“We can, and should, do better.” This comment, by Ahmed Davis, the national chair of Fish & Richardson’s diversity initiative, highlights the continuing challenges of the corporate legal profession’s attempts to increase diversity through its ranks. Davis was one of the 53 leaders of the corporate legal profession interviewed for an article by Stanford Law Professor Deborah Rhode and myself published in the 2015 Fordham Law Review.
We spoke with chairs of Am Law 100 law firms and general counsel of Fortune 100 corporations to get their take on the challenge of increasing diversity in the profession. Formal and informal initiatives to increase diversity have mushroomed over recent years. We wanted to know how the leaders saw these efforts, what they were prioritizing, what was succeeding, what was not, and how they were shaping future goals. What we heard was a true commitment to the general principle of diversity, but a deep frustration with the lack of change over time and the difficulties of finding successful policies.
Research shows that one of the most important requirements for a successful effort to increase diversity in an organization is a clear, well-articulated, and well-thought through commitment from the leadership of the institution. That commitment needs to include a transparent system of evaluation and rewards, and allocation of leadership and development opportunities tied to diversity. Diverse attorneys need to be given specific opportunities, and supervisors need to be held accountable for providing those opportunities. Tying compensation and advancement to promotion of diversity goals is an effective tool and should be used more often. Another very effective intervention is well-designed mentorship and sponsorship programs. To be successful, such programs need to evaluate and reward mentoring activities and provide guidelines and real feedback for the mentoring relationship.
Despite all these [diversity] efforts, the leaders’ evaluations of the success of their initiatives were mixed. They generally felt they were making some progress, at least in the recruitment phase, but admitted that retention and promotion continued to be major issues, particularly for African-American lawyers.
Practically all those interviewed stated that diversity was a high priority and generally spoke about diversity’s importance in economic terms (i.e. important to compete for business and to align with client/customer interests). Law firms’ diversity efforts tended to be somewhat more formalized than legal departments with formal plans, goals (sometimes with numeric goals), and specifically identified leaders for the initiatives. The legal departments’ programs were often part of the larger corporate approach. The specific components of diversity efforts were generally similar and included trainings, speakers, affinity groups, retreats, and mentorship or sponsorship programs. (In one particularly interesting effort, J.P. Morgan has recently established a legal re-entry program targeting lawyers—generally women—who have been out of the workforce for at least a year. The lawyers participate in an eight-week internship in the company, after which they have the possibility of being considered for a permanent position in the legal department.)
The issues of assessment and accountability seem to be more challenging for both firms and legal departments. Most respondents relied on surveys for internal assessment and accountability. Some used exit interviews and 360-degree reviews. But those we spoke to really divided over whether tying financial compensation to diversity efforts was a good idea. Some felt doing so got people’s attention and communicated the importance of the commitment; others felt that it was “artificially incentivizing” something that should be part of the culture of the firm.
Despite all these efforts, the leaders’ evaluations of the success of their initiatives were mixed. They generally felt they were making some progress, at least in the recruitment phase, but admitted that retention and promotion continued to be major issues, particularly for African-American lawyers. As one participant stated, “It’s hard for us to walk away and say that we’ve moved the needle even though we’ve been trying… . It’s not a lack of trying, it’s a lack of impact.”
The leaders interviewed tended to point to outside factors as causing the lack of impact, i.e. the law firm leaders blaming in-house legal departments for hiring away their diverse attorneys, general counsel lamenting that they could not pay as much as law firms, both blaming the pipeline for diverse lawyers, and some even blaming geography.
They also acknowledged issues such as implicit bias, diversity fatigue, and the difficulties of having truly honest conversations on the issue. On the question of the retention of women, however, most acknowledged that the nature of the profession, a “culture that focuses heavily on hours as a metric of contribution,” and the 24/7 aspect of client services in today’s connected world, as major hurdles. As Mitch Zuklie, chair of Orrick and member of the Stanford Center on the Legal Profession’s Advisory Forum noted: “If we crack the code on work/life balance, it will help women.”
The commitment and candor with which these leaders approach the problem of diversity is to be applauded. What we know about diversity, however, demands a level of discomfort and disruption beyond current efforts.
We are not comfortable with specifics when it comes to diversity—we are not comfortable with quotas, or with holding individuals accountable for the diversity of the organization as a whole, or with financially compensating people for their diversity efforts. But these practices have impact. We know what we are doing is not working, and we know what could work better.
The question is: will we do it?