners made up 19.21% of the partnership in 2009, while in 2013 the figure increased to just 20.22%. The data for minority partners reflects a similarly scant increase, from 6.05% to 7.10%. Worryingly, the percentage of women associates has dipped, from 45.66% to 44.79%. Jim Leipold, NALP's executive director, had this to say on the findings: “While the percentage of women partners, small as it is, has continued to grow each year, sustained incremental growth in the future is at risk if the percentage of women associates continues to inch downwards. This should be a red flag for everyone in legal education and the law firm world.”
NALP stats in recent years also suggest that women and minorities have had more success elsewhere, pursuing other options (such as clerkships, public interest work or academic positions) which perhaps put up less resistance than the path into BigLaw.
However, the term ‘inclusion’ is becoming something of a buzzword. Jason Gibson, a former president of The National LGBT Bar Association, tells us: “The idea of inclusion goes beyond the principle of ‘I have to have you on my team because you’re African American.’ It’s a broader conversation about how everyone can participate, and how teams can work better together – it’s about wanting everyone to be at their best. As a function of that you create a diverse environment.” Placing diversity within this much broader, more cohesive framework may help to tackle the issue at its very center.
In order to understand how the profession can improve in its stride for inclusiveness, the idea of implicit (or unconscious) bias has to come into play. Much of the conversation surrounding this idea has been stimulated by UCLA Law Professor Jerry Kang, who has given a series of presentations on the presence and impact of implicit bias in law. Kang’s research adds to a wide range of studies that reflect implicit bias, and Wayser describes one which demonstrated how “babies crawl away from the people that they look different from and crawl towards the people that look like them.” The conclusion is that implicit bias is so innate, so ingrained within our earliest nature, that we carry it with us and exercise its effects in the workplace. We don't necessarily recognize when we're favoring our own and excluding others.
Wayser identifies why implicit bias is such a problem in the legal profession: “Law is about trust – the trust that has to be built with your clients and colleagues in order to succeed." We find ourselves being "implicitly biased despite our best intentions," Wayser explains. "There seems to be a built-in and unrecognized hesitancy to trust people who are different to you. It can put minorities at a disadvantage.”
How can we make people consciously aware of unconscious bias? “Obviously we can’t over-engineer everything,” says Kristine McKinney, director of diversity and inclusion at Faegre Baker Daniels, “but there are simple things that we can do, and we often forget to do them.” These might include introducing techniques which allow everyone to speak during meetings; these techniques are especially relevant in an age of routine teleconferencing, in which people can quite easily be sidelined.
The process goes deeper than that though, and requires law firms to reconsider some of their most fundamental structures, and re-examine policies surrounding elements like compensation, origination credit and succession planning. Let's take a look at a common example: the use of a free market system. To many firms, the free market system makes business sense: young attorneys learn who they like working with and work with the same people habitually; the clients like the sense of continuity that comes from dealing with the same people; and a team is subsequently formed that is well educated about the client. From a business perspective, it’s a win-win situation. Charlotte Wager explains that “it can have a negative impact, too. Sometimes a free market system means that people end up forming smaller, informal groups often around particular clients or partners with business. If you are in such a group you reap the benefits. But for women and people of color, it can be hard to get in the group and then it might be harder to get access to quality work opportunities or enough work.”
Consequently, law firms are starting to think of ways to tweak their free market systems in order to broaden access to key teams, clients and cases. It’s not necessarily that the system itself is bad, just that it needs some fine tuning. As McKinney states, “a lot of the time firms will put a lot of work and energy into recruiting minority attorneys, but then they will unintentionally put them into offices out of the way. You have to think about the way in which work patterns occur.” This is why seemingly minor factors like a person's location in the office can have an enormous impact, and all it requires is that law firms pay closer attention to the areas of an office which are particularly active or ripe with opportunities, and then place someone who could potentially be marginalized closer to them.
Informal mentorship programs are another staple of law firm life, and form the backbone of many diversity initiatives. Do they work, though? Such mentorships do of course have their value, but there's a sense that a more formalized and robust relationship is needed. Wager tells us: “We know from research by the American Bar Association and others that the presence of a mentor has a huge impact on how women, particularly women of color, experience life in a large law firm. If a formal mentoring program exists, you can pair people across diversity and ensure that women, people of color and other underrepresented groups have access to mentors who are plugged in and good sources of work and information. In an informal mentoring system, where associates and partners select their own mentors, this might not happen. People have a tendency to gravitate toward people who they perceive as similar and this often means people who look alike. So straight, white men end up mentoring straight, white men. Some of that is obviously fine, but we all benefit when we have mentoring relationships that build relationships across differences including race, gender, sexual orientation. Especially those who are traditionally underrepresented in large firms.”
