For 10 years, the Institute for Inclusion in the Legal Profession (IILP) and others have been researching and working on ways to better understand why talented minority attorneys find it difficult to succeed in law firms, and therefore leave. Data from the National Association for Law Placement (NALP) over the past 20 years shows that the process has been slow for minority attorneys, especially at the partnership level among law firms. According to NALP reports, the overall minority partner percentages have improved slightly from 1998 until today—from 3.25% to 8.42%. Surveys suggest that minority attorneys lack access to key mentors and sponsors, which are essential to their growth and development, and that bias may be a contributing factor.
In May 2017, IILP published “Competing Interests III—Taking Action to Make Diversity and Inclusion a Reality,” part of its series of publications to provide corporations and law firms with research and data on diversity, and specific recommendations on how best to improve diversity and inclusion in the legal profession. This paper offers practical and tested solutions to improving diversity and inclusion in corporate law departments and law firms based upon the authors’ collective diversity experience of over 100 years. It outlines action steps that improve the relationship between the client and law firm while also developing minority talent with more precision and focus.
IILP believes that law firms must share the responsibility to develop minority talent with corporations because it is in their collective best interest. The first recommended action step calls for corporations to request minority attorney biographies from their panel and “go-to” law firms, and the second step is to assign minority attorneys to new and existing matters. (In February 2019, IILP began surveying corporate law departments about the racial, ethnic and gender demographics of their outside legal spend, and plans to publish a report in 2020.) These action steps would provide corporations with the names and profiles of minority attorneys working for their approved law firms, and it would seemingly support the “business case for diversity.” Corporations could also play a direct role in educating minority law firm attorneys about their businesses and related legal needs. With this added assistance, minority attorneys will perform at a higher level, thereby increasing their likelihood of establishing important internal and external mentor and sponsor relationships. This type of collaboration can also reduce unconscious partner bias and improve the law firm experience of minority attorneys.
A number of corporations have followed IILP’s recommendations. However, to the surprise of many D&I advocates, while some law firms welcomed the opportunity to send bios and introduce their minority attorneys to their clients, many firms resisted. Some law firms expressed reservations that 1) by providing this information, clients may hire away minority talent; 2) after hiring away talent, clients will ask firms for minority attorneys to be staffed on their matters, and 3) the request might even impinge on the privacy rights of their attorneys. (Note that law firms are aware of ABA Resolution 113, supporting the Model Diversity Survey requesting uniform data on women and minority attorneys at law firms). In contrast, few minority attorneys would object to clients having their bios or working for clients who support diversity initiatives.
The reluctance of firms to follow the suggested recommendations cannot be explained solely by the fear of losing minority attorneys. Are firms really concerned about minority attorneys leaving, or just a select few that have “long-term potential?” If the latter, how do firms communicate with high-potential minority attorneys about their chances for success? Are there other reasons, such as concerns about putting the client relationship at risk because the attorneys have not been properly trained, or about staffing minority attorneys on important client matters who might later leave?
To better understand the minority attorney experience and the suggested recommendations, which are designed to reduce the attrition rate and deepen the overall talent pool, three surveys are worth noting: 1) Minority Corporate Counsel Association report titled, “Sustaining Pathways to Diversity: The Next Steps in Understanding and Increasing Diversity and Inclusion in Large Law Firms;” 2) “Harvard Law School Report on the State of Black Alumni II 2000-2016;” and 3) ABA/MCCA report titled, “You Can’t Change What You Can’t See,” September 6, 2018. For example, the HLS Report asked African American graduates to talk about their law firm experiences on a 7-point scale with 7 being the most important. They ranked their need to “develop a style that makes whites feel comfortable” at 5.6; facing significant discrimination in the workplace at 5.7; and 53% reported, “being the subject of a racist remark at least one time while in the workplace.” (HLS Report, pp. 61-63.)
The surveys suggest that minority attorneys continue to leave law firms because they: 1) lack opportunities to work on important matters; 2) have difficulty finding mentors; 3) are subject to negative workplace experiences; 4) do not have the same opportunities for success as their white peers, and 5) cannot develop a sufficient “book of business” needed to become and remain a partner. A general sense of distrust also is prevalent. For example, it is common for minority associates to be told they are doing “level-appropriate work,” only to receive a message at their next review to look for another job. This prompts minority attorneys to leave firms before they get the “message.”
Law firms need to be mindful of the concerns expressed by minority attorneys in the surveys, which are the reasons that many of them leave. Is the performance feedback provided to minority attorneys free of bias that can impact how advice is given by partners, and received by them? Despite what is said during reviews, minority attorneys often believe that because of perceived partner bias, realistically, they can do nothing to get staffed on an important matter or to address other partner concerns. To reduce bias, law firms must consider how to provide feedback that is transparent, objective, constructive, and that will motivate attorneys to reach their potential so they can attract those powerful mentors and sponsors. To build trust, law firms should engage with minority attorneys early on, and discuss their short-term and long-term career goals. Minority attorneys would benefit from understanding what skills are needed to excel in a particular practice group, and how to acquire those skills. They should receive constructive feedback at the end of each assignment that includes specific examples on how to improve and be invited to voice any concerns about the quality of the training they receive.
The proactive strategies noted below that involve both law firms and corporations are designed to improve the minority attorney experience and reduce their rate of attrition and to improve law firm/client relations through their efforts to make the profession more diverse and inclusive.
Supervising Law Firm Partners/Attorneys
- Teach first, mentor second, and sponsor third. Focus initially on teaching and explaining the client’s business objectives and legal needs to minority attorneys, and your needs as the relationship partner or rainmaker;
- Develop a client service plan, and set expectations around it; and
- Offer minority attorneys active roles in case management, such as participating in client meetings and calls, making presentations, or preparing client alerts.
In-House Counsel
- Request minority attorney bios, post them internally by area of expertise, and consider using the “Rooney Rule” when engaging outside counsel;
- Be an informal mentor by offering insight into the company’s legal or business strategy;
- Request minority attorneys to host a webinar or conference call on hot legal topics;
- Encourage minority attorneys to visit the client;
- When in town, use the opportunity to meet with minority attorneys;
- Meet with rainmakers to reinforce that using minority talent will not negatively impact the relationship, but actually may enhance it.
By proactively implementing the recommended strategies, corporations and law firms will be taking positive steps to improve the likelihood that minority attorneys can reach their potential, and that they will credit their success to the firm and its clients. If law firms remain hesitant to implement the suggested recommendations, we will never know if it works as well for minority attorneys as it does for others.
About the Author
Macey Russell is a partner at Choate Hall & Stewart LLP in Boston. He is a member of the Advisory Board of the Institute for Inclusion in the Legal Profession (IILP). Contact him at mrussell@choate.com.