The Legal Intelligencer
Talking about diversity within law firms has become something of a cottage industry over the past several years. Law firm managers are urged to do better. Consultants analyze, assess, criticize and suggest ways to improve, while many, if not most, within the diverse community (African-Americans, Asian-Americans, Latin-Americans and Native Americans) still harshly critique progress as being too slow. Moreover, for those who are diverse, practicing within the profession and in particular for those working in corporate law firms that exceed 100 lawyers, there are far more stories of despair than success.
Where do we go from here? In a profession that has seen growth and increased profits among these firms over the past decade, getting to the core issues of how we bring more attorneys from diverse backgrounds into corporate law firms and see that they succeed there must be the next stage of the diversity discussion. In this article, I shall briefly discuss three factors on which diversity efforts must focus - all interdependent and all involving the business of corporate law firms - their lawyers, their management and their clients.
Lawyers of color employed by corporate law firms must have the drive and desire to overcome barriers that white lawyers will never need to face on their own roads to success. Law firm management, and in particular practice group leaders, must provide a "level playing field" through case assignments. Finally, the corporate sector must do a better job of ensuring that programs calling for increased diversity efforts within law firms have a direct benefit for diverse lawyers within those firms.
Certainly, other factors play a significant role in diversity programs: training initiatives, mentoring, recruitment programs, community involvement, fellowships and others. Nevertheless, without lawyers who have the drive to achieve and compete in a law firm environment, management that is willing to intervene in order to equitably assure the assignment of cases and an overall client base that has a business commitment to "moving the diversity ball forward," the diversity effort will be less than it could be.
Lawyers of color who expect to succeed in corporate law firms must have the business drive and accept the law firm structure that has existed for the past 50 years. Simply stated, constant improvement, excellent writing, an ability and desire to communicate with other lawyers and the acumen to balance racial or ethnic identity with law firm culture are job requirements in addition to excellent legal skills. Many of these points are applicable to all associates.
However, for diverse attorneys the law firm culture requires more. For the arriving new associate there is no time to rest on past laurels or congratulate oneself on one's hiring into a major firm. Law firm life is a competition that never ends, and the goal of distinguishing oneself must never end. While excellent writing is a requirement for everyone, for the diverse associate, there is a risk that good assignments will not come until this skill has been demonstrated. In the article "Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis," professor David Wilkins, lead author, states:
"Because partners have little information about a new associate's actual skills, the decision about who is a superstar worthy of training will be made as an initial matter in the same way as it is done at the recruiting stage - based on a few easily observable signals such as law school status, academic honors, and grades. Indeed, since partners not on the recruiting committee will probably not have met the great majority of incoming associates . . . decisions about which of these lawyers are superstars will be even more loosely correlated with these signals than typical hiring decisions. Under these circumstances, background prejudices and preconceptions can lead white partners to believe that black associates are more likely to be average or perhaps even unacceptable."
Regrettably, the burden of proof is on the diverse associate to prove that he or she has the bona fides to warrant the better assignments within the practice group. Professor Richard Sander writes in his recent article, "Empirical Studies of the Legal Profession: What Do We Know About Lawyers' Lives? The Racial Paradox of the Corporate Law Firm": "It is very hard to believe that partners would not harbor stereotypes about racial groups with lower average performance levels, and that these stereotypes would not influence assignment and work patterns."
In addition to being an excellent writer, the prescription for a lawyer desiring to overcome racial stereotypes is the ability to communicate. Not oral advocacy in a courtroom, but healthy interaction with everyone throughout the firm. Racial and ethnic identification is commonplace and more prevalent with each succeeding class of graduating law students. Nevertheless, those who build walls around their race or ethnicity and decide not to interact with the still-predominant white men are not going to succeed for very long. To put yourself on the partnership track you have to be smart, work hard and interact well with those around you. Secondly, the single most important action that law firm management can take to increase the likelihood of success of their diverse associates is to ensure that there is a "level playing field" in the assignment of cases. Assuming there is an excellent group of diverse associates who are committed to a successful law firm career, the responsibility for equitable assignments falls squarely on the shoulders of the firm. As Sander admits, too frequently, stereotyping the diverse associate's qualifications poisons the assignment process. He urges firms to make sure that partners are making decisions based on objective indicators of individual performance rather than subjective assumptions.
