Another Face of the Law

The number of Minority Owned Businesses Enterprises (MBEs) and Women Owned Business Enterprises (WBEs) are on the rise in the legal industry. These law firms owned and operated by minority and women attorneys provide partners and staff with valuable career opportunities, yet also face particular challenges. The National Association of Minority and Women Owned Law Firms (NAMWOLF) was founded to promote diversity in the legal profession by fostering successful relationships among preeminent minority and women-owned law firms and private/public entities. This month our panel of experts, which includes some NAMWOLF members, discusses MBE/WBE law firms and the state of diversity in the legal profession.

Our Moderator

Nicholas Gaffney (NG) is a veteran public relations practitioner in San Francisco and a member of the Law Practice Today Editorial Board.

 

 

 

Our Panel

Bacardi L. Jackson (BLJ) joined Tucker Law Group, LLC, a civil litigation boutique in 2005 and four years later established the firm’s Florida office. She practices in Florida and Pennsylvania, where she represents Fortune 100 companies, colleges and universities, governmental entities and individuals. Ms. Jackson has lectured and presented legal seminars on employment law issues, trial practice, compliance, diversity, ethics and higher education law extensively.
Elizabeth A. Livingston (EAL) is a senior associate in Griesing Law, LLC’s Litigation and Alternative Dispute Resolution practice group. Ms. Livingston has served as a fellow in Young Involved Philadelphia’s Nonprofit Board Prep Program and was chosen to participate in the Forum of Executive Women’s 2016 Mentoring Circle Program to hone her leadership skills.
Janeen N. Lofton (JNL) is counsel at Liebler, Gonzalez & Portuondo, a law firm servicing banking, commercial, business, and real estate law needs throughout Florida, the southeastern United States and the US Virgin Islands. She previously worked as a Wall Street investment banker. After graduating law school, Ms. Lofton served as an attorney advisor for the Washington, DC Court Systems, then joined Orrick, Herrington & Sutcliffe.
Valerie Theng Matherne (VTM) has concentrated her practice in civil defense litigation, including automobile, product liability, environmental, toxic tort, bad faith, insurance coverage, premises liability, construction, and employment law.
Nada Maalouf Peters (NMP) is a partner in Darcambal Ousley & Cuyler Burk, LLP’s (DO&CB) New Jersey office. Ms. Peters’ practice focuses on life, health and disability litigation, other insurance coverage litigation, general contract litigation and tort defense litigation and product liability. Before joining DO&CB in 2007, Ms. Peters worked in the litigation department at Paul, Weiss, Rifkind, Wharton & Garrison LLP. Ms. Peters has also volunteered her time to Partners for Women and Justice.

 

NG: Why did you, if this question applies to you, leave “Big Law?”

BLJ: First, I must say, not all “Big Law” is created equal. I had very different experiences at the two international law firms where I practiced. Located in different regions of the country, the firms reflected very different cultures and values. My comments, therefore, cover the range of those experiences. I enjoyed many aspects of “Big Law” tremendously, i.e., the depth of training, the organizational structure of the firms, the opportunity to work on large, complex matters, the ease of practicing with extensive internal resources, and the opportunity to impact recruiting, hiring and retention of a large number of attorneys.

Other aspects of “Big Law” were troubling, including the lack of diversity in all levels of staffing, the higher standards that were often applied for the hiring of minority and women attorneys, the lack of willing mentors for minority and women attorneys (particularly in transactional areas of practice), the difficulty minority and women attorneys had in finding opportunities to gain meaningful experiences other than where clients demanded it, the hyper-competitive culture between colleagues and the lack of opportunities to gain trial experience other than for a few attorneys. The biggest factors in my decision, however, were meeting attorneys of my current firm, identifying a mentor who was the type of practitioner I wanted to become and finding an environment in which I knew I could flourish. The opportunities to try cases and develop personal client relationships were also much greater in a smaller firm.

EAL: I decided to leave “Big Law” and join Griesing Law for its entrepreneurial spirit and leadership development opportunities. As a boutique, women-owned law firm, Griesing Law was founded on the premise that attorneys, especially female attorneys, would be given the support and resources to take ownership over their careers. Working here, I can develop my own relationships and book of business without the politics and competition that can be found at large firms. Further, I collaborate with a small, tightly knit team and have greater responsibility for case strategy, court appearances and lead motion writing, to which I likely would not have had the same access at a Big Law firm. I also have more targeted and meaningful mentoring experiences – both as a mentor and as a protégé.

