Vol. 43, No. 5

Exiting the echo chamber: The president’s role in diversity and inclusion

by Marilyn Cavicchia

A while back, there was a fad on Facebook where people posted photos of themselves from 10 years ago alongside their photos from today. If the legal profession posted a 10-year snapshot of its progress in diversity and inclusion, it wouldn’t be a very flattering picture, according to Michelle Silverthorn.

In 2009, explained Silverthorn, founder and CEO of Inclusion Nation, 87 percent of lawyers at major U.S. law firms were white, and 67 percent were men. Almost a decade later (in 2018)—after millions of dollars spent on diversity and inclusion efforts—those percentages were 85 and 65, respectively. And things are especially bleak for minority women, she added: Just 1.38 percent of partners at major U.S. law firms in 2018 were Asian-American women, .77 percent were Hispanic women, and .68 percent were black women. (Silverthorn's source for all of these statistics was the National Association for Law Placement 2018 Report on Diversity at U.S. Law Firms.)

“We need to be honest about what’s not working,” Silverthorn told attendees at the 2019 ABA Bar Leadership Institute—and realize that the work that does succeed will be hard and won’t always feel good.

“We make each other uncomfortable,” she said, explaining that diversity creates awkwardness and tension—but that working through this discomfort is what ultimately helps teams solve problems. Indeed, Silverthorn added, diverse teams have been found to process information more carefully, solve problems more effectively, and—according to data from Deloitte—produce 15 times more revenue than those that are the least diverse.

The kinds of challenges that the profession is now facing, such as the rise of artificial intelligence and alternative legal service providers, demand difficult conversation and problem solving, Silverthorn said—which means that inviting diverse perspectives may now be a matter of survival.

On the panel that Silverthorn moderated were: Patricia Jarzobski, past president of both the Colorado Bar Association and the Colorado Women’s Bar Association; Daniel Kotin, past president of the Chicago Bar Association; Jean Liu, president of the Chinese American Bar Association of Greater Chicago; and Carl Smallwood, past president of the Columbus (Ohio) Bar Association and of the National Conference of Bar Presidents.

Generational reasons for change

Demographic changes may soon force bar associations and the legal profession to do the hard work involved with diversity and inclusion, if they are not already doing so, Silverthorn said: Every year since 2010, white children have been the minority in the annual number of births.

And the coming generation is different in other ways, too, noted Jarzobski, who is also chair of a diversity-related joint task force at the Colorado bar and the Denver Bar Association. “The next generation demands diversity and inclusivity,” she said—and if your association doesn’t have them, younger lawyers won’t join.

Kotin said that unless it becomes diverse and inclusive now, “your bar is just going to shrivel up and go away,” to the point where it’s just “12 middle-aged white guys in a room, having a nice lunch.”

‘Listening to an echo of yourself’

Smallwood agreed with Silverthorn’s grim assessment of the legal profession’s lack of progress in diversity and inclusion and said that in his 38 years of law practice, “We have not succeeded in moving the needle even a little.”

Smallwood said he still sees a lot of bar boards and law firm leadership teams who are all or mostly white men in their 50s and 60s. “If that’s who you’re listening to,” he said, “you’re listening to an echo of yourself.”

Part of the problem, too, Silverthorn and Smallwood said, is that even if a person of color or someone who meets another diversity definition is at a bar event or in a position of leadership, they often don’t feel comfortable bringing their whole self to that role. Unspoken rules about dress, hairstyles, accents, and other aspects of appearance and presentation “were decided when a lot of us weren’t even in the room,” Silverthorn said.

Smallwood noted that in the effort to fit in, a lot of diverse lawyers have “had their sharp edges whittled down and filed,” in order to better blend in with the “cliqueish, exclusive” group.

Even a minority bar association can be an echo chamber, Liu said, if the same members keep getting appointed to all the leadership roles while others are overlooked. A discussion of changing her bar’s bylaws to encourage new leadership was initially met with pushback, she recalled.

Official ways to boost diversity and inclusion

What ability does a bar president have to help increase diversity and inclusion? More than one might think, the panelists said—and they urged incoming leaders to use all the authority they have. After all, Jarzobski said, “bars are the standard bearers, the captains for the profession”—and the president should be out in front.

Both Jarzobski and Kotin put a lot of focus on the nomination, selection, and appointment processes and how a president and the bar could use those to foster diversity and inclusion. Through the ACT (Appoint Critical Talent) Now initiative, Jarzobski said, the CBA is “completely redoing the selection process” by building the pipeline and reaching out to diverse lawyers who may be interested in leadership.

The president must act as a leader, Jarzobski said—and must be bold and decisive when it comes to diversity and inclusion. “If you have the power to appoint, use it,” she advised. “Don’t overthink it. If you’re the president, appoint people of color. Just do it.”

Similarly, Kotin said that diversity and inclusion in officer selection “has to happen almost by force,” to prevent people from continuing to vote for their friends or people who look like them. At the Chicago Bar Association, a nominating committee selects officers and board members, and the full membership then votes on whether to affirm those choices. The nominating committee itself is not an echo chamber, Kotin said, but a powerful tool to put forth diverse candidates.

Smallwood pointed out that many BLI attendees would soon sit down with their bar’s chief staff executive to discuss their plans for their presidential term. Consider making diversity and inclusion a serious part of those plans, he advised. Talk to the rest of the leadership team, too, and do some problem solving: How will leaders make sure that diversity and inclusion are consistently being worked on? How will success be measured? Will leaders themselves commit to reaching out to members who are diverse?

Another way the president can use their official capacity as a way to increase diversity and inclusion, Liu said, is by attending affinity bar events and inviting their leaders to attend your bar’s events. This is something that Liu herself does; it can get exhausting, she admitted, noting that she was scheduled to attend three events that week for bars other than her own. “But it becomes like a referral network,” she added, with the different bar associations sharing ideas and resources.

It’s about leadership

As much as they offered formal ways for presidents to use their authority to help foster diversity and inclusion, the panelists and moderator also stressed the importance of a president acting from personal passion.

“We want diversity to matter because people matter,” Silverthorn said. “Include them because that’s what leaders do.” If the president is visibly committed to diversity and inclusion, she added, other leaders and members will follow them, not because they have to, but because they want to.

Often, Smallwood said, the reason a rank-and-file member takes a step closer to participation and leadership is “because somebody asked me to go.” The president can be that somebody, he said, and can inspire others to do that important work, too.

“You have a wonderful opportunity, right now, to make a difference in your communities,” Smallwood said, adding that it’s especially important that presidents who are white or who are not diverse in other ways step up to help make this kind of difference. Too often, he noted, a lot of responsibility for diversity and inclusion has fallen on lawyers who are themselves diverse.

Silverthorn, too, emphasized the power of the personal invitation—and the importance of the president setting that expectation for themselves and for other leaders.

“I want you to go out,” she said, “and make every single member of your bar feel welcome and included.”

(Note: For more information about bar leaders' and bar associations' efforts in diversity and inclusion, please see "Energy, commitment, and connection: Doing the work of diversity and inclusion," also in this issue.)