The process may be difficult for some, but the conversations need to happen—the days of sitting back and maintaining a desensitized outlook on this problem must end. So how do legal professionals discuss race and social justice in these trying times? The answer is to listen to those with experience and those affected.
The murder of George Floyd was a turning point. Although he’s one person in a lamentably long list of Black people who have been killed before and since, often at the hands of the police, something about this moment snapped the country out of the complacency formed by familiarity. Like mass shootings and other atrocious events in our culture, the regularity of these killings often leads to desensitization.
But this was different. The recordings of Derek Chauvin with his knee driven into the throat of George Floyd for more than eight minutes, the dispassionate look on his face as he did so, the desperate pleas of bystanders begging him to stop, but held back by Chauvin’s fellow police officers, all combined to take this beyond a temporary moment of grief or outrage and turn it into a nationwide movement. People wanted to do something.
In the legal profession, George Floyd’s killing spurred soul-searching too. A pervasive sense existed that despite a long history of public service, we were in many ways unprepared to talk about this, especially on a personal level.
So, this article is not about diversity initiatives, affinity groups, or pro bono work. These are all laudable efforts, and well worth talking about. (Please see the sidebar at the end of this article for some notable examples.) But all of that is a different story. This article is about how we in the legal sector start to change the conversation about race, within the profession and beyond.
As we spoke to the legal leaders who are quoted below, we decided to try to follow the model of Studs Terkel, the oral historian who was an excellent chronicler of life in America. He knew that the best way to tell a story is often just to listen to people.
First and foremost, this article is a listening project. And then, by adding our voices to the conversation, we hope to contribute something useful. The interviews are presented in the order they were conducted because one question begets another. They have been condensed and have been reviewed by the speakers.
Michael Coston is CEO of Coston Consulting, a certified Black-owned business advisory firm devoted to helping clients expand their business, raise their profile, and advance their diversity, equity, and inclusion efforts.
“One of the reasons why it may be uncomfortable for white people to talk to Black people about race or racism is because there’s oftentimes a lack of prior foundation. Authentic relationships don’t usually start from a place of racial curiosity, personal guilt, or confusion. They start with a common ‘hello’ and basic recognition of someone’s presence. From there, a mutual respect and rapport is established, and a relationship develops. If you have never interacted with or spoken to a Black co-worker previously, I would not recommend using the current climate as your entry point to question them about the Black experience or racism. Don’t start with their race. Start with ‘hello’ and invest in building a relationship so personal discussions are easier to approach.
“We can all expand our exposure to increase our awareness and understanding of different perspectives and experiences. Read a book, watch a documentary. If you’re unfamiliar with racism and its impact on individuals or the workplace, you can do a little homework and become more informed instead of resting comfortably in what you don’t know or haven’t been exposed to.
“The law firms that are best positioned to advance their diversity, equity, and inclusion efforts are those that are not just responding to the current racial justice movement with the knee-jerk reaction of ‘what do we do,’ but those who are taking the more introspective and strategic approach of determining ‘who do we become’ as a firm. That’s the type of mindset and consideration that really drives meaningful cultural and organizational change.
“This is an ongoing journey, and it may take years for some firms to make substantial progress in certain areas. To provide for sustainability, leadership must be aware of and involved in the firm’s DEI work and committed to the organization’s goals. The more leadership involvement, the more likely it is for success and impact to become a cultural mandate.”
Larren Nashelsky has been the chair of Morrison & Foerster since 2012. He is dedicated to continuing and building on Morrison & Foerster’s proud legacy of leadership in diversity and inclusion.
“As a law firm, you need to be consistent, you need to be systematic. You need to unite lawyers, clients, and staff. Complacency is the worst thing that can happen to us as a people and a country. Fighting racial injustice is not a part-time job. And it has to be rooted in your values and your culture.
