TIPS 75th Anniversary
The Brief
Fall 95

The Importance of Being Diverse

by Barbara E. Hermansen

Barbara E. Hermansen is a partner at Schiff Hardin & Waite in Chicago. She serves as the partner in charge of professional personnel.
A bulletin from the United States Supreme Court:
Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it from many of the occupations of civil life. . . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the creator.
Thus wrote Justice Joseph P. Brady in his concurring opinion to the Court's 1872 denial of Myra Bradwell's petition for admission to the Illinois Bar.

The Court of that era did not limit itself to defining womanhood. It also had imposed race-based restrictions when, sixteen years earlier, the Supreme Court told Dred Scott, a black man, that he was not a citizen of Missouri within the meaning of the Constitution of the United States and therefore not entitled to sue in its courts to establish that he was a free person.

When that era is used as a starting point, it is clear that times have changed, but change has followed a long, slow path. Despite her rejection by the Court, Myra Bradwell eventually became an honorary member of the bar, and she continued her highly successful and influential career as editor and publisher of the Chicago Legal News. Women did not begin to make significant inroads as practitioners of the legal profession, however, until almost one hundred years later. In 1970, they comprised five percent of all lawyers and about ten percent of the law student population. Now, the numbers have increased fivefold: a quarter of all lawyers are women, and almost half of law students are women. However, only ten percent of partners in the nation's law firms are women, and the number of women partners is increasing only one percent a year. Equally disturbingly, half of women lawyers entering law firms today will leave within five years.

Dred Scott and his family were not afforded the protections of citizenship under the United States Constitution until the Emancipation Proclamation issued, the Civil War was fought, and Congress enacted the 13th and 14th Amendments to the Constitution. Minority citizenship in the legal profession also has been elusive and difficult. Using the same one-hundred-year yardstick, by 1970 only two percent of lawyers were minorities. Now, more than twenty years later, the number has barely doubled. Fewer than five percent of all lawyers in the country are minorities, and in the 250 largest law firms in the country, only two-and-a-half percent of their partners are minorities.

Why care about diversity?
Why should law firms care whether or not they are diverse in terms of race, ethnic group, and gender? First and most important because it is right. Although it is a complicated equation, at least part of the reason that large law firms are still predominately white male institutions is because of the persistence of at least the remnants of attitudes expressed in Bradwell v. Illinois and in Dred Scott, Plessey v. Ferguson, and their progeny. There simply is no place in today's world for hiring and advancement decisions that are based in any degree on unfair stereotypes and generalizations.

Second, mostly white male law firms practicing in an ever more diverse business community will be out of touch with issues in areas of concern to their client base. Such firms will be dinosaurs, lumbering into the twenty-first century but ultimately consigned to the same fate as their prehistoric precursors.

Third, it makes economic sense. Clients are making it known loud and clear that they want to send their matters and money to firms with a commitment to diversity. Companies like Wells Fargo Bank, based in California, are leading the way. Wells Fargo encourages the hiring of minority counsel and requires regular reports to be filed by its outside counsel identifying the efforts of minority lawyers on its matters. Wells Fargo also encourages its non-minority outside counsel to form joint ventures with minority firms to handle the bank's matters.

Former Attorney General Benjamin Civiletti offers a baker's dozen of reasons why law firms should hire minorities:

  1. Minorities are very good lawyers, and we can't afford to miss very good lawyers.
  2. Minority business owners want to see fair opportunity when they seek legal counsel.
  3. Government clients state, local, municipal demand fair employment compliance.
  4. Factfinders judges, juries, administrative hearing officers are minorities.
  5. Administrative agencies and the people who work in those systems are minority employers.
  6. Minority lawyers in your firm can access referral relationships that may otherwise build elsewhere.
  7. Diversity in your ranks creates a positive public image for your firm.
  8. Majority clients who are sensitive to diversity for a variety of reasons, such as minorities in their work forces or their target markets, will respond to your commitment.
  9. It will appeal to majority clients who expect you to do the right thing.
  10. Cultural diversity among your lawyers is important to your international clients in the Far East, Latin America, Africa, and Europe.
  11. Hiring minority lawyers will enable you to develop new expertise in new fields, some of which particularly relate to minority knowledge and expertise for example, a communications satellite network for Africa, a minority distribution system.
  12. It will help you attract and retain support staff from minority pools and the cost of turnover can be three times the annual salary for a given position.
  13. Minority lawyers want to achieve, and their motivation and their desire have an enormous positive effect on your firm.
How to become more diverse
The easy part is to decide it is important and right to be diverse. The more difficult part is to figure out how to do it.

Top management of the firm must be involved. The message must be sent from the highest ranks of the firm that diversity matters and that it be given a priority. It is important for a firm to set its own goals, to share ideas with other like-minded firms, and to monitor its progress periodically.

