As the legal profession struggles to increase diversity, we find ourselves at a crossroad. Many firms have created diversity and inclusion policies and are working to increase the diversity of our membership. However, a look at the statistics finds that the diversity needle has barely moved. Law continues to be less diverse than other professions. Despite all the talk about diversity, many law firms and law departments remain unconvinced of the value diversity and inclusion bring beyond recognizing that “it’s the right thing to do.” This failure to appreciate the value of diversity and inclusion in the legal profession perhaps can be better understood when it is recognized that there is likewise a failure to appreciate the costs to the profession from the lack of diversity and inclusion.
The Business Case for Diversity
During the American Bar Association’s 2015 Annual meeting, the Law Practice Division’s Diversity and Inclusion Committee is presenting as part of the ABA Presidential Showcase CLE Program, a session called “Counting the Costs: Ramifications of Dismissing the Business Case for Diversity and Inclusion and What to Do about It.” The panel includes Joan Bullock, Emery Harlan, Kenneth O.C. Imo, John Mitchell, Dr. Arin Reeves, Wendy C. Shiba, and Joseph West.
In preparation for leading this discussion, the faculty was asked two questions. The first about their motivation. The second about the future. Here are their answers.
Questions & Answers
What motivates you to be a diversity advocate/champion?
Joan Bullock, Esq., MBA, CPA
Dean Bullock is a Past Chair of the ABA Law Practice Division. She is the Associate Dean for Teaching and Faculty Development and Senior Founding Professor of Law at the Florida A&M University College of Law in Orlando, Florida.
I view diversity and inclusion as a singular concept that, at its foundation, acknowledges the value of every person as a thread woven into the rich tapestry that comprises humankind. Each thread, whether short or long, faint or bold, creates a distinctive mark in the pattern of this tapestry. The tapestry itself is a dynamic fabric, flowing with the blending and contrasting of colors, shapes, sizes, abilities, personalities, values, and perspectives, and cut from a pattern of the continual give and take reflecting the complexity of human interaction.
As a multiracial individual, I live and breathe diversity and inclusion every day. This singular concept is part of my makeup, my physiology. I embrace all that I am and all that I can become. My interaction with others has forced me early on to see life through the lens of being a diverse individual—a “different” interacting with the “norm.” By embracing all that I am, I choose to accept being different and through my interactions, I choose to make a difference.
There is no one point, no triggering moment that propelled me to advocate for diversity and inclusion. It’s who I am and it’s in my desire to bring out the best in each individual of whom I meet.
Emery Harlan
Mr. Harlan is a partner in the Wisconsin law firm of Gonzalez Saggio & Harlan, the largest minority-owned law firm in the country. He also is the co-founder of the National Association of Minority and Women Owned Law Firms (NAMWOLF), an organization founded in 2001 providing networking opportunities for in-house counsel, as well as women- and minority-owned law firms.
What drives me to be an advocate for diversity and inclusion is all that remains to be accomplished despite the gains the legal profession has made to diversify. Frankly, the slow progress of women and people of color in all aspects of the legal profession has been disappointing. I attribute the lack of progress to a sad fact of the profession: success is more a function of relationships than merit. Work is too often awarded to firms based upon interpersonal relationships, which women and people of color struggle to develop with decision makers. While circumstances are better today than in years past, there is a great deal of room for improvement. The profession will continue to struggle embracing diversity until those with the power to change things are forced to be more self-reflective about the importance of an all-inclusive cadre of attorneys serving their companies’ legal needs.
Kenneth O.C. Imo
Mr. Imo is director of diversity at WilmerHale in Washington, D.C., a member of the ABA Law Practice Division and the ABA Center for Racial and Ethnic Diversity, and a board member of the Association of Law Firm Diversity Professionals.
The late Charles Hamilton Houston, renowned civil rights lawyer and former dean of Howard University School of Law, once described lawyers as having the ability to be social engineers—someone who understands the importance of using their skills to bring about positive, impactful change in society (and by extension, in the legal profession). Diversity professionals and those who are committed to advancing diversity in the legal profession are social engineers, and we are afforded the opportunity to use our skills to make a real difference in the profession. While progress on diversity and inclusion efforts can be (painfully) slow, this work is important and I consider myself fortunate to be a diversity advocate.