JNL: Leaving “Big Law” was definitely bittersweet. I left with the understanding that smaller firm equals more hands on responsibility. There is truth to that thought… particularly for younger attorneys. So, I’m definitely happy for the levels of experience I have been able to amass in a “smaller” law firm.

VTM: I was never a part of “Big Law” as we define it today. However, I represented large clients with complex litigation but in an intimate environment of a smaller firm. The knowledge I received, especially one-on-one mentorship and first-hand experience in litigation, was priceless. I still use much of what I learned from practicing in a smaller firm setting.

NMP: I began working at DO&CB 10 years ago after leaving a large law firm where I worked for about three years after graduating law school. I left “Big Law” because I wanted more opportunity for growth and a better quality of life. I was looking for more hands on experience, client exposure and the responsibility of being able to litigate a case from start to finish on my own.

NG: Are there any challenges of working at a MBE/WBE firm?

BLJ: The ongoing challenge of working at a MBE/WBE firm, which is also an opportunity, is the intentional or unconscious bias we sometimes face in court or among other members of the bar. We understand well the dynamics of such bias and gracefully rise to that challenge by exceeding low expectations and the double standards we sometimes face through our preparation and excellence. However, it is frustrating that many still do not expect to see firms like ours representing the caliber of clients we represent and that we still must deal with the indignities of such treatment.

EAL: The biggest challenge is being viewed as an excellent attorney, period, and not just a practitioner who is “good for a young female attorney.” It can be difficult to prove that you are someone who can stand up to the best of the “old guard” rather than being perceived as someone who is competent but still considered an “other.” With that comes the pressure to be perfect, as you’re held to an even higher standard than attorneys who are or who work for a known entity. We always have to be better, faster, cheaper, and more available, and that can decrease work/life balance, individual compensation, and firm revenue. Another challenge that dovetails with what I mentioned above is the heightened expectation to promote yourself and the firm in order to stand out from the pack, while doing so in a way that isn’t too heavily focused on your status as a minority. It’s a difficult balancing act to strike.

JNL: There are definitely challenges with working for a Minority Business Enterprise. I work with a premier litigation boutique where the firm has won several client based awards along with community service awards. However, breaking down preconceived barriers as it relates to the effectiveness of women and/or diverse lawyers is always a challenge even for the “Most Diverse Law Firm in South Florida.”

The good news is because we are totally aware of these barriers, we consistently and consistently give 150%, meaning that we are lean doing expert level work for less cost to the client. This reputation has been what has generated new business and kept our clients happy over the years.

VTM: I would say that the majority of people are thrilled to hear that we are a women-owned firm and quite impressed with our representative clients. Sometimes, people are actually “surprised” by our representative clients and have an epiphany that MBE/WBE firms are maybe something to look into. Thus, I would say the challenge is erasing any preconceived notions about MBE/WBE firms and spreading the word that MBE/WBE firms are worth a second look.

NMP: Misperceptions about the quality or capabilities of MBE/WBE firms are often hard to overcome. While some companies are focused on diversity, many in-house departments prefer to continue to give work to big firms with whom they have previously worked and have track records. There are often opportunities to work with and develop a relationship with MBE/WBE firms by sending them less complex and/or more specialized work. However, rather than doing so, some companies instead focus on taking steps to make the big firms with whom they work more diverse.

We have experienced the effect of these misperceptions firsthand. When we initially began marketing the firm as a women-owned firm years ago, we found that some of the more complex work we had been given in the past by clients with whom we had established relationships was no longer being sent to the firm even though the firm, including its attorneys, remained the same in all aspects.

NG: What opportunities do you have because of working at a MBE/WBE firm?

