It’s the Right Thing to Do

According to Bureau of Labor Statistics, law is one of the least diverse professions in the nation. Though the number of women and racial minorities in the legal field has slowly increased throughout the years, many people believe much more needs to be done. So what can we do to transform the landscape of the legal field and make it more diverse?

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This month’s roundtable features legal professionals from varying practice areas who offer their advice and commentary about encouraging and maintaining diversity in the legal field.

Our Moderator

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

 

 

 

Our Panel

Kit Chaskin (KC) has achieved recognized results in recovering millions of dollars in covered insurance claims for her clients over the past 26 years. She also counsels U.S. and international clients on risk transfer, risk management and policy terms, with a particular emphasis on representations and warranties insurance.

Chaskin is also the global director of the Women’s Initiative Network at Reed Smith. Under her leadership the percentage of female associates at Reed Smith rose from 36% in 2007 to over 50% today. Reed Smith is also the only global firm to qualify for six years running in all six requirements of the WILEF Gold Standard Certification, which reflect a firm’s percentage of women in partnership, leadership, and top compensation ranks.

Sharon E. Jones (SEJ) is the president of Jones Diversity, Inc., a diversity and inclusion strategy consulting firm. She is a Harvard Law School graduate and a former law firm partner, in-house counsel and federal prosecutor. Her firm’s focus is creating workplace cultures that are inclusive and where diverse individuals can achieve leadership roles.
Reena R. Bajowala (RRB) is a partner in Jenner & Block’s Complex Commercial Litigation Department and a member of the Class Action, Technology Litigation, Consumer Law, ERISA Litigation and Labor and Employment practice groups. She represents corporations in significant disputes involving relationships with their employees, customers and business partners. Among many other involvements, Bajowala founded the firm’s Mother’s Circle of the Women’s Forum and also serves on the Women’s Forum Steering Committee and Diversity & Inclusion Committee. A graduate of the University of Illinois, she received her law degree from Michigan Law School.
Bijal Vakil (BV) is the Executive Partner of White & Case’s Silicon Valley office. Vakil has a successful track record litigating complex patent cases in district courts, the International Trade Commission and before the Federal Circuit. His practice covers a wide range of technologies, including computer software, semiconductors, e-commerce/social media, consumer electronics and telecommunications. The knowledge and insight that he brings to the most complex patent disputes has made him a valued asset for technology companies ranging from Fortune 100 companies to Silicon Valley start-ups.

 

Why is maintaining a diverse legal profession important?

KC: The legal profession is being disrupted and disaggregated. We need innovative approaches and the best-quality talent to meet those challenges. By unintentionally excluding people with different approaches and backgrounds, we limit our access to good ideas.

SEJ: I am going to pass on this question.

RRB: It’s the right thing to do. At Jenner & Block, diversity is part of our deep-seated commitment to equality and social justice, as well as our belief that diverse teams arrive at better and more creative legal solutions. Our people—our human capital—are our most important resources. The best way to serve our clients is to tap that resource and allow our people, including diverse lawyers who might otherwise fall through the cracks, to bring their full potential to work every day. It’s a loss if we don’t do this.

BV: It’s core to our identity as a profession. We are dedicated to the meritocratic ideal, protecting individual and group rights, and access to opportunity through legal representation. Consequently, why wouldn’t the diversity of those entering the field organically reflect the same diversity of the evolving social population? There should be few barriers to entry and success in the legal profession. We cannot find and cultivate the best talent—particularly the younger generation, whom studies show prioritize social ideals in their professional pursuits—if we are actually not reflecting what we say we’re committed to.

Like any other profession committed to providing the most innovative and successful solutions for clients, we cannot best accomplish that with a homogenous talent base. As numerous studies have shown, diverse teams achieve better outcomes, outperforming even teams of recognized experts in problem solving. The presence of difference on teams encourages disruptive thinking and discourages group think and the exclusion of challenging ideas that don’t fit the status quo. Such creative problem solving is critical for the clients who turn to large firms like mine to address significant, “bet the company” issues and challenges.

It is simply the right thing to do.

In order for diversity initiatives to succeed, there must be a considerable amount of support at the senior level. How can law firms encourage their senior partners to integrate diversity initiatives into the firm’s overall vision?

