Minorities Can And Do Succeed At Large Firms - DuPont's Experience vs. Sander's Article

Editor's Note: An article published by UCLA Professor Richard H. Sander in the North Carolina Law Review in May 2006 has touched off controversy. The article, entitled The Racial Paradox of the Corporate Law Firm, maintains that "corporate law firms generally use aggressive racial preferences in hiring and recruiting blacks, and use preferences for Hispanics to a measurable, but somewhat smaller and less consistent degree." (p. 1758). The article goes on to conclude that these preferences result in the hiring of minority lawyers who have lower grade point averages than their white counterparts and that this disparity ultimately leads to extreme attrition for the beneficiaries, with very few making partner. Given its long-term advocacy of diversity in the legal profession and its well-known programs aimed at increasing the diversity of its outside counsel, we speak with DuPont about its perspectives on the Sander article and about law firm diversity generally. Also, in the Special Sections on Diversity included in this issue and in our March issue, a number of DuPont Primary Law Firms and Preferred Service Providers provide their perspectives on the reasons for that success.

Editor: Describe the DuPont Model and the roles of DuPont Primary Law Firms (PLFs) and Preferred Service Providers (PSPs).

Sager: The DuPont Legal Model is our shorthand description for a dynamic, multi-faceted and integrated approach to the delivery of legal services. Strategic partnering is the cornerstone of that approach which also includes early and strategic case assessment, reliance on appropriate technology, and the pursuit of continuous improvement through innovation and Six Sigma. Our ten PSPs and 42 PLFs are our strategic partners. (For a list, see page 74.) We refer to them as the "Network" and their collective role is to collaborate with DuPont Legal to achieve three primary goals: (1) high-quality legal representation that produces maximum value; (2) the most efficient use of resources; and (3) cost-effective results.

Romero: Since the focus of this interview is diversity, I note that two of our PLFs are minority-owned firms and that one of our PSPs is woman-owned. Also, while our PLFs and PSPs get over 80% of our average annual spend of $120 million, DuPont Legal also relies heavily on about 30 minority-owned and woman-owned law firms throughout the United States.

Editor: How many of your firms have more than 100 lawyers?

Romero: Twenty-two of our U.S. PLFs have more than 100 lawyers.

Editor: Why does DuPont Legal feel that diversity is so important and why does it select organizations that share that philosophy as PLFs and PSPs?

Sager: DuPont is a global company operating in a diverse world. In the U.S. and elsewhere, our customers, suppliers, regulators and employees come from all races, ethnicities and socio-economic segments of society. So do the judges and juries that adjudicate our cases. It therefore can't be any different with respect to our outside counsel. A demonstrated commitment to diversity was one of the criteria used to select PLFs when DuPont Legal started its convergence process in the early nineties. We believed then that diverse teams produce better results and experience has confirmed that belief. During more than two decades at DuPont Legal, I have seen time and time again how diversity and cultural sensitivity enhance the creativity and effectiveness of our legal teams. Our collective effort to address the childhood lead poisoning issue that disproportionately affects minorities in large metropolitan areas is a classic example. From our perspective, diverse teams deliver the best service to the Company and increase shareholder value. That's why we insist on diversity.

Editor: Let's discuss Professor Sander's article. As you know, the gist of his article is that elite firms focus on grades when selecting new hires because grades are a strong predictor of performance, that firms abandon that focus in order to hire black and Hispanic attorneys, and that the firms' "systematic hiring of minority law students with lower grades produces a regular influx of minority associates who are very often less able [than their white counterparts] and, in other cases, merely perceived as being less able." (pages 1819 to 1820). This ability gap, real or perceived, is a key underlying cause of minority attrition, he says. How do you react to this hypothesis?

Sager: To the extent Professor Sander has documented the high attrition rates and significant under-representation of lawyers of color in the partnerships of large law firms, I applaud his work. However, I disagree strongly with the implication that black and Hispanic lawyers are not advancing at firms because they are somehow less able than their white counterparts - that suggestion is inconsistent with my own experience as a consumer of legal services and unfair both to minority lawyers and the firms that hire them. I spend a lot of time talking to firm managers, and I have yet to meet one who would hire a lawyer he or she did not believe could do the work of the firm and ably represent its clients.