“People have to be comfortable being uncomfortable. Conversations are what expose our unconscious biases. For high-performing lawyers, that doesn’t always come easily. They’ve always been at the top. But it’s OK to acknowledge that you haven’t done as much as you can. We can all do better. These issues transcend our professional lives. We have to talk about making it better.
“You have to walk the walk every day. You have to express that a lot of people are hurting and that this is not something that affects everyone the same way. One of the important things about being a leader is that you have a special position to start important conversations. It’s an important use of my position to speak, and let people know that we won’t be casual observers.”
Jennifer Johnson is CEO of Calibrate Legal, a legal recruiting and consulting firm. As the driving force behind the Revenue Enabler movement, Jennifer is passionate about eliminating the “non-lawyer” phrase and mentality.
“The legal profession does not encompass lawyers only—many others play important roles in the business of a firm. Law firms are spending tremendous amounts of money to address diversity, but 50% of their workforce is not being taken into consideration on this front. The other 50% are noticing, and it will eventually affect your recruiting efforts negatively.
“Clients are starting to notice the focus being just on lawyers, and they’re going to start prioritizing the need for their law firms to embrace inclusive, enterprise-wide diversity in 2021. Your diverse lawyers also will notice the lack of diversity [in]the staff more and more as they return to the four walls of the office.
“Why wouldn’t you build an organization that emulates the world we live in? You can donate all the hours or money in the world, but if it doesn’t reflect what happens within your own four walls, it’s hollow.
“This issue can’t be handled from the side of your desk. It’s a new discipline for law firms, and the talent pool of D&I expertise is shallow in legal. We have to look to other industries that have been doing it longer. Look to the Big Four and the F500.
“Build a law firm that emulates the good you want to see in this world. The first law firm that truly figures this out is going to be the place where everyone wants to work. But it can’t be focused on lawyers only. If you want to fight racial injustice, look inward and start by being inclusive. Fix that first.”
Eric Friedman has served as Skadden’s executive partner since 2009, furthering the firm’s mission to maintain deeply-rooted commitments to pro bono and diversity, equity, and inclusion.
“The moment we are in now reflects the confluence of racial unrest, a global health crisis, and an economic crisis, and presents an opportunity to create lasting change. Lawyers and law firms have the expertise and resources to change laws and policies that encourage or perpetuate racial injustice.
“With this in mind, Skadden spearheaded the Law Firm Antiracism Alliance, a collaboration with more than 283 law firms and legal service organizations worldwide. The LFAA is bringing together the legal profession to provide a critical mass of pro bono legal expertise as well as research-based resources to support legal non-profits and make a difference on a historic scale.
“As law firm leaders, we have to become personally involved, communicate effectively, and engage and inspire others. In terms of my personal involvement, I have committed to a personal action plan that includes communicating our diversity, equity, and inclusion strategy more often and more directly; mentoring Skadden attorneys from underrepresented backgrounds; and learning from my junior partners from underrepresented backgrounds about their experiences, so that I can best support their career development.
“In doing so, I hope to inspire others to act as well. I am excited at the prospect of turning these troubling times into lasting change.”
Phyllis Wan is the chief diversity and inclusion officer at Holland & Hart, where she uses more than 20 years of experience in diversity, equity, and inclusion to advance the firm’s strategic mission and goals.
“We have a huge role to play. Our legal skills make us uniquely adept to respond in a variety of ways, from proposed legislation to law enforcement reform. It’s always been an issue, but now it’s come to the forefront and we have to seize this opportunity.
“Every firm is out there saying how many dollars or hours they are going to spend on racial justice initiatives, but we need to follow through, not just now, but for years to come.
“Making sure that our people are coping in these challenging times is essential. We’ve spent a lot of time talking to and communicating with our lawyers and staff of color. People are pouring their hearts out and our responses have to be personal while we also give them space and support. One thing we recognize repeatedly, though not surprisingly, is that everyone is unique in how these times are affecting them; so they require different solutions to help them through it.
