By Hailey Hoyt
In the modern law firm, professional inclusivity should be a standard practice. Unfortunately, at this point in time, even with heightened awareness and expectations of diversity, firm demographics remain largely unchanged from a decade ago. Despite the longstanding, stagnant nature of firm demographics, sheer practicality now demands that firms diversify or be left behind. Firms that have improved diversity benefit from a level of innovative thinking and varied perspectives that allow them to be stronger advocates for their clients from all walks of life. This allows them to represent their clients in a way that non-diverse firms simply cannot offer. If firms choose not to partake in real efforts to diversify, especially with general counsels becoming increasingly attuned to the benefits of diversity, firms risk losing business, or even malpractice, by failing to provide competent legal work.[1]
Even though businesses have begun to demand firm diversity, and the legal profession has an obligation to provide robust representation, the makeup of the legal profession remains dismally homogenous. As of 2020, the American Bar Association (“ABA”) has recorded that 53.3 percent of law students are women; however, only 37 percent of lawyers are women.[2] Only five percent of lawyers are Black, and this number has remained unchanged for ten years.[3] Similarly, five percent of lawyers are Hispanic, only up one percent from a decade earlier.[4] Two percent of lawyers are Asian, which has only increased 0.4 percent in a decade.[5] Lawyers who identify as LGBTQ+ only represent 2.99 percent of the legal profession. The least represented group, lawyers who have disabilities, makes up only about 0.55 percent of the legal profession.[6] Overall, the legal profession is 86 percent white and 63 percent male.[7]
Since diversity is rapidly becoming recognized as imperative to obtaining the most comprehensive legal solutions, courts may begin to consider the lack of diversity to be malpractice under the Model Rules for Professional Conduct 1.1, the “Competence” standard.[8] The rule states that “a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[9] By law, clients are entitled to the best representation possible; diversity enables firms to more effectively analyze issues and present creative solutions, understand the marketplaces in which clients engage, and culturally connect with clients from all backgrounds to best serve them. This is largely due to the fact that diverse legal teams will be comprised of a wide range of social and ethnic backgrounds that can provide varied thinking and client-oriented solutions. Firms that do not have diverse legal teams may not meet this high bar, which can result in lost business, poor public image, and in extreme circumstances, will invite clients to raise malpractice claims against said firms.
In response to the obvious gender and ethnic disparity in the 2020 ABA report, Robert Carlson, ABA president, suggests that “using metrics to encourage fairness will lead the way to better employment practices and greater diversity, which will benefit the entire legal profession.”[10] Benefits include more innovative legal ideas, opinions, and strategies that will assist firms in providing the best representation and fulfilling their competence duty to their clients.
The Legal Implications of Diversity in the Legal Field
Although there are many socio-economic factors that impact firms’ ability to diversify the legal profession, such as the prohibitive monetary and opportunity cost of law school, firms are not under enough pressure to overhaul their longstanding models of operation to create fast, lasting change. But, in response to ABA statistics and growing client demands, a majority of firms of all sizes and prestige have started to offer some form of diversity initiative, committee, or awareness campaign. For example, Latham & Watkins LLP presents a robust commitment to diversity through a Diversity Leadership Committee that seeks to create a workplace where the “best and brightest attorneys from all groups, including those traditionally underrepresented in the legal industry, excel and find opportunities” to become leaders in the legal field.[11] Latham & Watkins explains that the firm achieves its diversity goal through programs and initiatives such as global affinity groups, recruiting programs, and, in 2020, more than doubling diversity scholarships from eighteen to forty students.[12] In 2020, Paul Hastings partnered with The Minority Corporate Counsel Association (“MCCA”) to partake in a series of case studies in hopes of improving diversity in the legal workplace.[13] However, programs like these are still failing to create meaningful change toward a more diverse workforce.
Many assume a general fear of discriminatory practice suits, or a bad reputation, could drive firms to create meaningful change. There have been numerous discrimination cases filed against firms over the years by minority employees due to discriminatory hiring practices, promotions, and pay. For instance, in Bilow v. Much Shelist Freed Denenberg Ament & Rubenstein, 277 F.3d 882 (7th Cir. 2001),Bilow, a partner, sued her firm for failing to provide her with adequate staffing when compared to the male partners. In Young v. Covington & Burling, 736 F. Supp. 2d 151(D.D.C. Sept. 9, 2010), Young, a Black staff attorney, accused his firm of assigning Black employees to staff attorney positions before implementing a policy that prohibited staff attorneys from receiving any promotions. In 2020, six female attorneys at Jones Day filed a suit against the firm for “systemic discrimination based on gender, pregnancy, and maternity.”[14] Their complaint alleged that the firm presented less opportunities for mentorship, pay, and promotions for women as compared to men in similar positions. These allegations are contrary to Jones Day’s diversity statement which promises to mentor and promote minority groups and provide the “best possible guidance, resources, and support for every lawyer.”[15]
A key trend emerges when examining these cases: all were decided in favor of the employer. According to Nancy Levitt, a professor at the University of Missouri School of Law, Title VII has provided minorities some protection in the hiring process, but it offers little support once they are in the door.[16] The threat of lawsuits provides little incentive for firms to diversify seeing as Title VII is failing to provide substantial protection.
