The legal profession has a diversity problem. A review of government studies, news stories, and scholarly articles on the subject tell a single story: the law is the least diverse profession in our country. According to the most recent studies, 88% of lawyers in the United States are white. And although women currently make up a little more than a third of all American lawyers, women comprise only about 20% of all partners nationally and less than 20% of either equity partners or managing attorneys. LGBT lawyers are even more poorly represented in the profession.
These deficiencies are significant. In 2010, the ABA released its Report and Recommendations on diversity in the legal profession that included four rationales explaining why diversity is so critical, not just to the practice, but to our nation as a whole. First, diversity enhances democracy because of the special role that lawyers and judges play in “sustaining a political system with broad participation by all its citizens.” As the ABA explained, “a diverse bar and bench create greater trust in the mechanisms of government.” Second, in our increasingly global profession, it simply makes good business sense for the profession and for law practices to include lawyers from diverse backgrounds to respond to clients’ wide-ranging cultural and linguistic needs. Third, law school graduates make up the pool from which many of our nation’s leaders are selected, and this group should reflect the minority as well as the majority. Finally, our nation is becoming more diverse every year. Simple common sense dictates that our profession should reflect who we are as a country.
Drawing on research and scholarly input, the ABA proposed several next steps for our profession in its 2010 Report and Recommendation, including suggested ways to enhance diversity in the law schools, firms and corporations, and in government and the judiciary. But importantly, the ABA addressed the role that bar associations can play in advancing diversity. Bar associations are absolutely critical vehicles for advancing diversity because, as the ABA emphasized, they “help shape the norms of the profession regarding the value of diversity.” Bar associations regulate us and empower us with the ability to practice consistent with the conditions and values that bar associations both require and model. When bar associations prioritize diversity, it institutionalizes those critical values. When bar associations do not prioritize diversity, as the ABA’s report noted, it creates an environment that tends to exclude or marginalize underrepresented groups, “which often leads to alienation, dissatisfaction, a dearth of potential mentors to socially diverse law students, and a paucity of diverse law firm partners, corporate counsel, tenure-track law professors, appointed government attorneys, and judges.”
As a result, the ABA in 2010 encouraged bar associations to take real steps toward prioritizing diversity in their respective jurisdictions. This included promoting a culture of diversity with programs, continuing legal education, and encouraging partnerships with existing affinity minority sections of the bar and the broader bar association. The recommendations also included concrete changes such as adopting formal diversity statements, collecting data, and promoting access for people with disabilities. It also included outreach to minority organizations in high schools and colleges as well as mentoring. And importantly, the recommendations urged bar associations to focus on networking and mentoring in the professions that would create opportunities for minorities to take leadership positions in the broader bar association.
So where are we now? Six years later, a review of diversity initiatives across state bar associations shows that many have taken the ABA’s recommendations very seriously. In fact, the majority of state bar associations in 2016 have established committees devoted to diversity and inclusion. Many of these committees have taken significant action to promote diversity, including judicial mentoring for minority law students, minority bar exam grants and LSAT scholarships, diversity institutes and summits, minority networking, diversity oriented CLEs, diversity data-gathering and oversight, and partnerships with law firms on diversity clerkships. In very proactive states, the bar associations have put diversity—a minority concern on its face—in the mainstream, which is precisely what the 2010 recommendations encouraged. They have made diversity a priority, and established it as an institutional value for the organization. With the bar’s encouragement, prominent members of the bar, law firms, law schools, and judges that wield influence in the legal community also make it a priority. Ideally, both underrepresented groups and the community as a whole benefit for the reasons that the ABA set forth in the four rationales.
The state bar associations that have taken an active role in diversity and inclusion are an interesting demographic and geographical mix. They are found in both red and blue states. And, while many of them are relatively urban, with large minority populations and presumably an active minority bar, several very active states are smaller, more rural states with small minority populations. Interestingly, in addition to promoting the kind of diversity discussed in the 2010 report, at least one of these smaller state bar associations has also identified the state’s rural population as an underrepresented group that warrants attention.
Although a promising and large group of state bar associations have placed a high value on diversity since 2010, unfortunately, others have not. Some state bar associations have established diversity and inclusion committees that appear to do very little, if anything at all. And a small minority of state bar associations do not have diversity and inclusion committees and have apparently taken no public steps toward the goals set forth in the 2010 report.
The least active states are also an interesting demographic and geographical mix. With a few exceptions, however, they share one interesting trait: a relatively high proportion of a single, historically disadvantaged minority population. For instance, several of these bar associations are in states with among the highest Native American populations in the country, but that are otherwise mostly white. Likewise, some of these less active bar associations are in southern states with large black populations and relatively recent histories of institutionalized racism. While some of these state bar associations have voluntary minority affinity sections (i.e., Women’s Law Section or Indian Law Section), the lack of bar-established committees on diversity and inclusion in such states where minorities have such significant barriers to inclusion demonstrates why prioritizing diversity at an organizational level matters.
We are fortunate to live in an era when minority attorneys have made significant and prominent strides in our practice and in our government. Our president is an African-American and a graduate of Harvard Law School. Our attorney general is the second African-American to hold that position and the second woman. And it is possible that later this year will elect our first woman president, also a law graduate. Nevertheless, the legal profession still has a diversity problem. It remains to be seen whether the ABA’s 2010 recommendations on diversity and inclusion have begun to remedy the problems. However, there can be no doubt that the profession has benefited from the creative and proactive steps that some bar associations have already taken in six years. Hopefully their successes will prove to be a model for the rest of us.
About the Author
Nicole Ducheneaux is a partner with Frederick Peebles and Morgan LLP in Omaha, NE, focusing her practice on Indian tribal economic development, gaming, corporate law, construction law, tribal housing, and litigation.