“Where the rubber meets the road for the legal profession and society is at the individual level. We need to change the culture, and every place is different. New York City is different from Minneapolis or Denver or any other community; there is no one-size-fits-all solution.
“Lawyers can look at their skills and assess where they can make the biggest difference to effectuate social change. As lawyers—as anyone—we’re all drinking from the firehose. But we can’t let this be a moment, it needs to be a movement. We can’t let up.”
Grace Speights leads the global labor and employment practice at Morgan Lewis. Amid national attention on issues of racial equality and social justice, Grace helps employers navigate demands to create more diverse and inclusive workplaces, investigate allegations of non-inclusive or racist workplace environments, and advise on corporate diversity and inclusion initiatives.
“It was difficult for many to have that discussion following the George Floyd killing because there weren’t a lot of relationships that had built between Black lawyers in law firms and white partners, associates, and just white colleagues in general. You can’t have a difficult discussion if you don’t have a relationship and have built a level of trust.
“If you don’t know a person—you just see them passing in the hall, you haven’t taken the time to get to know them—find out the things you might have in common. How do you think that person feels? If you’ve never talked to them about anything but work, and then you go to them to talk about race and ask ‘how are you doing, how do you feel’, that person’s going to feel a little odd. ‘What are you talking about? We’ve never had these kinds of conversations before.’
“The tone from the top is important, and it goes back to relationships. The chair of our firm is exceptional at developing relationships with not just her partners, but with associates, with staff. She wants to know what’s going on in the lives of the folks who are in my group, for example, from partners down to the filing clerk. If someone has a new kid, or a personal tragedy, or if they’ve received an award, she does a personal reach-out. And she encourages our partners to make sure they are doing those things. If you are not showing that care, that human side from the top, it’s not going to impact the culture of the firm.
“We also have to recognize that the experiences of Black lawyers within law firms have not been the same, and we have to go beyond Diversity and Inclusion initiatives. Those have been around for a long time. But that’s not the same as making sure that there is racial equity and racial justice within the firm. In Big Law in general we have failed to focus on the plight of our Black lawyers.
“We have to say, ‘Leader X, you’re going to be responsible for Black partner Y, and you’re going to make sure that that partner is introduced to clients, is included in succession planning, and has all the same opportunities as others.’ We have to be deliberate and intentional, and until the leaders of our law firms recognize that, things won’t change. We’ll be stuck in a diversity and inclusion world, as opposed to racial equality world.”
How Do We Better Communicate?
From our first conversations, the principal theme of this article quickly became clear. If change is going to happen, it must begin at a personal level. Many other themes were repeatedly touched upon—the unique ability lawyers have to help, their need to contemplate how their unique skills can best make a difference, and the need to lead by example—but interpersonal communication was the one clear through-line.
When we conduct media training, we conclude with the thought that if you start the process with a clear goal in mind, you are much more likely to achieve your goal. That may sound simplistic, but with 50 years of media experience between us, we can say with confidence that seeing this concept consistently applied in practice is pretty rare.
In this case, we have a clear objective: achieving a safer, fairer, better, and more just nation for Black Americans. The path is long and challenging, but the people we talked to agree that personal connection and conversation is the starting point.
We—two white men—would not presume to tell anyone how to talk about race, but as communications professionals, we know a lot about conversations. We know that some result in great outcomes, some are absolute disasters, but most fall somewhere in the middle. We coach clients who have a particularly good interview—and a good interview is really just a good conversation—to find ways to follow up with that reporter. Ask them to coffee, or send them messages when you come across something that might be of interest. That’s how lasting relationships, even friendships, are formed; and they come in very handy when you need to know who to talk to in a crisis.
Also, listen more than you talk. Ask as many questions as you answer. Again, it may sound obvious; but we all know people who if asked a single question, are certain to deliver a half-hour earful. That is not a conversation, it is a lecture.