Business Implications
Unfortunately, current diversity initiatives that frame diversity as a social good are failing to manifest actual change. However, business motives can be the solution to drive firms to hire and retain diverse employees. Tiffany Lee, a partner at Holland & Knight, LLP, explained that “diversity and inclusion can be a key aspect of a law firm’s competitive advantage when it comes to recruiting and retaining talent and pitching certain clients. Clients receive the highest quality service when their legal teams are drawn from professionals mirroring the vast diversity of the marketplace.”[17] Robin Wofford of Wilson Turner Kosmo LLP, and chair of the National Association of Minority & Women Owned Law Firms, holds that “unique backgrounds help to ensure that a 360-degree approach is used to analyze each issue,” and “having a diverse legal time helps to eliminate the possibility of bias affecting [the] final decision.”[18] Lee and Wofford illustrate that by incorporating diversity into firm culture, clients will receive higher quality services because a diverse team brings wide range of experiences and perspectives to the table when crafting legal solutions. Diversification allows legal teams to ask better questions, develop better analyses, foster more creative solutions, and consider more factors that may get overlooked or dismissed by a team with less diverse perspectives. Consequently, clients will benefit from more well-rounded representation and diverse firms are more likely to gain repeat business.[19]
Corporations Causing Waves of Change
Companies realize the positive impact legal diversity has on their businesses. As of 2019, more than 150 general counsels from America’s largest companies signed a letter to the largest law firms condemning lack of diversity in their firm settings and applauding “those firms that have worked hard to hire, retain, and promote to partnership this year outstanding and highly accomplished lawyers who are diverse in race, color, age, gender, gender orientation, sexual orientation, national origin, religion, and without regard to disabilities.”[20] Moreover, the letter asserted that the general counsels will only work with “those law firms that manifest results with respect to diversity and inclusion, in addition to providing the highest degree of quality representation.”[21] By directing their legal affairs to diverse firms only, general counsels indicate that they understand that improved diversification has a material effect on their legal outcomes.
Similarly, law students are getting involved in this wave of change. The University of Southern California’s (“USC”) Jane Bolin Project, namesake of the first Black woman appointed to serve as a United States judge in 1939, was created in 2019 by USC Gould students with the goal of initiating tangible change in law firm diversity. Under the direction of esteemed law Professor Susan Estrich, the project addresses the gross inequalities of women and minorities in the legal profession. The project campaigns to increase diversity in law firms by asking America’s largest companies’ general counsels to sign a diversity pledge, which reads:
The team of lawyers who work on this/all matters must be inclusive and diverse. The ABA defines diversity to include gender, race/ethnicity, LGBTQA+ identification, and disability status. Half of the partners leading any case, and half of the team as a whole shall, absent extenuating circumstances, be diverse.[22]
By requesting that general counsels retain firms with 50 percent inclusivity, the Jane Bolin Project levies a financial incentive for firms to address inequality. The goal is to pressure firms to diversify or risk losing some of their biggest clients. This method will work better than traditional social or moral pressure for one simple reason – money talks. Furthermore, if firms increasingly adhere to diversity demands, a new equitable standard will be established, and a certain level of diversity will be imperative to maintaining a reasonable standard of care for clients. If firms do not partake in real efforts to diversify the legal world, they will miss out on innovative thinking and more holistic approaches to complex legal issues reflected by diverse perspectives, which clients and general counsels now expect.
Conclusion
Changing the diversity narrative from an idealistic societal vision, to a practical, financially-driven scheme will cause firms to make real change. With programs like The Jane Bolin Project and individual general counsels pressuring firms to diversify or lose out on business, firms will be more incentivized to truly diversify at all levels, thereby ensuring long standing reform. Moreover, this change will incite a cultural shift in client expectations by including diversification in the competence standard for firms, resulting in the legal threat of malpractice for firms that fail to diversify. Diversification is not just a moral or social good, it is an essential aspect of modern business and the legal field should be no exception.
[1] Model Rules of Prof’l Conduct R. 1.1 (2020).
[2] 2020 ABA Profile of the Legal Profession, AMERICAN BAR ASSOCIATION (July 2020), at 32, 82, https://www.americanbar.org/news/reporter_resources/profile-of-profession/.
[3] Id. at 33.
[4] Id.
[5] Id.
[6] Id. at 39, 40.
[7] Id. at 32, 33.
[8] General Counsel Pen Open Letter on Diversity: What Happens Now?, Harvard Law School Center on the Legal Profession, The Practice (May/June 2019) https://thepractice.law.harvard.edu/article/general-counsel-pen-open-letter-on-diversity/.
[9] Model Rules of Prof’l Conduct R. 1.1 (2020).
[10] New Study Finds Gender and Racial Bias Endemic in Legal Profession AMERICAN BAR ASSOCIATION (Sept. 6, 2020), https://www.abajournal.com/files/Bias_report_news_release.pdf.
[11] Diversity, Latham & Watkins LLP, https://www.lw.com/AboutUs/Diversity (last visited Oct. 17, 2020).
[12] Id.
[13] Paul Hastings Case Study Series, Minority Corporate Counsel Association (2020), https://www.mcca.com/resources/case-studies/.
[14 ]Tolton v. Jones Day, 2020 WL 2542129 (D.D.C. May 19, 2020).
[15] Diversity, Jones Day, https://www.jonesday.com/en/firm/diversity?tab=thecommitment (last visited Nov. 17, 2020).
[16] Nancy Levit, Lawyers Suing Law Firms: The Limits on Attorney Employment Discrimination Claims and the Prospects for Creating Happy Lawyers, 73 U. Pitt. L. Rev. 72 (2011).
[17] Diversity in Law: Who Cares, AMERICAN BAR ASSOCIATION (April 30, 2016), https://www.americanbar.org/groups/litigation/committees/diversity-inclusion/articles/2016/spring2016-0416-diversity-in-law-who-cares/.
[18] Id.
[19] Id.
[20] General Counsel Pen Open Letter on Diversity: What Happens Now?, Harvard Law School Center on the Legal Profession, The Practice (May/June 2019) https://thepractice.law.harvard.edu/article/general-counsel-pen-open-letter-on-diversity/
[21] Id.
[22] Jane Bolin Project, https://www.janebolinproject.org (last visited Oct. 29, 2020).