Many firms are interested in lateral partners and how much portable business can be brought to the firm. Most are interested in potential diverse laterals provided they have enough business. While the business reason for hiring a new lateral is to broaden revenues and legal capabilities, once the new diverse lateral is in the firm, he or she should be exposed to cross-selling and referral opportunities within the firm. As with all lawyers, there will be ebbs and flows of clients over time. In monitoring the billable hours of the new partner, the practice group leader has an obligation to ensure that referrals within the firm - from one practice group to another - are given to the lateral partner, thereby addressing the shortage of hours as well as facilitating long-term integration into the firm.
The assignment of cases is the mechanism that law firms have at their disposal for both associates and partners to monitor the success of their attorneys. Frequently, diversity consultants recommend better mentoring procedures. Mentoring is indeed vital, but if a lawyer has no work because of an inequitable assignment system, mentoring will go for naught. Assignments are a law firm responsibility that should not be delegated to the relationship partner if that would conflict with the firm's diversity goals. The chairs of law firms must insist that their practice group leaders monitor assignments, or the absence of assignments, to diverse partners and associates and take appropriate action when necessary.
Thirdly, for nearly a decade the corporate community has called upon law firms to increase their hiring of diverse attorneys. Beginning with the 1999 "Diversity in the Workplace: A Statement of Principle," in which general counsel pledged to give weight to a firm's commitment to diversity, and followed by the "Call to Action," pledging to limit or end relationships with firms that were uninterested in diversity, the corporate community has indirectly monitored the actions of law firms.
The diversity discussion must now focus on the success of diverse lawyers in these firms rather than quantitative percentages of diverse attorneys. There is evidence that this is beginning to happen. Corporations are now asking some firms to report on the number of diverse associates who have been promoted to partner over a period of time.
To the extent that diversity programs are now an accepted aspect of the legal profession, one would assume their value is to open the doors of the legal industry to those who were historically excluded. Diversity initiatives that increase law firm profits without examining the legal success of attorneys of color within the firm should no longer be considered a vital part of the diversity equation. Because corporations, as clients, have historically been at the forefront of expanded diversity efforts in the legal profession, the narrowing of diversity programs to more specifically benefit the professional development of attorneys of color - if it is to occur - will likely begin with them.
It is fundamental to the profession that most corporate counsel and their businesses in major cases hire lawyers/firms based upon long-standing relationships. Historically and generally speaking, attorneys of color have not had sufficient business contacts with the private-sector corporate community that lead to case assignments. This is one of the reasons why diverse attorneys disproportionately leave their private-sector law firms.
The next generation of successful lawyers must be "eyeballed" by the corporate community at an early stage. Programs that over time develop and nourish the skills and relationships of diverse attorneys will enhance success in the corporate firm. Werten Bellamy's Stakeholder 100 Project is one excellent example of such "eyeballing." This program targets high-performing senior diverse attorneys and connects them with general counsel of major corporations in a manner that contributes to their professional development.
The mission of "Stakeholder 100: Investing in Excellence" is to identify and award top-performing associates of color and their law firms, enlist the involvement of in-house stakeholders committed to a personal investment in top-performing attorneys, and deliver world-class career development training and resources to Stakeholder 100 award recipients.
Nearly 20 years ago, when I managed a minority law firm, I attended a client conference that had engaged me through a diversity program. I had hoped during this conference to expand the business relationship. During the course of our meetings, I learned that some of the client's outside counsel had attended highly technical seminars regarding the workings of its product. I was of course disappointed that this opportunity was not offered to me. While I was thankful for the business I had received, I missed the opportunity of being on the "cutting edge" of the technology about the client's product.
The Stakeholder 100 Project addresses just such gaps in diversity programs by targeting diverse lawyers, not firms. Corporate America has the opportunity to develop other innovative programs to provide diverse attorneys with the opportunity to develop the relationships and skills that will make ours a more diverse profession - not just immediately, but for the long term.