Romero: While I am not an academic and thus cannot systematically critique Professor Sander's methodology, I don't buy his hypothesis. Like Tom, I spend a lot of time with lawyers of all levels of experience and backgrounds. I also served on the hiring committee of a large firm for several years. I must tell you, it came as a huge surprise to me to learn that Professor Sander found empirical data that suggests that grades are the key determinant of both hiring decisions and ultimate law firm success. I think the issue is far more complex than that. In my experience, hiring decisions at many firms are made by committee and affected by many factors, including not only law school grades, but the prestige of candidates' law schools, judicial clerkships, undergraduate achievements, extracurricular activities, candidates' life experiences, the timing of interviews - standards seem to become more stringent later in the recruiting cycle when there are fewer spots left to fill - connections to clients and others important to the employer, and even the mood of committee members on any given day. The ethnic and racial background of a candidate is just one criterion on a long list.

What's more, while I have not conducted an empirical analysis, I challenge folks to visit the websites of a few large firms and take a look at the bios of their minority lawyers. Generally, you will find very well-rounded and accomplished people who attended the most elite schools. As Professors Coleman and Gulati suggest in their response to Professor Sander's article, which was published in the same issue of the North Carolina Law Review, it is likely that firms find lower grades acceptable for graduates of such schools regardless of whether they are minorities or Caucasians. Professor Sander did not, among other things, compare the experiences of those two groups of similarly situated associates to determine whether their attrition and promotion rates differ. I agree with Professors Coleman and Gulati that more study is needed before anyone can legitimately conclude that minorities are not making partner at large firms because they are "under-qualified," and that law school grades are the most accurate predictor of who is "qualified" and who is not.

Editor: Available data indicate that the number of minority partners, and particularly black partners, at large firms is not as high as one would expect, given their representation among new hires during the last decade. To what do you attribute this?

Sager: Again, I believe that hiring processes work well-enough to ensure that all lawyers made offers by large firms have the basic ability and intellect required to serve clients well. But intellect alone, no matter how acute, does not make a good lawyer. Rather, having recruited the best and the brightest, regardless of race, it is then largely up to the firms to provide the formal training, opportunities for growth, mentoring and work environment required to ensure that associates can develop their full potential and want to stay at the firm for the long term. Many - perhaps most - large firms are working hard at this, but falling short. As Mike Nannes, the Managing Partner of Dickstein Shapiro wrote in a recent e-mail to us, the "ability of any attorney, minority or majority, to succeed in a law firm environment hinges upon a number of factors, including: the availability of strong mentors, a highly structured professional development training program that includes skills and client development instruction, and a workplace culture that is conducive to the appreciation of differences and the development of strong professional relationships that cut across race, gender, ethnicity and sexual orientation lines." Each of these factors is, in my opinion, essential to the development of associates into future partners, yet many firms full of smart well-meaning people seem to have trouble addressing them systematically and comprehensively.

Romero: I concur. While I take issue with many of Professor Sander's conclusions, I think his description of the experiences of African-American and other minority associates having trouble attracting mentors, getting less training and fewer assignments (and thus billing less), and being given less responsibility and less client contact is accurate for many minorities at large firms. It is also consistent with the findings of other scholars, including David Wilkins, one of my professors at Harvard Law School. To the extent Professor Sander recommends that firms improve their work assignment and evaluation processes, focus on mentoring, and strive to provide better work-life balance for associates, I second his recommendations. Even with these things in place, however, law firm partnership is not everyone's definition of success, and many talented and hard working lawyers are not going to stick around - at least not absent systemic changes to the way most firms operate. I know significant numbers of lawyers of color, myself among them, who have chosen to leave large firms despite successful careers there. As Monica Parham, an African-American Yale Law School graduate who is a senior lawyer at Crowell & Moring and now leads its diversity efforts, told me recently, of lawyers of color who have left that firm in the relatively recent past, two hold senior, majority staff posts on Capitol Hill, at least four are senior lawyers with Fortune 500 legal departments, and one is pursuing a Masters of Divinity degree. These folks should not be lumped together with the minority attorneys who leave large firms because they become frustrated after four years of document review. One of the shortcomings of Professor Sander's piece is that he does such lumping when advancing his "merit theory." To paraphrase Professors Coleman and Gulati, he paints with way too broad a brush, potentially contributing to the stereotyping that, as he recognizes, already undermines the careers of lawyers of color at large firms.