BLJ: Much like historically black colleges and universities and women colleges, MBE/WBE firms serve as the training ground for some of the best legal talent in the country. They provide a safe space for minority and women attorneys to hone their craft, which is a demanding enough task standing alone, without the added burden of race and gender politics and the daily barrage of micro-aggressions and micro-inequities that are proven by the dismal retention rates of large firms to take their toll. In addition, because diversity is embedded in the core of our existence and is valued in all aspects of our practice, we are able to leverage our attorneys’ diverse experiences and perspectives at every level of litigation from assessing the value of a case, to developing a close rapport with witnesses, to relating to the diverse experiences of juries, to our presentation of information at trial. We have had several of our longstanding clients remark about how impressed they are with our ability to develop genuine and close relationships with staff at all levels of their institutions from the President to the cleaning crew. This ability stems from the vast range of our experiences and the vastly different cultural worlds many of our attorneys have spent their lives navigating.

EAL: Being part of a WBE firm has enabled me to get involved in organizations like NAMWOLF and LCLD which encourage diversity in the legal profession and foster the next generations of women and minority leaders in our field. Membership in these organizations has allowed our firm to take advantage of a nationwide network of likeminded, reputable and vetted attorneys with whom we can bounce around ideas, partner on projects, and refer work. Such partnerships have added to my repertoire of specialized knowledge in niche areas of the law. I’ve also developed a strong network of friends and colleagues across the county with whom I can connect during business travel which would otherwise be all work and no play.

JNL: Tons. Because of organizations like NAMWOLF, I have had personal and professional opportunities to grow with like-minded individuals who have had a fantastic level of trajectory within their respective corporations or law firms. Due to the fact that they have overcome diversity challenges, they are the best position to offer advice… moreover, they also are clued in to the fact that MBE/WBE provide a lean cost expert legal model really because they have to. Thus, if you are working with a MBE/WBE, particularly one vetted through associations like NAMWOLF, you know that your matter will be well handled at a reasonable expense.

VTM: The opportunities have grown so much in the past few years as our clients become more diverse, especially in the upper echelons/top tiers of the companies. The companies are looking for quality representation that reflect who they are and reflect their customer base. They understand that MBE/WBE firms truly have something unique to offer. Also, I am thankful beyond words for NAMWOLF, as NAMWOLF truly spreads the word about MBE/WBE firms and gives MBE/WBE firms a chance to have an audience with top companies that were thought to be previously unattainable.

NMP: Some companies are focused on diversity and are committed to developing relationships with NAMWOLF firms. They often have diversity spend budgets and proactively find work to send to MBE/WBE firms. As a result of this commitment and our status as a WBE firm, we have been able to develop ongoing relationships with several companies.

While some in-house departments are still hesitant to assign what they view as high value and/or complex cases to MBE/WBE firms, the work that is sent gives firms an opportunity to prove themselves and develop a relationship that may lead to more work in the future.

NG: Are there any myths that “we” need to debunk?

BLJ: We still need to debunk the myth of a post-bias America. Many assume that no barriers are left for minorities and women, or that minorities and women get special undeserved opportunities at the expense of white male attorneys. Given the dismal statistics of our industry with regard to the promotion of women and minorities to partnership levels, the lack of retention of women and minority associates and persistent differences in pay, we still have much work to do to remove barriers to create inclusive environments and remove barriers to success.

EAL: Similar to what I described earlier, the biggest myth about WBE/MBE firms is that we’re not as capable and hardworking as our Big Law counterparts. In fact, our firms are held to an even higher standard by clients than larger establishments. Another myth is that diversity and inclusion efforts solely benefit minorities and/or give minorities a “leg up” that those in the majority do not have. In fact, everyone benefits from having different voices and perspectives in conversation with each other, and this type of conversation yields better results. Organizations like NAMWOLF exist to even the playing field in the legal profession for groups that do not have the same business access and power as the majority have, and this even playing field enriches opportunity for all groups and is not provided at the expense of others.

JNL: Yes. The myth that needs to be debunked is that SOMEONE else will interview and hire MBE/WBE. The commitment must be taken on by EVERYONE. Good intentions will not debunk the erroneous perception that MBE/WBE firms may lack the skills to do the work.

VTM: One of the myths that needs debunking is that MBE/WBE firms lack skills to do the work. This is furthest from the truth because I work with some of the brightest minority and women attorneys around. In my opinion, MBE/WBE firms work even harder to debunk this myth. As a woman, there are myths that we cannot possibly juggle our family responsibilities with our work duties leading to less opportunities. Many women attorneys, including myself, are a living testament that this myth needs debunking.

