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MANAGING CHANGE: HOW LAW FIRMS ARE ANSWERING THE WAKE-UP CALL

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Diversity in Law Practice: What Are the Issues and Why Does Failure Persist?

Professional development tends to be hard hit in a down economy, when most law firms are focused on the short-term fixes rather than their long-term interests. Any part of a budget that doesn’t directly impact the profits of the firm is at risk. Diversity, in particular, looks to be getting short shrift. This is shortsighted on the part of firm managers, to say the least.

To learn more about the issues in law firm diversity today, I talked with Terri Hartwell Easter. A former CEO of an AmLaw 200 firm, she was one of the first African-American women to head up a law firm. She is now a consultant specializing in increasing diversity in firms. This is a two-part interview in hopes that, as Ms. Easter commented, the information will be a catalyst for some important conversations about diversity in law practice. In this installment, she defines the issues surrounding diversity in law firms.

A lot has been written about diversity in law firms, particularly the lack of it. What are the questions that firms should focus on? And why should firms even care if they have diverse lawyers?

TE: There needs to be honest dialogue in firms that focuses on the real issues for diverse lawyers: Is there a level playing field to grow professionally and advance? Is there a level playing field to develop a profitable practice? And is there a level playing field to participate in the leadership of the firm?

But further, why should firms care? Well, they should care to the extent that they care about providing clients with the best solutions. Having a diverse set of lawyers represents that a firm is able to bring a wide array of ideas, perspectives, creativity and individual style to the strategy and problem-solving work they perform for clients. Diversity in law firms is no different than diversity in any other aspect of life. But law firms do not appear to have a strong value for diversity. They are capable institutions that employ smart people and if there is a value they genuinely believe in, they usually achieve it. That’s my take.

How has the economy affected diversity programs in firms?

TE: I don’t have enough hard information to answer that question definitively, but I can say that I, and many of my diversity consultant colleagues, have seen a significant drop-off in interest in diversity issues. Could it be that investments in diversity are a fair-weather business expense?

I’m also concerned that the massive layoffs in law firms may be having a disproportionate effect on diverse lawyers, since they are often in situations where their hours are lower than their non-diverse counterparts and many firms are using objective measures like hours production to define their layoff targets. I think those kinds of actions in response to the economy also will make recruitment of diverse lawyers tougher when times are better. Many diverse lawyers already believe that a successful career in a private law firm is not achievable, and if they’re going to be the first to be laid off because of low hours, it makes the notion of hanging out in a firm for even a few years questionable.

Given the statistics on minorities in partnership positions, it would appear that diversity programs in law firms have not worked. Is that correct, and if so, why?

TE: I have researched more than 100 law firms’ Web sites to determine their diversity profiles: the number of diverse people the firm had in firm management, in practice leadership and in litigation (if they had a litigation practice). Based on this research, statistics and other reading, I would agree that whatever diversity programs are being employed, they do not seem to be working.

Let me share a story that really brought this reality home to me. About three years ago, I was invited to a meeting that was hosted by a major law firm vendor. The invitees were the top executives—chairpersons, managing partners, executive directors or COOs—of the vendor’s top law firm clients. When I opened the door to the meeting room, I realized that among the 100-plus participants, I was the only woman and the only person of color in attendance. The visual was really striking, maybe anecdotal, but telling nonetheless.

After the meeting, one of the company’s senior executives contacted me to ask if I would work on a planning committee with them over the next year to help improve the attendance by women in the profession. (At the time I was told, by their data, that I was the only African-American in the COO/executive director position leading an AmLaw 200 firm.) When I attended the same meeting the following year, the number of women attendees had noticeably improved, albeit by a handful. Maybe not a giant leap, but I was impressed that the company had been deliberate in placing women leaders on the agenda and also by inviting diverse lawyers in its organization to attend. The experience formed an impression with me about how this organization took affirmative steps, in a serious way, that affected the outcome they wanted to have.

But it was also one of several experiences that leave me feeling that law firms have not figured how to increase the number of minorities. I think the reason why is simple: They keep doing the same things over and over again that don’t work and expecting a different result. The fact is, some of the things firms do are not effective for developing successful non-minority lawyers, either. Law firms do not spend the time to understand the failure chain in their institutions. Sure, many firms will invest in surveys to find out what their lawyers, minority and non-minority, think about diversity—but really, what are the results? Most often, these queries produce embarrassing tales about insensitive statements or deeds that were said or done to a minority or woman. A committee is then formed and a lot of “stuff” happens and czars are appointed, but as the numbers show … little change occurs.

Through my research and career experiences, I have formed a few hypotheses about the diversity problem and how it persists. First, as long as there are no financial consequences to law firms for failing at diversity, they will continue to fail. Second, success should not be measured by the number of young diverse lawyers recruited, but rather by the number who ascend to subject matter expert roles, practice and firm leadership roles by the same standards used for non-diverse lawyers. And third, the success of diverse lawyers is mostly a professional development matter—that is, failure is a continuing danger when we have the following in law firm environments:

 

  • Natural mentoring does not happen.
  • Opportunities to work on the best matters with the best lawyers are not given.
  • The performance standards and success criteria are unclear or absent.
  • Feedback is inadequate or nonexistent.
  • The “one mistake” rule is employed and there is no second chance to improve.
  • Effective skills development is not offered or received.
  • There is no investment in appreciating the talent an individual has—only an appreciation of the talent the individual does not have.

Where these conditions persist, then diverse lawyers will continue to be unsuccessful and they will continue to leave private law practice.

In the next issue: The challenges surrounding diversity in law practice.

DIVERSITY SPOTLIGHT

ANNUAL MEETING ROUNDTABLE: THE ART OF SELF-ADVOCACY.

You’ve advocated for others, now learn how to advocate for yourself. On August 1, during the ABA Annual Meeting in Chicago, the LPM Section Standing Committee on Diversity will lead a discussion on creating a personal career advocacy plan. Self-advocacy puts you in a position to help others—it’s like putting your own oxygen mask on first before assisting others with theirs. Make plans to attend this program.

Marcia Pennington Shannon is a principal in the Washington, DC, attorney management consulting firm Shannon & Manch, LLP. She is coauthor of the ABA book Recruiting Lawyers: How-to Hire the Best Talent.

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