KC: I challenge the premise. While it is helpful to have support at the top for diversity initiatives, it is more important to have support from specific senior partners for specific diverse attorneys. They have the power to provide quality work and experiences that make successful lawyers. Only some people care to support firm initiatives, but everyone will adopt an approach that increases their production. A diverse team will get better results, make better decisions and bring in more business from our increasingly diverse clients. That’s an approach everyone can get behind, whether or not they support a firm’s diversity initiative.

SEJ: Diversity and inclusion initiatives only are successful if they are fully integrated into the law firm’s vision and strategy. The firm as a whole must see the achievement of diversity and inclusion goals as critical to the firm’s overall success—otherwise, much of the effort is a waste of money and time because it is ultimately doomed to failure. As a professional services organization, a law firm’s success rests on the quality of its talent. One area where diversity and inclusion is essential is in talent acquisition and retention. Population demographics suggest that top talent at law schools is diverse and firms will be hurting their future success without aggressively competing for this top diverse talent. This is often a persuasive argument to senior partners at firms who are concerned about the firm’s future.

RRB: The strategic vision of our firms rests in our leadership, which is why it’s vital for senior leadership to participate in diversity initiatives. You can’t mandate what people believe but you can educate them about the reality of our world. Once people come to understand the implicit bias that can exist in the workplace, perspectives change. This is why training and education in the workplace is so important to foster an environment of inclusion, which is something that makes us all better.

At Jenner & Block, many senior partners are members of our Diversity and Inclusion (D&I) Committee because they care about creating opportunities for women, LGBT lawyers and lawyers of color. Our D&I Committee was formed nearly 25 years ago which is an indicator of Jenner & Block’s long-standing support for diversity and inclusion efforts. For many years, we have had policies and support structures in place to promote and maintain the diversity of our legal and non-legal personnel and maintain our inclusive environment. Our D&I Committee continues to work on finding new and innovative ways to integrate diversity initiatives into the firm’s overall vision and, equally importantly, in the day-to-day practice of law.

BV: The social and business imperative discussed above together is powerful. One would hope it would persuade most to find diversity to be a critical element of an overall firm vision of future success.

Logistically, as with any business initiative, the most senior leadership has to set diversity as a priority and then incentivize the next levels of management to comply by measuring and rewarding success. To the extent that this traditional, command-and-control model of leadership doesn’t work for an organization’s culture, individual leader buy-in must be secured one influencing conversation at a time. In each case, you need dedicated resources to support manager success in this area.

While the number of women, racial, and ethnic minorities in law has increased throughout the years, the percentage who make partner in law firms has remained disproportionately low. How can firms address this?

KC: Performance evaluation systems need to be rigorously reviewed to eliminate subjectivity and bias. When considering promotions from junior associate to mid-level associate, for example, the first consideration should be on the numbers, without the names of the candidates available. Pick the highest performers on the numbers alone, then put the names back in the mix. This is always an eye-opening experience that reveals high-potential diverse attorneys who have been overlooked due to lackluster subjective reviews from partners.

SEJ: The number of women and racial and ethnic minorities with careers in law has increased throughout the years, and the percentage who make partner has increased as well—but only growing at a “glacial pace.” Part of the challenge is few women and racial and ethnic minorities remain at firms when the partnership decisions are made. For a variety of reasons, they have left the firm. To increase the number of women and minority partners, firms must do two things: 1) be willing to hire lateral partners from government or corporate roles without any business (but give them the support to develop business); and 2) be willing to change the way the firm handles the careers of women and minority lawyers. Are there mentorship programs, sponsorship programs to support their development? Is there a focus on accountability for all of the partners to contribute to building a diverse and inclusive partnership? All of these factors impact the ability to increase the number of women and minority partners. In short, changes must be made. Otherwise, there will be no change in the results.

RRB: The challenge is always to understand the underlying circumstances of any issue we care about. For example, with women, many leave during child-bearing years because of the demands on them professionally and personally. This is why I started a mother’s group—called The Mother’s Circle—to talk about the best policies, discuss strategies to manage the competing obligations and collaborate about needed support. It’s important to have the same model in place for ethnic and racial groups, which is why we created eight affinity groups at our firm, which provide forums where people can talk about what they need from a law firm to be successful. Like all law firms, we need to continue to evaluate these trends and develop initiatives to address how we can reverse them.