Many bar associations across the country have issued minority hiring and retention statements of goals and have challenged firms, corporations, and governmental bodies to increase their minority hiring by certain percentages over a specified number of years, and to work to advance those attorneys to partnership or management positions. Signing such a statement will help to keep the focus on the issue, and periodic surveys of progress and monitoring will help keep this effort from being put on the back burner. Such attention is particularly crucial when firms are downsizing or suffering other recession-based pressures, but it also provides great opportunity as the recession in various areas ends, and hiring is picking up in revitalized practice areas.

Recruiting practices should be scrutinized and overhauled where necessary. It is important that a firm's recruiting committee be as diverse as possible. Send the message through the people who interview that diversity is important. Go through interview techniques with interviewers, counseling them on appropriate and inappropriate questions, and give them confidence in their interviewing skills. Interview at law schools where there are large percentages of minority and women students.

Look for other indicators of excellence than the traditional grades and membership on publications: look for community service and work experience. Those who have studied the issue say that minority law students' law school grades often are much better by their third year of school, so keep open the opportunity to consider third-year students. Use summer programs or part-time work during the school year as a basis for evaluating candidates.

Let minority students know you are interested. Contact minority student groups and placement offices well before sending your interviewing teams on campus to interview. Ask professors at law schools for their recommendations of minority students whom they think would be assets to your firm. Look for minority clerkship programs through your local bar association and for scholarship programs through your bar associations and law schools.

Consider going back one step, to the college level. The University of Illinois has begun a Minority Access Program, which this summer is conducting its fifth year of matching undergraduate minority students with Chicago law firms. The students spend four weeks at the University's College of Law obtaining a basic introduction to the law, and then four weeks interning at law firms. The program provides a taste of the practice of law to students who think they are interested in the field, and it gives the firms that participate a leg up on recruiting them. So far, a fair number of the undergraduate students who have participated in the program are attending or have been accepted at law school.

Firms cannot stop with recruiting. Retaining minorities and women is as important as recruiting them. Distressingly, attrition rates are higher for women and minorities than for the general lawyer population. Attrition is expensive, in terms of both dollars and morale.

Again, the management of the firm should set the tone in order to keep and advance minorities and women. Encourage and support lawyers who serve as role models. If a young lawyer sees someone successful at her firm whom she wants to and thinks she can be like, she is a step closer to achieving that goal for herself. Mentors are crucial, but there are mixed views regarding whether to establish a formal mentor program. Mentoring works best when it happens naturally: when people work together and like each other, and the senior person takes the junior person under her (or his) wing. Natural mentoring includes working lunches, dinner together when people are working late, and the opportunity for more than work-based conversation, including career advice and exposure to clients. The literature says that mentors pick out someone who reminds them of themselves, which suggests a problem if you are not a 6'2" blond male. There is also some concern that mentoring by men of young women associates can lead to misperceptions by wives and colleagues and to sexual harassment claims, but this additional roadblock in the path to success for female associates can be hurdled by open and straightforward communication.

It is important that minority and women associates are not isolated. All new lawyers feel stress, but being or feeling "different" can add to the stress. Encourage participation in women's and minority bar groups and committees, and support the activities of those groups through scholarship contributions, attendance at dinners, and fundraising participation.

Assign minority and women associates the firm's best secretaries. Having an experienced, talented, team-playing secretary can sometimes mean the difference between success and failure.

Be flexible with work options for women who have young children. Otherwise, you are doomed to lose them. It will pay off if you "hang in there" for them, as they will hang in there for you, too. Do not view part-time or flex-time requests as indicating a lack of commitment, but recognize the need to accommodate family responsibilities. Now those family responsibilities are not just for women; there are many two-career marriages, and some men have serious child-care and family responsibilities.

Raise the sensitivity of all firm members through diversity training. Do not host events or go to clubs that discriminate on the basis of race or gender, and make clear your firm-wide intolerance of any discrimination.

Overcome the urge to deny that problems might exist at your firm. Do not assume that because you hear no complaints of blatant bigotry, your firm does not have a racial or gender "problem." Listen to the stories: of black female associates who arrive at depositions and are presumed to be the court reporter, of black male associates at work on weekends who are mistaken for messengers, of Asian-Americans being told that they speak English very well, or of women who feel it is presumed that they cannot travel or work on big cases because they will not be able to put in the hours. Follow up on the whispers you hear about the partner who never lets a female associate take the deposition or go to court but is happy to have her review documents and prepare briefs.

Inspire associates to take charge of their careers, to be a little pushy, to develop specialties, and to work hard to be the best lawyers they can be. Encourage them to take advantage of what makes them different and to get as much as they can from each assignment they take on. Encourage them to seek out the good teachers and to ask for help when they need it.

Finally, do not go for the quick fix. Plan a long-term strategy for your firm. Do not be disheartened if your early hiring numbers fall short of your goals. Stay diligent and committed, and build momentum with small successes.