Paulette Brown, partner and chief diversity officer at Edwards Wildman, raises a key point: “If there is a formal mentoring program, arbitrary assignments should not be made. Mentors should volunteer to ensure a more effective mentoring program.”
For many, the logical conclusion of constructing a more formal program goes beyond just mentorship, and takes on the form of sponsorship. Such programs are becoming increasingly popular, and are designed to pair a mentee with someone who will actively advocate for their advancement. Jason Gibson says: “People are always willing to share their ideas, but what you need is someone who is willing to speak on your behalf. You can have all the talent in the world, but if no-one knows that, what use is it? You need someone to take a stake in your name and your work product, to vouch for you when you are not in the room, and to use their relationships and influence to create opportunities for you.”
Becoming one of them
Sometimes removing unintentional bias can come down to scrutinizing the language we use. Lori Lorenzo, who has delivered presentations on language training, tells us that just changing a word can help to foster a more inclusive environment. For example, using the word 'partner' (instead of 'husband' or 'wife') during a conversation can make it easier for LGBT individuals to feel included. Often people are afraid to initiate a conversation in case they use the 'incorrect' word and unintentionally create the impression of bias, but, as Lorenzo states, “it's okay to say it wrong or to use the wrong word, just correct yourself.” The fact that a conversation or a dialogue has been initiated is what’s important.
Minorities also have to consider what they can do to minimize the barriers. “For me, it's important to work at a firm where I can maintain my identity,” says Gibson, “but on some level you have to be willing to 'play the game' and fit into the culture of the firm.” Joshua Wayser adds: “You have to show that you are a lawyer that your clients can trust and see commonalities with. You have to reach out to people in order to build bridges, so that you’re not the ‘different person’. It’s like brand management. At the end of the day law firms are still largely controlled by those who are not minorities, so it comes down to how well you can deal with them, how much you know about how the system works and how the business world works. You’ve got to know the rules of engagement.” Formal and informal mentorships may help to get that process under way, but nonetheless an effort has to be made on the minority’s part as well.
This doesn’t mean that a minority attorney should hide aspects of themselves – like their sexuality – or downplay elements that are crucial to their sense of self and identity. As Wayser says, “you have to be yourself; you can’t hide because then people will also experience discomfort.” What it does mean is that minorities have to strike a balancing act between preserving the things that constitute their identity while at the same time reaching out, displaying the intuition and shrewdness required to tease out the commonalities they share with people from whom they are ostensibly different.
There's only so far a person can go to fit into a firm's culture; it’s crucial that minorities do their research on firms before settling on one for their career. For example, an LGBT law student would do well to scrutinize a firm’s policies and statistics (Do they offer domestic partner benefits or the gay gross-up?1 How well do they score on the HRC index for LGBT equality?). These are all indicators, but some firms will be supportive despite a below-average performance in the stats.
Some firms are adopting policies to help make particular life choices (like raising children) viable and sustainable. For example, some firms are now installing a new billing levels model, which, as McKinney describes, “provides more flexibility, so that instead of having class years, people can pace themselves and say ‘I’m a dad and I want to stay at this billing rate and salary for the time being'.” It's also important to try to ascertain how much policies are actually utilized by attorneys. This is especially relevant when it comes to flex-time and maternity/paternity policies: the firm may offer 16 weeks of paid maternity leave, but how many women take the firm up on the offer and make it culturally acceptable?
When it comes to creating a profession that is more ethnically inclusive, the challenges become far more complex, and can't just be addressed by a firm internally, but instead require far grander efforts to improve the demographics. This is hardly the platform for such a huge topic. However, one current project addressing this is all about pipeline programs into the legal profession. Their goal is to help minorities from underserved communities establish a continuous path: one which will get them through high school, college, law school and, finally, into a law firm. James O'Neal has established an organization, Legal Outreach, which aims to do just that.
It is right, then, that the drive should now be to address the root causes, rather than simply assuaging some of the symptoms. Developing such change relies on, as Charlotte Wager says, “open dialogue and discussion within firms so they can examine their own cultures and any unconscious bias that may exist. When it comes to tools and strategies for changing the status quo, there is no one-size-fits-all.” It doesn't necessarily matter if one idea isn't that successful, as Lori Lorenzo highlights: “It's about taking action, measuring results, and not being afraid to make a course correction when necessary.”
While the current NALP statistics don't exactly give cause for unbridled joy, the move toward a more cohesive and less problematic framework under the banner of inclusiveness, combined with a more informed grounding in sociological habits, has propelled people to get increasingly practical and inventive, indicating that a more inclusive industry may be on the horizon.