BV: You have to get honest about the fact that law firms were created by and for an originally non-diverse population of lawyers. Firm policies and practices evolved from that starting point. While they may be neutral on their face as to there being any required background to join the profession or be viewed as successful, they are often not neutral in their impact. For example, the traditional 8-10 year up-or-out partner track model of most firms adversely impacts women, who would then have to face the most hours-intensive working periods of their careers to gain the expertise equipping them for partnership at the same time as their prime child-bearing years. Similarly, traditional talent management methods of assessing experience and promotion readiness largely using the seemingly objective quantitative hours metric often disadvantages women who can’t make the same hours if they have competing family responsibilities. Qualitative assessment of individual competency is required in a law firm environment that has been slow to evolve and adopt more modern talent management methods that might even the playing field rewarding competencies like efficiency, teamwork and client assessment of work quality as equally important in the promotion discussion. Finally, many global opportunities seen as critical for development, and future leadership opportunities assume a trailing spouse who does not work and can more easily accommodate the needs of a professional and his or her family who must move. Not as many women who have families fit this traditional model.

And humans are human—we are all susceptible to varied implicit biases gained from the larger social and cultural milieu that seep into the workplace and can have an exclusionary effect. If we remember those original members of the profession as role models for what should be in our firms, those who look different will always have to work harder to be accepted. They will often be subjected to more rigorous standards and less effective support in numerous ways, in addition to an unwillingness to change how things have always been done so that new members of the profession have more opportunity, that keep the representation of those who are not in the existing majority quite low. It will only be those of different backgrounds who most closely emulate the traditional majority—including in their cultural affect and family structures among other things—who succeed.

How important is self-assessment (of a firm’s hiring practices, promotion practices, interpersonal relationships, general views about diversity, etc.) when it comes to improving law firm diversity?

KC: Rigorous, realistic assessment is critical to understanding what you’re missing, and you can’t do it yourself. An objective outsider or employment counsel should do the assessment.

SEJ: A cultural assessment is very important. However, I don’t think self-assessment is the right move. Just as lawyers are advised not to represent themselves in a case, it is better to hire an expert to do the evaluation who will be objective and independent. Plus, the expert will be aware of best practices which can implemented to create a more inclusive workplace culture. The expert’s assessment will examine all of the factors you mention above and firms must be willing to go through this examination process in order to make change.

RRB: Numbers always tell the larger story of what is happening. It’s critical to measure your efforts so you can tell whether you are moving the needle in creating the right environment. At Jenner & Block, we are big fans of self-assessment.

BV: A rigorous cultural self-assessment, either through an experienced external diversity consultant or an internal diversity professional working with firm leaders and other key stakeholders who thoroughly understand the organization, is critical to designing a successful law firm diversity initiative. There are few turn-key solutions that provide a one size fits all means to diversity and inclusion in a firm. Clearly there are recognized best practices—like supporting pipeline organizations dedicated to expanding the pool of qualified talent a firm can access and creating internal affinity groups to provide sources of cultural support to those in the minority. However, at the end of the day your best chance of success is with a tailored approach that is organically aligned with your firm’s culture, values, and methods of successfully effecting change, and its particular “pain points” in those areas of hiring, promotion, cultural views or anything else that is preventing diversity.

What role do mentoring/networking opportunities play in improving diversity in the legal field? How can law firms use them to integrate minority groups?

KC: Mentoring and networking opportunities are only truly valuable when they take place in the context of a relationship where a more senior person is including a junior person in the opportunity and teaching them the tricks of the trade. That can’t be legislated or programmed. But, providing equal opportunities for everyone to work with the best people on the best projects can and should be within every law firm’s control.

SEJ: Mentoring and networking play important roles in integrating diverse lawyers into the firm and the legal profession. The legal profession is based on relationships so being introduced to a variety of different networks can be important to both success and feelings of inclusion. Mentors tell you the unwritten rules and provide advice on how to interpret firm culture and to be perceived as acting consistently with that culture. I am a big proponent of formal mentoring programs in order to level the playing field.

RRB: Developing relationships is at the core of what successful lawyers and law firms do—whether it is client relationships or relationships with colleagues within the law firm. Mentoring and networking opportunities support those relationships and are critically important to each individual’s success. At Jenner & Block, we provide both formal and informal mentors to our lawyers to provide insight into our firm culture. Our mentors facilitate making connections with others internally and externally in organizations that provide networking opportunities. Our affinity groups connect people internally with similar backgrounds. We see our approach as a holistic way to keep people aligned and involved.

