So much has been written about racial and ethnic diversity in the legal
profession (or, more accurately, the lack thereof) that General Counsel can
rarely talk with outside counsel about their future relationship without
discussing diversity. Diversity "initiatives" permeate every sector of the
profession. Dennis Archer, the current American Bar Association President, as
others before him, has made diversity in the profession a central focus of his
administration. Similarly, the ABA Commission on Racial and Ethnic Diversity in
the Profession has long worked to create awareness about the lack of minority
representation in the practice. The Association of Corporate Counsel has
developed innovative programs designed to improve diversity, and the Minority
Corporate Counsel Association's extensive resources to enhance diversity in the
profession include a series of "best practices." Additionally, countless efforts
by the Coalition of Bar Associations of Color (the National Bar Association, the
Hispanic National Bar Association, the National Asian Pacific American Bar
Association and the National Native American Bar) have advocated increased
diversity at all levels of the private and public law sectors.
Despite
the valiant efforts of the organized bar and socially responsible buyers of
legal services, diversity in large law firms continues to lag. Why? Because in
large measure we, as a profession, continue to fixate on the
problem.
General Counsel religiously discuss the importance of diversity
with their outside counsel. They inquire about metrics and point out the lack of
minority lawyers working on their matters. They stress the need for improvement,
and they sympathize with the difficulties associated with effectuating
meaningful, sustainable improvement. Rarely, however, are real solutions or
specific strategies ever discussed. That, perhaps rightfully, is left to
individual law firms to figure out.
The firms find themselves in the
predicament of recognizing the problem all too well, but not having the tools or
strategies necessary to sustain meaningful change. The result, not surprisingly,
is a lot of hand wringing, but in the end the status quo remains.
If
large law firms are to succeed at improving their diversity profiles,
acknowledgment and discussion of the problem must be followed by a series of
actions. The actions include: (1) securing leadership "buy-in"; (2)
communicating the firm's diversity commitment to all members of the
organization; (3) establishing diversity/ diversity improvement "goals"; (4)
devising a "strategic plan" for diversity/diversity improvement; (5)
establishing a process for "measuring" success of the firm's diversity efforts;
(6) establishing methods for making firm partners "accountable" for contributing
to diversity efforts and for "rewarding" those partners who contribute; and (7)
setting up systems to ensure that diversity improvement is a topic that is
regularly monitored, discussed and evaluated by firm leadership.
Before
any firm embarks on a mission to improve and foster diversity in its lawyer
ranks, the firm's leadership must be committed to planning, executing and
participating in the diversity initiative. Because of the critical role of
leadership buy-in, this article offers specific strategies for obtaining it
within a large law firm environment.
Experts in organizational change
management profess that for any new organizational initiative to succeed, it
must first have the full support and sponsorship of the organization's
leadership. See, Joseph H. Boyett & Jimmie T. Boyett, The Guru Guide: The
Best Ideas of the Top Management Thinkers, John Wiely & Sons, 1998. As a
practical matter, veterans of large law firm practice can attest that "What the
firm's Executive Committee wants, the firm's Executive Committee gets." In other
words, the firm's leadership must "buy into" the diversity initiative.
Delegating responsibility for the initiative to a minority partner, associate or
even to a "diversity committee" increases the likelihood that diversity will
remain an afterthought in the firm's year-to-year operations.
Obtaining
the necessary leadership commitment is by no means an easy task. As in other
large organizations, inertia is prevalent in large law firms, and embracing
change is not an everyday occurrence. Additionally, the notion of giving more
work to an already busy group of firm executives often is met with great
resistance.
While securing leadership buy-in can be a daunting task, it
is not an impossible one, and, indeed, may not be as difficult as one might
expect. The key to securing buy-in from firm executives (and, for that matter,
other members of the firm) is to articulate the connection between diversity and
the law firm's business objectives.
While the business case for diversity
will vary from one law firm to another and even from one executive to another,
the overall business case must be well thought out and clearly understood by all
firm leaders.
What is the business case for diversity in large law firms?
Several themes have emerged. Some firms take the altruistic "human resources"
approach to articulating the business case for their diversity initiatives.
These firms express a sense of social responsibility in their core business
values and, consequently, achieving diversity is consistent with their business
objective of creating a richer working environment for employees. That is, they
believe diversity to be the right thing to do and therefore the right thing to
do for their business. Ballard Spahr Andrews & Ingersoll, LLP's Diversity
Statement is a good example of a "human resources" approach to articulating a
business case for diversity.
Other firms take a more "functional"
approach to developing their business case. These firms acknowledge that
effectively managing diversity in the workplace allows them to recognize and
appreciate the differences in their lawyers, and leverage those differences to
deliver higher quality legal services. That is, by valuing and successfully
managing lawyer diversity, these firms believe they can attract and retain the
best lawyer talent, thereby increasing productivity, promoting efficiency and
fostering ingenuity within the firm. These firms similarly believe that a
well-managed diverse lawyer force will appeal to broader client base and create
better relations with an increasingly diverse client population. By fostering an
environment that values diversity and inclusiveness, these firms hope not only
to achieve business objectives, but also to garner a competitive advantage in
today's legal services marketplace.
Still other firms take a far more
"pragmatic" approach to developing their business case for diversity - they seek
to improve diversity because their clients ask them to. Large law firms are
coming under unprecedented pressure to demonstrate progress in their diversity
efforts. The now legendary "Diversity Statement of Principle," developed by
Charles Morgan of BellSouth and signed by over 300 General Counsel around the
country, tells large firms very clearly what clients want and expect in terms of
diversity. Any firm that needed more clarity surely got it from no-nonsense
General Counsel like Roderick Palmore of Sarah Lee, who gave all his outside
counsel 12 months to demonstrate progress on diversity or lose Sara Lee's
business.