John Mitchell
Mr. Mitchell is the Vice Chair of the ABA Law Practice Division. An executive coach at KM Advisors, LLC located in Chicago, Mr. Mitchell specializes in working with lawyers who are in formal as well as those in informal leadership roles. He has extensive experience assisting women and attorneys of color successfully apply their talents in new roles and in new environments.
My personal experience as a member of “in” groups and “out” groups created a level of cognitive dissonance within me that I can only manage when I am focused on being an advocate for inclusion. As a child I experienced discrimination due to my father’s race. I never understood why I didn’t experience some positive bias due to my mother’s race. For some reason discrimination doesn’t seem to work that way. On the other hand, by the time I was in high school I routinely benefited from positive discrimination due to my father’s status as a senior military officer. In an overseas military environment, being the son of the base commander came with a host of privileges and opportunities bestowed upon me by those seeking favor with my father notwithstanding his out group racial identity.
My college experience put the icing on the in group/out group experience. I was a member of a fraternity that is predominately Jewish although I am not Jewish. During my years on campus I experienced religious-based epithets far more often than any racial epithet hurled my way in my entire existence up to that point. I had inadvertently joined another out group. Interestingly, the head trustee of the fraternity had a meltdown when I was elected president. It seems that my native out group (race) was even further out than my affiliation with the fraternity. These experiences confuse me to this day.
Dr. Arin Reeves
Dr. Reeves is considered an expert in leadership and inclusion in workplaces and is the President of Nextions, a consulting firm based in Chicago.
At its core, diversity and inclusion are about equality of opportunity, fairness, and authentic appreciation for the ways in which different backgrounds, perspectives, experiences, etc., make each of us stronger and smarter. When these values are a part of how we learn and work together, I really do believe that the world is a better place for all of us and for future generations.
Most people agree with these values in theory, but there are a lot of barriers (conscious and unconscious) that prevent people’s behaviors from aligning with these values. My research and advisory work is about helping people achieve this alignment, and it’s amazingly rewarding for me to be able to do this, even if the results are a little slow to manifest.
I see it as both a duty and a privilege to be able to champion these values as ways to live, work and play: the duty part makes me constantly strive to be a better advocate, and the privilege part allows me to be grateful for the opportunity to do this work.
Wendy C. Shiba
Ms. Shiba is a retired corporate attorney and business executive whose career of more than 30 years included private practice, teaching, government service and serving as an executive officer of three NYSE-listed companies.
Oh my, it’s hard to give a brief response to this one! The shortest answer is because I can. To borrow from Secretary Madeline Albright, “there’s a special place in hell for [diverse attorneys]who do not help other [diverse attorneys].” As a woman of color who entered the profession decades ago and initially practiced corporate transactional law with a major law firm, I was acutely aware that I was in a white man’s world at the firm and with my clients. As my career evolved and I became general counsel of a large public company, I realized the power of the purse in being able to influence the practices of outside counsel. I saw it as both a privilege and responsibility to exert this influence to make our profession more inclusive. Also, although I previously didn’t think of myself as a role model, a combination of time, experience and feedback have told me that I am one. I can be a voice for junior women and people of color who often feel marginalized in our profession, and I hope that I can help them to find their own voice. In particular, I’ve found that when I speak at law firm programs, I’m able as an outsider to raise issues on behalf of the diverse attorneys at the firm that they cannot raise themselves. Now that I’m retired, I no longer have the direct influence of asking law firms about their diversity & inclusion practices when they pitch for business, or of championing women and attorneys of color who work on my company’s engagements. But by staying actively engaged, I remain able to advance the discussion on diversity and inclusion by participating in programs that aim to motivate and inspire change.
Joseph K. West
Mr. West is President and CEO of the Minority Corporate Council Association. He has over 25 years of legal experience having served most recently as Walmart’s Associate General Counsel and head of Outside Counsel Management.
My motivations around diversity and inclusion derive from two main sources. The first is my own personal experience. I have witnessed first-hand the effect that an environment that does not foster inclusiveness can have on talent development. I have even seen pockets of this type of toxicity in workplaces that openly claim to be champions of diversity. Secondly, I have also seen the value to the profession that comes from a meaningful focus on diversity and inclusion.
What do you think is the future of diversity in the legal profession?
