A seemingly constant barrage of reports is highlighting the legal industry’s failure to make diversity, equity, and inclusion (DEI) progress, especially the failure to recruit, retain, and promote Black attorneys. For example, the American Bar Association recently reported that the overall percentage of Black attorneys has declined since 2011. The picture is even bleaker when we look at the progress, or lack thereof, in the nation’s largest firms. For example, according to NALP, it took 11 years for the percentage of Black women lawyers to recover from losses sustained during the Great Recession, moving from 2.93% in 2009 to, eventually, 3.04% in 2020. Or to put it another way, as NALP highlights, “the representation of Black women at the associate level has increased by just one-tenth of a percentage point over 11 years.” Despite so many dedicated resources, the pace of DEI progress in Big Law has been, at best, glacial. Why? A cynic would say it’s because all of this DEI work is window-dressing. Mega firms don’t actually care about DEI. Given that law firm DEI is my day job, I can’t afford to be this cynical. Instead, my view is that Big Law has not made progress because, historically, the bulk of DEI efforts have focused on changing individual behavior, instead of changing the systems and structures in which individuals operate.
Don’t get me wrong. There’s a place for the old DEI standby—implicit bias training. But, for far too long we’ve relied on training as the primary vehicle to effect change. Research indicates that thoughtful, well-executed trainings can be helpful. But individual change efforts alone are insufficient. We cannot expect individuals to fix systemic problems. Systems problems require systems solutions. To improve the recruitment, retention, and promotion of underrepresented attorneys, law firms must update every attorney talent management facing system, because a “diversity problem” is actually a people problem, and it, therefore, implicates all people systems.
The bottom line is that there’s a lot of systems work to do. I won’t outline everything that should be addressed (but it is literally every inflection point of the attorney life cycle). Instead, I will explore two examples of absolutely critical aspects of attorney talent management that must be addressed if we hope to achieve meaningful progress in large law firms.
This is easily one of the hardest yet most important issues to tackle. In many large firms, the hours reports tell the tale—women and underrepresented attorneys routinely bill less than their majority counterparts. No matter how robust your other DEI efforts, if a firm is unable to keep an attorney busy, it is game over.
The issue is even more difficult in large law firms that pride themselves on being “free market” and “entrepreneurial.” Essentially, these firms expect their attorneys to organically develop relationships and find work. Yet, in this type of environment, women and racial/ethnic minorities are frequently on the fringes, left out of substantive opportunities due to a variety of implicit biases.
Instead of relying on trainings, mentorship programs, and affinity groups to fix or navigate around this broken system, firms should address the system head-on by implementing formal work allocation mechanisms. Work allocation or assignment systems essentially act as a bias interrupter. Instead of leaving it up to the busy attorneys to figure out, a resource manager acts as an intermediary. This individual knows who has the capacity to work and helps the assigning attorney find the support they need.
This system comes with a catch. For it to really work, it should be mandatory. When systems such as these are optional, they tend to operate in parallel within a broader free market, where only the work that no one wants or the partners that no one wants to work with end up requiring support. This gives the work allocation system a second-class status, that tends to reinforce the very problem it was meant to solve.
To be clear, a functional work allocation system is far more than a partner with a spreadsheet. The efficient allocation of work is a core issue at a professional services firm. Finding an already busy partner and asking them, unassisted, to manage such a system in their spare time is inadequate. A number of third-party vendors have created sophisticated technology-driven solutions to aid with the implementation of work allocation. These bespoke tools bring together finance data, professional development goals, and empower a dedicated resource manager to assist a given practice group.
Additionally, work allocation measures have import well beyond DEI. Remote work environments have resulted in many firms struggling to staff matters now that partners can no longer walk the halls to find talent. Work allocation tools can also assist with broader professional development and impact firm revenue.
No matter the size of the firm, most attorneys are terrible with feedback, and the feedback given is often affected by confirmation and affinity bias. The inability to provide robust, or even adequate, feedback negatively affects the matriculation of all attorneys. But, it has an exponentially increased impact on underrepresented groups. Law firms must address the gaps in feedback and the disparate effect on underrepresented groups. A great example of a firm undertaking this exact effort was recently covered in a Harvard Business Review article titled How One Company Worked to Root Out Bias from Performance Reviews. The article summarized the efforts of a midsized U.S. law firm that, in collaboration with the Center for Worklife Law, overhauled its performance review process after finding significant differences in the review feedback received by women and people of color.
To minimize bias moving forward, the firm changed the structure of the review process, specifically the structure of the review form itself. The original form had open-ended prompts that didn’t specify competencies or require evidence. To even the playing field, the firm created a new form, broken down by competencies that required ratings to be backed by a least three pieces of evidence. Additionally, the firm delivered a one-hour training that taught everyone how to use the form and provided examples of the types of bias that were to be avoided. These changes resulted in women and people of color getting significantly more constructive feedback.
Also, note what the firm did not do. They did not tackle the feedback gap by providing a two-day leadership training on how to minimize bias in review feedback. Instead, the firm changed the structure of the review itself and created an environment that served to minimize bias, regardless of individual belief or commitment.
The above are examples of some of the many systemic changes that must be made. The difficulty is that these and other important structural changes take time to implement. And as we delay addressing systemic changes, we will further lose the trust of those in underrepresented groups.
Lily Zheng, a DEI strategy consultant and contributor to Harvard Business Review, recently spoke on this issue as a guest on The New York Times podcast, The Argument. Lily explained that long-term structural change is required to achieve DEI goals, but that its “fuel is the trust of your marginalized employees,” and these underrepresented individuals must see change now. Lily went on to explain that the way to see change now is by centering marginalized populations and giving them resources and support, the “short-term-low-hanging-fruit-wins that better their standard of living,” so that they’ll stick around while the organization is also tackling the time-consuming work of structures and systems.
In addition to overhauling talent management systems, we must identify and execute on those quick wins that will materially impact and support people now, even though those changes aren’t systemic. This is where implicit bias training, affinity group resourcing and support, dedicated diversity mentorship/sponsorship programs, and cultural/historical heritage month programs play a role. Firms visibly supporting, discussing, and educating on, issues related to underrepresented groups can make a difference. These actions raise awareness, increase cultural competency, and make people feel seen. But they are necessary, not sufficient. If the non-systems DEI works is all that’s done, the efforts appear hollow and performative. When a law firm only focuses on the quick non-systemic wins, it will fail to make real progress. This too leads to distrust and the departure of underrepresented minorities—which is exactly what we keep seeing in the nation’s largest law firms.
To make DEI progress, we must intentionally update and ensure fairness and equity across all talent-management systems. Systems work isn’t glamorous. It’s often mundane, boring, highly technical, time-consuming work. It involves hours of conference calls discussing the intricacies of firm finance and HR systems. It includes years of tracking data, and iterating, before settling on a structure that really works. And, because systems work isn’t commonly associated with DEI, its thankless work that doesn’t sound great in a glossy brochure, immediately get a firm ranked higher in an industry survey, or win a client award. Nevertheless, it’s what must be done.
My hope is that we’re moving into a new era of DEI, where diversity is not divorced from a firm’s broader attorney talent management infrastructure. After all, diversity is not a separate issue, it is a people issue. It is a talent management issue that must be addressed via talent management systems. Empowering DEI teams to better collaborate with and even lead law firm talent management is key to making progress with DEI efforts.
About the Author
Alexis Robertson is the director of diversity and inclusion for Foley & Lardner LLP. She provides firm-wide strategic direction and oversight on all diversity and inclusion-related matters.