Regular diversity reporting requirements on billing summaries
and requests for proposals are further indicia that diversity matters to clients
in a significant way. Today, many law firms find themselves on the losing end of
RFPs because of their failure to demonstrate a commitment to diversity and/or a
strategy for achieving and maintaining it. The possibility of losing business or
failing to attract new clients because the firm is not diverse is, no doubt, a
powerful motivator.
As if the prospect of losing business were not
enough, the prospect of losing the business may be the next theme to emerge as
law firms devise business cases for diversity. Recently, the Equal Employment
Opportunity Commission published a report entitled "Diversity in Law Firms."
Although the report acknowledges the progress that women and minorities have
made in the profession, it also serves notice upon law firms, and large firms in
particular, that they are now on the EEOC's proverbial "radar screen":
An
examination of the 2002 EEO-1 data on legal professionals in private law firms
has several broad implications for civil rights enforcement. In large, national
law firms, the most pressing issues have probably shifted from hiring and
initial access to problems concerning the terms and conditions of employment,
especially promotion to partnership. In smaller, regional and local law firms,
questions about the fairness and openness of hiring practices probably still
remain, particularly for minority lawyers É
Diversity in Law
Firms, The U.S. Equal Opportunity Commission, 2003.
The legal
consequences of an EEOC charge and/or investigation into the hiring and/or
promotion customs and practices of a large law firm could be uncomfortable, at
best, and possibly devastating. After all, the EEOC's success rate is greater
than 90 percent when it brings a charge against an allegedly offending employer.
Accordingly, staying "below radar" is perhaps another compelling component of a
firm's business case for diversity.
As a practical matter, most business
cases for diversity will consist of a combination of the approaches described
above. Regardless of the rationale, it is incumbent upon the leadership of the
firm to develop the business case and articulate it clearly to all members of
the organization.
A final point should be made vis-à-vis leadership
commitment to diversity. Most large law firms readily claim that improving
diversity in their lawyer ranks is one of their top objectives. Many have
delegated responsibility for the initiative to a newly created diversity
committee. This seemingly sensible strategy is, in reality, particularly
vulnerable to failure. Why? Because well-meaning diversity committees typically
are headed by one of the few minority lawyers in the firm who (if prominent in
the law firm) likely is a successful (and thus extremely busy) practitioner.
This individual may or may not possess the skills, experience or other qualities
necessary to lead the diversity charge (e.g., diplomacy, organizational
familiarity, likability, desire1). Even if the
individual only knows enough to know that his committee needs help, the reality
is diversity committees typically are underfunded, if funded at all, and
typically do not have diversity experts at their disposal or even administrative
staff support. This lack of resources hamstrings the diversity initiative.
Some firms try to avoid these pitfalls by making sure that a member of
the Executive Committee is appointed to the diversity committee as a "liaison."
In this scenario, the diversity committee comes up with a set of recommendations
for the firm to pursue. This approach is better, but only marginally. All too
often, the recommendations are misaligned with the firm's business objectives.
For example, a firm's diversity committee might seek to change attitudes
internally when the firm's business objective is to change the perceptions of
external stakeholders, such as clients and the organized bar, on its diversity
profile. Even assuming the firm adopts the diversity committee's
recommendations, the initiative is typically seen as that of the diversity
committee or the minority lawyers Ñ it is not "owned" by the entire firm and its
leadership, and as a result, is vulnerable to failure.
And so, beyond
articulating the law firm's business case for diversity, real leadership buy-in
requires the Executive Committee to commit to planning and executing the
diversity initiative, itself. That means the firm's management must be
intimately involved in planning the initiative, in coordination with internal
staff and external experts. It also means investing in the initiative and
committing resources to it.2 Finally, it means that
the Executive Committee must be the "champion" of the diversity initiative - not
the diversity committee and not the minority lawyers.
Leadership buy-in
is the block upon which a successful diversity initiative must be built. To
ensure that this block is firmly in place, firms who have not articulated their
"business case for diversity" must do so. Firm executives must set aside
meaningful time to discuss diversity in the firm. They must put pen to paper and
draft or revise a "diversity mission statement" that incorporates the firm's
business case for diversity. As a team, they must take charge of the diversity
initiative and hold themselves accountable for its success. Adequate resources -
money, time, professional and administrative support - should be devoted to the
initiative, and those who contribute to the initiative should be rewarded for
their contributions.
Grappling with the many issues surrounding diversity
in large law firms is no easy task. The present challenge is not defining the
problem, but helping large law firms find effective solutions. By articulating a
strong business case for diversity and committing law firm leadership to
planning and implementing a strategy that originates at the firm's executive
level, the foundation can be built for a diversity initiative that will succeed.
Because failure, regardless of the reason, is no longer an
option.1 For several reasons, a minority partner
may not be interested in serving on, let alone leading, a diversity committee.
Despite this lack of interest, the minority partner who is asked by the firm's
leadership to take on such a role will do so: (1) to please the leadership, (2)
to present himself as a "self-respecting" minority lawyer, or (3) because he
realizes that no one else will take on the role. For these reasons, assuming
that minority lawyers want to lead diversity initiatives is a mistake.
Regardless of race or ethnicity, the individuals leading diversity initiatives
must genuinely want the responsibility, or the initiative will
suffer.
2 For example, a new trend among
national law firms is the hiring of a full-time "director" or "manager" of law
firm diversity, who assists in developing and executing the firm's diversity
plans and reports directly to the firm's Executive
Committee.
Published February 1, 2004.