Bullock
My expectation is that we will see more diversity in the profession for certain types of legal work. The increasing use and importance of technology in legal practice is creating access not only to those in need of legal service but also in new ways legal service can be delivered. Many legal services will be bid on by tasks rather than by project, thus expanding the marketplace of legal professionals available to do the work. Unlike human relationships, the digital marketplace is not as prone to favor legacy, firm rank, and lawyer pedigree as the end all, be all for the legal profession. Price, efficiency, and effectiveness delivered within an ethical framework will be key drivers for obtaining much of the legal work that is consumer-driven, routinized, or involve non-specialized transactional work. Notwithstanding, while the technology platform may provide increased access to the receiving and delivering of legal services, future technology, like today, may do little to foster an inclusive environment.
Harlan
I believe that positive change is inevitable because of evolution. Younger lawyers who have grown up in diverse environments will become decision makers and empower minority and women lawyers in ways that their predecessors did not, transforming the legal landscape to reflect the multicultural environment within which clients themselves operate. Maybe then, NAMWOLF’s credo, that legal excellence knows no color or gender, will carry the day and all lawyers will find opportunities based more on merit rather than relationships.
Imo
Diversity is not going anywhere. While many of the challenges remain the same, the approach to diversity is evolving and the legal industry’s approach must evolve too. The traditional approach to diversity has focused almost exclusively on headcount issues at various levels within an organization. Now, however, the approach has expanded to include how to effectively use diversity. For example, there has been research on the positive impact of racial diversity on avoiding pricing bubbles in financial markets. This example illustrates the untapped potential of diversity: how it can be used strategically and purposefully. That is the future of diversity in the legal profession specifically and in business generally.
Mitchell
I think the legal profession is slowly and painfully moving beyond focusing on diversity and tentatively exploring the realm of inclusion. Diversity is easy—it is all about numbers. We have 17 percent of “this”, and 12 percent of “that.” We are striving to reach 22 percent of “this” and won’t be satisfied until at least 19 percent is “that.” If we don’t achieve our numerical goals we can game the system to achieve a better result.
The numbers game makes head count easy to measure. Unfortunately, it does almost nothing to indicate the level to which people have been accepted, embraced and given opportunities to succeed. I once asked a seasoned diversity advocate what compelled him to be so expansive in his thinking about diversity and inclusion. He said, “It is simple math, I looked around and realized that there was a bunch of ‘us’, there was even more of ‘this’ and still even more of ‘that’. If we don’t embrace all of these folks we won’t truly achieve an inclusive environment. We may achieve a better environment for ‘us’ but it won’t be better for ‘this’ or ‘that’. Until we all have a chance to succeed, it simply doesn’t work for any of us.”
His words are still ringing in my ears.
Reeves
There has always been an incredible amount of diversity in our world and even in our profession, but we haven’t always been inclusive of this diversity. The legal profession has historically been very conservative about embracing diversity and not very inclusive of the diversity it does embrace. As diversity has become more inevitable, the profession has had no choice but to embrace it, but it continues to struggle to be inclusive of this diversity.
Becoming more diverse without becoming more inclusive is untenable, and the profession is realizing it on many fronts. The future involves a lot more inclusion, and it will be a difficult journey for the profession to change, but the change is no longer optional. The values and expectations of the generation currently entering the profession are already stressing the “but this is how we have always done it” way of working, and there will be much more of that in the future.
We are slowly but surely moving in the right direction. The future will require us to keep doing that but it will require us to do it faster.
Shiba
On the one hand, the future seems bright because the proliferation of diversity & inclusion initiatives and programs seems to signal that we’ve gained traction and have staying power. On the other hand, I sometimes wonder why we still need to talk about it as a separate initiative and question whether we will ever reach a point where it is embedded as an institutional norm. In many respects, the conversation hasn’t changed that much over the past 20+ years, except that we’ve now brought more people to the table and are doing less talking amongst ourselves.
West
I believe we are at a tipping point. We are on the cusp of significant changes in the industry as corporate clients demand more accountability around diversity from both their internal as well as their external clients. I believe in the coming years the trends around law firm consolidation and occasional implosion will be influenced as much by client decisions around diversity and inclusion as by any number of other factors.
Conclusion
Our panelists have spent many years fighting to make change happen both in our profession and elsewhere. Clearly they have spent much time reflecting on their involvement in seeking diversity as well as what the future will bring. Their discussion at the annual meeting will no doubt be enlightening for all of those fortunate to be in attendance.
About the Author
Jennifer Ellis is a legal ethics attorney with Lowenthal & Abrams. You can find her on Twitter @jle_jd.