NMP: Many in-house departments believe that MBE/WBE firms are not of the same quality as big firms they currently use and/or are equipped to handle more complex litigation when most MBE/WBE firms have more specialized practice areas and many of their attorneys previously worked for large law firms. Further, many MBE/WBE firms have established relationships with each other and often work with each other on larger or more complex cases and/or in connection with work done for companies pursuant to national service contracts.

NG: What discussions should be taking place with regards to diversity?

BLJ: One area of focus that we need to discuss is ally-ship. It is critically important that the mantle of inclusion and diversity in our profession not only be assumed by those who are relegated or marginalized, but rather each of us must take time to recognize our own unfair advantages and demand an environment that does not limit the opportunities and privileges we experience to those who are like us. This means that we must resist normalizing C-suites, board rooms, robing rooms and partner meetings that are disproportionately white and male. We must each acknowledge when and where we have privileges that others don’t have. Even minorities and women sometimes have to take stock of our relative privilege to other groups – for example, the 2016 Report on Diversity by NALP shows that the road to partnership for minority women is often more steep than the road for white women, and that Asian attorneys have had greater success in breaking barriers than other minority groups.

JNL: The discussions should be taking place with regards to diversity need to be trending. No, diversity issues have not been eradicated, but what was troubling last year may not be exactly the same issue as this year. In 2017, I believe that we need to focus on unequal pay. Why? Because it is unbelievable that we have not figured out a systematic or otherwise appropriate way to rid the legal field of this problem. As the legal market is changing from a male predominated field, to mostly women. I feel like the timing to fix this issue is now.

VTM: I think it should be communicated that diversity is the future and it is what makes the world go round, as clichéd as that sounds. Frankly, it is a reality and quite a disservice to future generations who will go out into the job market thinking the world will be just like them. The entire job market, not just the legal industry, will continuously reflect our increasingly diverse environment.

NMP: Discussions regarding what in-house departments can do differently to change the culture as to how MBE/WBE firms are perceived should take place. In order to change the perception, companies need to actually work with MBE/WBE firms and form independent opinions based on their work. In this regard, instead of forcing bigger firms to become more diverse, companies should try to find opportunities to work with firms with established experience that are already diverse. To the extent that many MBE/WBE firms have specialized practice areas, these discussions should also center around the various areas and type of work that MBE/WBE firms would be well-suited to handle. Also, in-house attorneys who have good experiences with MBE/WBE firms should promote those firms to their colleagues when they do a good job.

NG: What, if any, unconscious biases do you believe are associated with MBE/WBE firms?

BLJ: I believe any MBE/WBE firm has less room for error. As in our criminal justice system, the failure of any minority or women attorney is often attributed to the entire group and reinforces stereotypes people often carry unconsciously.

JNL: Plenty. Despite all of our best efforts, unconscious bias is still present. Not only must MBE and WBE firms often times battle superficial prejudices, typically these firms are smaller and yet there is another hurdle. In 2017, firms must work leaner; thus, MBE/WBE firms have generated new interest as they are able to provide uncompromised work product at a fraction of the cost because they have always had to provide this. Joel Stern has always said this… “it’s not enough to be invited to the party, [we]want to be asked to dance.” So, not only do MBE/WBE firms deserve the opportunity to pitch, qualified MBE/WBE should get the opportunity to take on new files so that we can illustrate that different sometimes is better.

VTM: I have heard on countless occasions that other women attorneys who practice in complex litigation, not just myself,  have been “mistaken” many times as the court reporter. This goes in line with the myth that WBE firms are unable to do the work. There is also an unconscious bias that WBE firms will not be aggressive enough. In litigation, when I sense unconscious bias, I tend to think of it as a weakness in my opposing counsel. If they do not wish to take a MBE/WBE firm seriously, they could be left unprepared and it could become fatal to their case.

NMP: As noted above, there is a perception that MBE/WBE firms are less competent than other firms and/or require more supervision. Further, women with families are often perceived as having more family responsibility and/or therefore unable to work as much as men which is an added impediment for WBE firms.

NG: What organizational accountability, if any, do you believe attorneys face at MBE/WBE firms? Can this be measured against diversity efforts?

