The lack of diversity in the American Lawyer 200 law firms has been a troubling issue receiving quite a bit of attention this year. The “leaky pipeline” of fewer women staying in law firms from associate, to partner, to equity partner has resulted in a number of firms signing on with OnRamp Fellowship to partner for one-year fellowships for women returning after at least a two-year absence, providing them training, mentoring, etc. Sadly, none of this is new attention — the industry has been talking about trying to increase female and minority participation in large law firms for many years.
As we see isolated instances of women succeeding in becoming equity partners and even moving into leadership roles (note that as of 2014, only seven women had ascended to a chairmanship or similar powerful firm-wide position in the AmLaw 100), overall the statistics on female participation in large law firms over the past 10 years really haven’t improved much. Salaries for female attorneys have lagged behind male attorneys too — as recently as 2014, Bureau of Labor Statistics showed that female attorneys earned just 83% of male attorneys’ salaries. But if women and African-Americans aren’t seeing widespread and significant gains despite all this attention, how are the minority groups we’re not talking about faring?
Expanding the Definition of Diversity
Minority groups that don’t typically get much attention in discussions of diversity in the legal profession were the focus of a diversity symposium held last November by the Institute for Inclusion in the Legal Profession (IILP). However, while many voices at the symposium called for expansion and a broadening of the definition of “diversity” to include veterans, Latino attorneys, disabled attorneys, LGBT attorneys, non-native English speaking attorneys, and more, there was another interesting perspective from attorneys we more typically think of when we consider the term diversity.
Two African-American partners warned that broadening the definition of diversity to include other groups was having an unintended negative consequence on the rates of employment and ascension to leadership positions by African American attorneys — firms may be thinking of diversity as a catch-all box that can be filled by any one diverse candidate, with African Americans squeezed out of large law. E. Macey Russell, a Choate Hall & Stewart partner, recently wrote about the decline in African American equity partners in law firms today, despite higher law school enrollment levels of African Americans than in 2008. Russell argues in his paper, and at the IILP diversity seminar on Veterans’ Day, that expanding the definition of diversity has resulted in in-house counsel simply checking a “diversity box” when hiring outside counsel, resulting in African American attorneys often having a harder time developing business, becoming partners or sustaining their practices.
While the point was made with African-American attorneys, the same dynamic could be said of women attorneys if the expansive definition of diversity resulted in, conversely, more narrow consideration of diverse candidates.
Are Corporations Holding Law Firms Accountable?
Corporations have made great strides to hold law firms to both hiring and providing meaningful work to diverse candidates, but Sharla Toller, has written and commented upon how more than 10 years after the Call to Action: Diversity in the Legal Profession, corporations talk about changing their relationships with major law firms that make “good-faith efforts” towards diversity but have not truly changed other issues that studies show may affect the retention of women and minority attorneys, such as bias in associate evaluations, subjective distribution of work assignments, and exclusion from business development and networking opportunities. Indeed, IILP’s own 2011 report, Making the Business Case for Diversity, disclosed that only 12.5% of 52 Fortune 500 companies surveyed had made any changes to their relationship with law firms that scored poorly on the corporations’ desired diversity metrics.
Indeed, Richard Meade, vice president and chief legal officer of Prudential Financial, has discussed how the company currently requests their outside counsel to include in their e-billing system demographic information on race, gender, sexual orientation or physical disability on each attorney/staff included in each bill, and analyzes the percentage of the bill associated with each demographic category, of which it advises each firm. Meade notes that such findings lead to delivering “hard messages” to outside counsel and result in some lively discussions, but it’s unclear if any of Prudential’s outside counsel have lost the company’s business over disappointingly low diversity percentages. However, Meade notes that Prudential this year intends to publish to its 12 highest-billing law firms, a list of each firm’s diversity rankings (anonymously, so no firm can identify each other beyond the one with the highest score).
If corporations aren’t going to hold law firms accountable by switching to diverse law firms, what else will make law firms commit to diversity across the board, not just “checking the diversity box” with any one diverse candidate? Law firms are investing huge sums in recruiting diverse attorneys but still failing to retain diverse attorneys more than a few years, with attorneys often leaving before firms can even realize their return on investment. Firms may or may not be seeing the amount of business from their diversity initiatives that they had hoped. Indeed, Toby Chun, a partner at Kirkland & Ellis, suggested in a roundtable discussion at the IILP diversity seminar what could be the trigger to compel firms to truly change their diversity efforts — if diverse attorneys leave law firms in larger numbers to go in-house, to federal agencies or into the federal judiciary, will law firms have a harder time representing their clients successfully, especially if they encounter former diverse attorneys who had left their firm frustrated by their inability to ascend to positions of greater power?