Editor: Given the issues facing minority associates at large firms, is there anything clients like DuPont can do to enhance their chances of advancement?

Sager: Absolutely. In fact, the diversity literature, including the Sander article, suggests to me that we must do so. The first step is to continue to insist that firms hire, train and promote lawyers of color so that they can be available to represent companies like DuPont. Empowering those lawyers by actually using them - by directing that they be given appropriate responsibility on our matters as junior and mid-level associates and then retaining them as they gain experience - is another. Nothing argues merit like economic power, and there is a lot to be said for efforts that enhance the ability of minority lawyers, who may have fewer corporate connections than their white peers, to develop a book of business. Finally, we as clients can step in at the micro-level and help the firms recruit and mentor promising young associates, including lawyers of color.

Romero: I cannot over-emphasize the importance of client support. One of the factors that enabled me to succeed at a large firm for ten years was the blessing of several firm clients who got to know me when I was a young associate and continued to call on me as my experience and judgment grew. For the benefit of minority lawyers everywhere I note that all of the clients I am thinking of were middle-aged white males - collaboration and respect are possible across differences. But getting back to the point, as in-house lawyers we can and should help outside counsel develop their careers through networking and referrals. Rarely does a day go by when I do not receive a call or e-mail from a colleague at DuPont, a counterpart at another company, or an acquaintance at a firm asking me to recommend a lawyer for a case or participation on a panel. I make it a point of including the excellent minority lawyers I know among the lawyers I recommend. These informal efforts supplement more formal initiatives. For example, each year, we host a conference that brings together minority lawyers at DuPont and minority lawyers at our PLFs, regardless of whether or not they do work for DuPont. One of the key goals of the Minority Counsel Conference is to help our counsel of color get to know each other and develop a nationwide referral network. We also host a similar conference for women lawyers.

Editor: In selecting new PLFs and PSPs, what criteria does DuPont apply to evaluate the sincerity of their diversity efforts?

Romero: Because we do not often add firms, let me answer your question more broadly. As you know, DuPont is a signatory to the Call to Action issued by Rick Palmore, the general counsel of Sara Lee, in 2004 and to the Diversity Statement of Principles advanced by Charles Morgan, then general counsel of BellSouth, in 1999. Given our commitment to diversity and our public undertaking to limit our relationship with firms that do not walk the walk on this issue, we evaluate our firms' efforts on an on-going basis. Continuing improvement in the total number of minority partners and associates is the most crucial data point we monitor, but it is not the only one. We also consider whether the firms have established the infrastructure and instituted the best practices required to advance diversity, whether the most senior firm managers are directly and personally involved, and whether the firms have professional development programs designed to enhance lawyers' satisfaction and retention. We try to judge to what extent the firms are actually thinking outside the box and broadening their recruiting fields; notwithstanding rumors to the contrary, the top ten law schools are not the sole source of talented lawyers. We look at how the firms staff our cases and at whether women and people of color play leadership roles on our matters and in the stewardship of the Company's relationship with their firms. Last but not least, we consider the breadth and scope of the firms' diversity commitment. Do the firms support scholarships and other pipeline programs? Do they support minority bar associations? Do they partner with minority-owned and women-owned firms? It bears stressing that while we consider multiple criteria and take into account geographic location and firm size and business model when evaluating progress, firms must ultimately show results on the numbers or risk losing our business.

Editor: What audit and other tools does DuPont use to measure various aspects of its firms' and suppliers' diversity efforts, including hiring, leadership roles played by minorities and effective use of tools to stimulate diversity? How are the results communicated?

Sager: We conduct a benchmark survey each year that asks the firms and providers about their efforts in a number of areas important to us, including diversity. The survey has evolved over time, but has always included a significant number of questions focused on diversity. In addition to gathering raw demographic data, we also try to elicit information about qualitative issues such as whether women and minorities have served as lead counsel on our matters, whether women and minorities are exiting the firms at higher rates than white males on a year over year basis, and whether women and minorities are among the designated stewards of DuPont's relationship with the firms. We also inquire about the diversity infrastructure and programs of each firm in order to identify best practices. More recently, we have started to ask about our firms' support of pipeline projects, scholarship programs and minority bar associations, about their collaboration with minority-owned and women-owned law firms, and about their use of minority neutrals in ADR. In addition to the survey, we gather information informally. For example, the minority counsel conference and the women's conference help us learn about our firms' diversity performance directly from women and minority lawyers. We discuss diversity with our firms and suppliers in a few ways. The aggregate results of the benchmark survey are generally communicated during the annual meeting of our network each spring. Each firm's record is also addressed during its individual performance review every 12 to 18 months and on an ad hoc basis whenever we perceive a problem.