JNL: I do believe there is a direct link associated with the work of the diverse attorney with the perception of the entire firm when the attorney is associated with a MBE/WBE. Not yet certain whether this be measured against diversity efforts.

VTM: Due to their size, accountability at MBE/WBE firms is immediate and clear as both rewards and consequences are magnified and occur with each case. People are able to see the direct connection between results and recognition. Diversity efforts drive marketing at MBE/WBE firms. Consequently, there is also measurable accountability in the form of work origination and client satisfaction with that work.

NMP: In some ways, it is easier for MBE/WBE firms to attract and retain diverse talent. Our commitment to diversity is evident by the diversity in leadership and this leads diverse talent to believe that we are committed to diversity and not simply paying lip service to that ideal. For that reason, I expect we get a more diverse applicant pool than other firms and thus we have not had a problem with maintaining diversity in our ranks.

NG: What types of effort/support do you believe are key in the success of female attorneys? How do MBE/WBE firms better provide this?

BLJ: I believe flexible work schedules, the opportunity to work remotely, and alternative pay structures are key to not only the success of women attorneys, but also the success of attorneys who are parents. Culturally, we have not moved the needle much in our assumption that child rearing is primarily the responsibility of women. Consequently, men are often discouraged from taking advantage of flexible work arrangements. I believe we will not successfully create equity in the workplace until we make a cultural shift in our homes. Notwithstanding this longer term goal, I recognize that women do still bear the brunt of such responsibilities and flexible arrangements that do not derail their opportunities for promotion and firm leadership are often important for at least a small part of their legal careers. MBE/WBE firms tend to be more conscientious of such needs and such arrangements are often built into the structures of the firms from their inception.

JNL: Mentorship, joining women VBAs both nationally and locally and personal development investing. MBE/WBE firms can better provide this simply by supporting the attorney.

VTM: Strong mentorship is key. The mentor need not be female, or just one person. The female attorney should receive support from her environment; be taught to believe in her abilities; and be given opportunities to use them.

NMP: MBE/WBE firms tend to be more focused on the quality of their attorneys’ work rather than strict billable hours and/or time spent in the office. In this regard, MBE/WBE firms are often open to flexible work schedules/arrangements, there is better mentoring of attorneys and therefore MBE/WBE firms are able to retain their attorneys. We also try to foster attorney development through frequent client exposure and by encouraging all attorneys to market themselves and crediting attorneys for time spent marketing and/or for client development.

NG: Where do you see the profession in the next five years as it relates to young female attorneys? What can we do now as MBE/WBE firms?

BLJ: Women outnumbered men in law school enrollment for the first time in 2016. Keeping in mind that women were not admitted to law school until 1869, that the first woman was not elected to a state supreme court until 1922, that a woman was not appointed to the U.S. Supreme Court until 1981 and that the first time a black woman led the ABA was just two years ago, the opportunities for women will continue to expand just by the natural rates of attrition and the sheer volume of women who are entering the profession. The challenge continues to be carving a path to leadership within the profession, but I am confident that we will continue to make strides in that area as well. We must be mindful, however, that the growing opportunities for women are still disproportionate with respect to other diversities and we must be ever vigilant in our efforts to make sure diversity in all of its forms is a core value.

JNL: I really do not know, but hope as more young women enter the legal market, that achieve equal pay as this is a flaw that should have been remedied long ago. Maybe Equal Pay Day 2018 (4/10/2018), will invoke more discussion and hopefully more of a change eradicating a 20% gender gap in pay. In the next five years, hoping that some of the basic achievements, such as equal pay, become a diversity discussion of the past and MBE/WBE firms are responsible for this change.

VTM: The profession will certainly grow with more female and minority attorneys, and I have optimism that you will see more of them handling complex legal issues. MBE/WBE firms should encourage this growth with the firm’s attorneys serving as positive role models/mentors to them. With the right environment, young female and minority attorneys will flourish.

NMP: I think progress has been made with respect to women in this profession and am optimistic that progress will continue in the next five years in terms of women being represented more in firms and leadership positions and with respect to compensation. In order to retain women attorneys, as noted above, firms should be open to flexible work arrangements, provide the same opportunities for desirable work assignments to female attorneys and encourage attorney development outside of the office through non-billable activities such as client development.

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