The National Task Force On Diversity In ADR - A Pioneering Work In Progress

Thursday, March 1, 2007 - 01:00

Editor: Please tell our readers about your interest in diversity in the legal profession.

Morgan: In 1998, I joined BellSouth as its executive vice president and general counsel. Early on, I looked at the law department of the company and concluded that there was a lack of the appropriate level of diversity. It did not represent society in terms of women and minorities.

I decided that we had to do something about that. The first thing I did was to form a diversity committee of people within the department. We started looking at all aspects of the BellSouth legal department in terms of diversity, including hiring, retention, mentoring, etc. In my first five years I hired 40 lawyers, 32 of whom were either women or minorities and the quality of whose work was top notch. We insisted upon a level of excellence at BellSouth, and we saw that there was no inconsistency between that and hiring women and minorities.

Editor: I understand you were responsible for initiating the Statement of Principle, which urges corporate counsel to insist upon diversity. What prompted this?

Morgan: As we at BellSouth started to get more active in diversity, I began talking to other general counsel about it and I realized there was not an adequate focus on the issue. At the time, law firms did not have diversity as part of their message, nor was there any discussion about diversity. Companies such as General Motors, American Airlines and American Express were engaged in increasing diversity, but they were the exception rather than the rule. I began looking for a way to engage more general counsel in the issue, because I felt that if we could get in-house lawyers interested in diversity, then their outside counsel would come along. To that end, Joaquin Carbonell, who is now general counsel of Cingular Wireless, and I drafted the Statement of Principle.

I then set about sending letters out and making phone calls to the general counsel of America's largest companies, people I had met through the ABA and such. Many of them responded that they were solidly behind the effort, that diversity was something the legal community needed to pursue. By the time I left BellSouth in 2004, we had about 515 signatories to the Statement of Principle.

We initiated related activities. For example, I started inviting a group of Atlanta general counsel for informal lunches. Attendees included in-house counsel from large Atlanta-based companies such as Delta, Coca-Cola, etc. We then invited all the managing partners of Atlanta's major law firms to come and have lunch with us, who came of course because it gave them the chance to have all of us in the same room. At the same time, we could give them the message loud and clear that their commitment to real, quality diversity would be an important factor in our selection of outside counsel. I recall that during the beginning of this process, I had our outside counsel together for a meeting. One of the attorneys raised her hand and asked what would happen if a firm did not "measure up." I responded that she "did not want to know." These gatherings initiated discussions between outside and inside counsel that are still going on today.

Editor: Is it appropriate for in-house counsel to influence outside counsel?

Morgan: Absolutely. It is necessary and appropriate for the leaders of corporate law departments to do as much as they can. We have the power and ability to influence behavior that is in our interest, and we should exercise it. I always try to be positive, because I believe in using more of the carrot and less of the stick. If you are a client, the law firms will give extra consideration to your opinion and your views. The leadership has to come from in-house lawyers.

Editor: What got you interested in diversity in ADR, and why is it so important?

Morgan: I began focusing on neutrals because in recent years ADR has gained importance and prominence. Because many neutrals are former judges and senior partners at law firms who have left their jobs, the neutrals in this country are overwhelmingly white males. My point is that if we think diversity is good because having people with different points of view is good, then it is likewise very important to have neutrals with different points of view. My definition of diversity is not limited to gender or race; it also refers to a person's life experiences. There is most definitely a benefit of having people from different kinds of experiences in the field of ADR. Imagine if it was required that all neutrals be graduates of Emory Law School: no one would want that. Having only white male neutrals amounts to the same thing.

Editor: What inspired the creation of the National Diversity Task Force?

Morgan: During my first years on the CPR board of directors I began noticing how white men dominated the numerous meetings and gatherings I attended. Inspired to do something about this, I asked the CPR board if they would like to hold a diversity panel at their next annual meeting. They responded positively and the panel was a great success. During the question-and-answer period, a lawyer stood up and asked, "If we increase the number of women and minorities in ADR, how are we going to keep up the quality?"

My jaw dropped. It was at this point I came face to face with the truth: we had (and still have) a long way to go! I realized that much of the legal profession still believes that diversity should be pursued for political reasons, rather than practical ones. The incident was, perhaps, a necessary "a-ha moment."

After this experience, I decided to step up my efforts: I suggested to the board of CPR that a National Task Force on diversity be convened. The board liked the idea, and so I got together with CPR staff member Peter Phillips to work on this. We decided that the task force should include a wide umbrella for neutrals. While CPR hosts the meetings, JAMS, AAA and other neutrals are equally involved in the Task Force. I tend to be an inclusive, rather than an exclusive person, which I suppose is appropriate for someone so interested in diversity!

Editor: What are the immediate goals of the Task Force?

Morgan: We are not going to be able to flip a switch and have the panels of neutrals be as representative as they can and should be, but you have to start somewhere. Thus far, there have been three meetings of the Task Force, which has garnered the attention of some heavy hitters. We have had Dennis Archer on every call. The nice thing about this is that there is so much to do, and whether you are affiliated with ACC, ABA or another organizations, you can further the cause. There is so much work to do that the only way to accomplish it is for people to work together.

Diversity in ADR presents a particular challenge in that in the real world, neutrals are overwhelmingly selected by word-of-mouth. In-house counsel will ask another inside lawyer or outside counsel about who they think they should use, and the people making those recommendations have to know who these people are. By definition, the system works against new entrants to the field. However, if you look at Dennis Archer, I cannot think of anyone else I would rather have on a panel of neutrals. There are good minority and women neutrals: in part, it's a question of getting role models out there, and perhaps encouraging them to take on mentees.

When I get involved in efforts of this kind, I am always encouraged by the amount of interest that is generated. It is a question of shining the light on the issue and saying to people that we are not really as a profession where we should be. The lack of progress in diversity is more insidious than outright racism, because many people believe the problem has been solved, and so they will focus on other issues.

Editor: You point out that many neutrals are retired judges or law firm partners, who, because diversity at law firms is relatively new, tend to be older white men. Might it help to encourage younger attorneys into the field?

Morgan: I believe that younger attorneys can work as neutrals. For example, at the CPR meeting we suggested that members bring younger lawyers to the CPR meetings or invite them to go through ADR training. The experience would certainly help them become better litigators, even if they did not choose ADR as a career. (I am also on the board of AAA and the same thing would apply to them.)

Another way to get women and minorities involved in ADR is to remember that at any mediation, in addition to the neutral, there are also attorneys who represent the client before a neutral. Greater diversity among these attorneys would likely result in an increase in women and minorities entering the ADR field, as such experience would enable a smooth transition into becoming a neutral.

Editor: What can general counsel do?

Morgan: The general counsel of a company has a bully-pulpit within the company as well. At BellSouth, because the women and minority lawyers in the department won the respect of the other lawyers there, people at the company came to realize that diversity is not just a political statement.

I tell general counsel that fostering diversity is part of their duty to the shareholders - it is about good business. I always believed I was doing a great thing for the shareholders because I have zero doubt that greater diversity means a better law department. Once you have experienced the benefits of a diverse law department, nothing can change your mind.

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