Editor: What recognition does DuPont provide to its primary firms and providers who are successful in their diversity efforts?

Romero: We are great believers in the positive collective impact of recognizing leadership - in other words, a little competition doesn't hurt. We give several awards each year and diversity plays a role in the selection of all awardees. Our Challenge Awards recognize deserving PLFs and suppliers based on the results of our benchmark survey. To qualify for a Challenge Award, firms must make significant contributions to the goals of the DuPont Legal Model, including diversity. These awards have a monetary component. The Leader's Circle Award is given annually to an individual member of our outside counsel network to recognize leadership in promoting the ideals of the DuPont Legal Model, with commitment to diversity again a factor. The J. Michael Brown Award was created by DuPont in 2001 in recognition of the contributions that Michael, an African-American partner at Stites Harbison and a long-term member of the DuPont legal team, has made to diversity at DuPont and its PLFs. The honor is given each year to a lawyer at DuPont or one of its primary firms or suppliers who demonstrates a personal commitment to the DuPont Minority Counsel Network and a public commitment to diversity in the legal profession. Finally, the Themis Award recognizes a woman in the DuPont network who effectively promotes the professional advancement of women lawyers.

Editor: Are your PLFs and service providers expected to find new tools to enhance diversity?

Sager: Continuous improvement and innovation are among the underlying principles of the DuPont Legal Model and they are as applicable to diversity as to anything else. Many of our firms were among the pioneers in creating diversity committees, hiring diversity consultants, providing cultural sensitivity training, establishing law school scholarships for minorities and employing chief diversity officers. Our firms continue to expand their efforts. For example, a large firm located in a very homogenous state helped create and fund a roundtable program for minority professionals at various firms and institutions throughout the state, in order to expand the circle of support for its few minority lawyers. Many of our firms also recognize that their ultimate diversity is very dependent on the pipeline and are teaming with local intermediate and secondary schools in mentoring programs, supporting charter schools, and starting scholarship programs aimed at diverse students. Please understand that these are only examples.

Editor: As they say the proof is in the pudding. Are African-Americans and other minorities succeeding at DuPont PLFs?

Romero: We believe so. We know for certain that the number of lawyers of color working at DuPont PLFs was over four times higher in December 2005 than it was in 1998 after adjusting for changes in the composition of the network. (The unadjusted data shows that the number of minority lawyers at DuPont primary firms was six times higher in 2005 than it was in 1998.) While the pace of progress at our firms varies widely, we have seen steady progress in both recruiting and retention. With respect to the latter, the progress has been most impressive in recent years. McGuireWoods, for example, has told us that 14% of the associates who made partner at the firm in 2003 were members of minority groups. In 2005 and 2006, that percentage increased to over 20%. This experience is not unique to McGuireWoods. Although the responses to the 2006 benchmark survey are not yet in, we believe that close to half of our large firms, as defined by Professor Sander, now have percentages of minority partners that exceed the national average and that the high is over 10% percent. What's more, minority lawyers have ascended to the highest ranks of some of our large firms. I offer two specific examples: Dennis Archer, an African-American lawyer, has served as Chairman of Dickinson Wright in Detroit since 2002, and Jose Cardenas, who is Hispanic, was the Managing Partner and is now the Chairman of Lewis and Roca in Arizona. Others serve on management committees, as head of offices and as practice group leaders.

Sager: No matter how you slice it, minority representation among our outside counsel has certainly increased during my years at DuPont. Progress could be faster and perhaps more marked, but we are certainly moving forward. I like to think that our long term commitment to diversity, our efforts to drive accountability through the benchmark survey and other means, and our PLFs' and suppliers' support of initiatives such as the DuPont Legal Minority Job Fairs, the DuPont Minority Counsel Network and the DuPont Women Lawyers Network have contributed to that progress.

Published February 1, 2007.