Finally, do not overthink it. Let it find a natural flow. That does not happen all the time; and if it doesn’t, then smile, say thanks, and move on. There are plenty of people to meet. And as Michael Coston said up top, the best place to begin is often with a simple “hello.”
The other day, one of us was walking into a grocery store when a Black man approached, his hand extended. “Hi,” he said, introducing himself, “I’m your neighbor. I live across the street, four doors up.” We exchanged pleasantries and went our separate ways. But now, next time we pass on the street, we have a place to start a conversation.
Sidebar: Race and Law by The Numbers
The intersection of race and law is sprawling and complex. While personal communication may be the key to starting a dialogue on race in law and beyond, numbers have a story to tell, too. Here are a few examples:
A total of 283 law firms have signed onto the Law Firm Antiracism Alliance as of October 22, 2020. That is a 123% increase in commitment since the alliance’s inception in June.
According to the ABA’s Supporting Justice: A Report on the Pro Bono Work of America’s Lawyers in 2016, 82% of attornyes have provided pro bono at some point in their lives, with 52% reporting pro bono service in 2016. The average hours per attorney in 2016 was 36.9. The ABA’s 2020 Profile of the Legal Profession showed the most common clients receiving pro bono help were ethnic minorities (30%).
Probonoist’s Report on the Nature and Prevalence of Pro Bono Partner Roles Globally indicated a steady increase in the number of known pro bono partner appointments over the past three decades: Five from 1990 to 1999; 18 from 2000 to 2009; and 21 from 2010-19.
The Legal Service Corporation’s website states that studies consistently show a higher percentage (80%) of the civil legal needs of the eligible population are not being met.
The NAACP Criminal Justice Fact Sheet shows many dire statistics:
- A Black person is five times more likely to be stopped without just cause than a white person, and a Black man is twice as likely to be stopped without just cause than a Black woman.
- Sixty-five percent of Black adults have felt targeted because of their race. Similarly, approximately 35% of Latino and Asian adults have felt targeted because of race.
- In the past year, 1,025 people have been shot and killed by police. Between 900 and 1,100 people are shot and killed by police in the United States each year.
- One out of every three Black boys born today can expect to be sentenced to prison, compared one out six Latino boys and one out of 17 white boys.
As of October 2016, there have been 1,900 exonerations of the wrongfully accused; 47% of the exonerated were African American. African American defendants are 22% more likely to have convictions involving police misconduct that eventually result in exoneration.
A report that the Black imprisonment rate in the US has fallen by a third since 2006 by Pew Research Center showed some encouraging news. It also noted troubling and familiar statistics.
Black Americans’ imprisonment rate has decreased 34% since 2006. In 2006, there were 2,261 Black inmates per every 100,000 black adults. In 2018, there were only 1,501 Black prisoners for every 100,000 Black adults. This data reflects the overall drop in the nation’s imprisonment rate.
While their rate of imprisonment has decreased the most in recent years, Black Americans remain far more likely than their Hispanic and white counterparts to be in prison. The Black imprisonment rate at the end of 2018 was nearly twice the rate among Hispanics (797 per 100,000) and more than five times the rate among whites (268 per 100,000).
In 2018, Black Americans represented 33% of the sentenced prison population, nearly triple their 12% share of the US adult population.
Finally, a Washington Post report shows that although half of the people shot and killed by police are white, Black Americans are shot at a disproportionate rate. They account for less than 13% of the US population, but are killed by police at more than twice the rate of whites.
Please note this information is current as of October 26, 2020. It was compiled by Infinite Global researcher Catherine Hatala.
About the Authors
Steven Andersen (left) is vice president for content and client strategy at the communications firm Infinite Global. Steve can be reached at StevenA@infiniteglobal.com, or by phone at 212.838.0220. Jamie Diaferia (right), a lawyer, is the firm’s CEO. Jamie can be reached at Jamie@infiniteglobal.com, or by phone at 917.602.0545. Both are based in New York.