BV: Formal mentoring and networking programs are crucial interventions that provide more access and opportunity if participants on all sides are truly committed to making them work. We hold up an ideal of organic mentoring and networking relationships without being honest that many in the minority are more susceptible to falling through the cracks in a busy organization absent these formal safety nets. One of the best studies to examine the devastating career impact of a lack of such opportunities is Visible Invisibility, a comprehensive ABA analysis of the group with the highest rates of attrition in law firms, women of color who experience the impact of their unique status as “double minorities.” I find it very troubling when critics say formal programs can’t work and the only option is organic means of networking and finding mentoring relationships. Any program you’re committed to that empowers participants can work quite well.

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Do law firms overemphasize diversity in recruitment and hiring, and under-emphasize it in retaining talent?

KC: Absolutely! Dating is easy; marriage is harder.

SEJ: Most firms don’t overemphasize diversity in recruitment, hiring or retention. Many firms assume that if you get diverse lawyers in the door they will stay and move up to leadership roles. All of the research to date says that is simply not true. You have to focus on retention and that leads us to how inclusive is the culture? What can be done to ensure that unconscious bias is not playing a significant role in the work experiences of diverse lawyers? What is being done to ensure that diverse lawyers have an equal opportunity for success as compared to white male lawyers, the dominant group in most large law firms?

RRB: I only know what we do at Jenner & Block and that is to focus on diversity at every phase of the process—from recruitment through retention. All parts of the process require focus and commitment in equal measures.

BV: Absolutely. It is much easier to fill the summer class in a proportional way reflecting the demographics of most law schools today than it is to do the very hard work of making sure those in the minority as compared to the most senior talent ranks don’t “leak” out of the pipeline. Retention initiatives require significantly more effort and influencing those in power to care about the issue and prioritize it when it’s always easier to go within the status quo and support “easy cases”—oftentimes by focusing on those most similar to ourselves who make us most comfortable.

Can diversity provide law firms with a competitive advantage?

KC: It depends on how you define diversity. The headcount of diverse or female attorneys is only one metric of a firm’s diversity, and it doesn’t guarantee a competitive advantage, except perhaps in recruiting. There is, however, a true competitive advantage for firms that develop and use all their talent to the fullest possible extent and recognize a range of valuable contributions. It’s a virtuous cycle: you build inclusive teams that perform better, so that higher-quality work comes into the firm, which gives those teams higher-quality experiences and skills, which allows for more diverse teams. The opposite is also true. By now everyone has heard the horror stories of all-white-male pitch teams being dismissed by general counsels who insist on diverse teams.

SEJ: Absolutely! Law firms with diverse legal staffs, especially at leadership levels, have a distinct competitive advantage because so many peer firms fail to do so. Clearly, they have a competitive advantage in competing for Fortune 500 client business since those clients generally care about diverse legal teams. They will also have a competitive advantage in competition for top talent who is increasing more diverse and seeking diverse and inclusive workplaces where they can achieve leadership roles. Finally, diverse teams produce the best results when the problems are complex. See “The Difference: How the power of diversity creates better groups, firms, schools and societies,” by Scott E. Page (2007).

RRB: Diversity can and it does provide law firms with competitive advantages. Increasingly, we see our clients either becoming more diverse themselves or asking us to include diverse lawyers on our teams. This is an exciting time in the legal world because we are challenged to make a difference through our inclusion strategies.

BV: Absolutely. As noted, diverse teams achieve better outcomes and innovative solutions are critical for the sophisticated challenges of today’s increasingly global client base. We also see new benchmarking studies noting the higher profitability and other metrics of success of top ranked [US Fortune and UK FTE] companies that have higher levels of gender diversity. The business case has been broadly demonstrated. Practically speaking, many clients are demanding it of their outside counsel. An increasingly female bench of general counsel, approaching the 25% ranks in the US, are vocally and publicly not taking kindly to being presented with all-male, white pitch teams which firms purport to represent their best and brightest in today’s legal profession. Firms that provide a diverse slate of top talent will very likely edge out other firms, all other factors being equal, in the increasingly competitive contest for in-house legal dollars.

 

(Feature Image Credit: ShutterStock)

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