Law firms absolutely want to give each of their associates the types of experiences that will help them grow as lawyers, and law firms absolutely want to retain a diverse group of professionals. We suggest that the best way for a law firm to ensure that it is, in fact, giving everyone the same access to valuable experiences is to mine the firm’s own data—time entries—to doublecheck any anecdotal evidence that the firm’s efforts are working.
Organizations are making an effort to be more welcoming to people of different backgrounds and experiences, having learned that a diverse talent pool tends to produce a better result: after all, if everyone thinks identically, everyone will have the same blind spots. The point of the DEI (diversity, equity, and inclusion) movement, at least from our perspective, is to make sure that people with talent get a fair and equal opportunity to nurture and grow their skills in an environment that appreciates the value that they add. DEI remains one of the hotter buzzwords around. If law firms adopt well-conceived policies to promote diversity in their own workforce and in their vendors’ workforces, those who care about DEI will view those firms as more socially conscious and professionally forward-thinking. If they don’t adopt a strong DEI policy, firms may have trouble meeting their clients’ DEI requirements. Moreover, law students and laterals are smart: firms without strong DEI policies face recruiting challenges. The ethical and market forces in play are more powerful than are any legal requirements for organizations that want to make good on the promise (and reap the benefits) of diversity, equity, and inclusion.
This article examines the current status of DEI initiatives in law firms—primarily in BigLaw—and argues that a data-driven approach to diversity, equity, and inclusion will further the core objectives of firms’ DEI programs. Part I of this article discusses the current state of DEI in law firms, highlighting the easy-to-achieve benefits of DEI initiatives. Part II describes our interviews with chief diversity officers (CDOs) at leading organizations in the legal industry. Part III addresses the biggest negative repercussions of a subpar DEI program. And Part IV proposes a new data-driven analytic schema by which law firms’ DEI programs might be managed, assessed, and resolved.
Although the core tenets of DEI are rooted in the civil rights movements of the 1960s, a modern-day revival comes as our society has had to cope with social and political fissures precipitated by the COVID-19 pandemic and heartbreaking instances of racial injustice. These societal dynamics have also highlighted workplace inequities, causing businesses of all types and sizes to re-evaluate what having a diverse workplace means. Employees with diverse ethnicities and cultural backgrounds, genders, sexual orientations and identification, ages, domestic and professional responsibilities, and religions, as well as people with disabilities and those with other diverse characteristics have been finding greater organizational support for professional advancement. Nevertheless, as with most changes, the current DEI movement has had to endure resistance and overcome barriers from a political, economic, and legal perspective. We witnessed this dynamic firsthand, as the Supreme Court recently held, in a major affirmative action case, that colleges and universities are no longer allowed to use race in admissions. Even though we have our own personal views on the Students for Fair Admission, Inc. v. Harvard University case, the point of this article is not to offer a commentary on the outcome or the implications of that case. Along those lines, we don’t have any idea if that case will eventually lead to corporate diversity programs being litigated as well. For our purposes, We will concentrate on how people are treated once they’re in an organization, rather than on how they got into that organization in the first place. In this article, we’re going to focus on DEI initiatives in law firms that deal with the treatment of lawyers once they’re at the firm, and in particular, on DEI initiatives in BigLaw. And we have a simple premise:
Organizations that want everyone they hire to advance all the way to leadership positions should use data to ensure that everyone gets access to the same caliber of experiences at each level up the ladder.
Most BigLaw firms have DEI initiatives, and we know from first-hand experience that many of those firms have chief diversity officers. Those CDOs are trying hard to help firms attract and retain diverse talent. But CDOs often find themselves under-resourced, even with their firm’s management’s best intentions. Many CDOs already have taken the first step by establishing programs and processes that ensure that the population (both law-trained and non-law-trained) of a law firm is diverse by focusing on the talent-attraction component. But once a law firm attracts diverse talent, CDOs recognize that the job doesn’t end there. It is mission-critical to retain diverse talent, too. Legal industry reports indicate that losing a talented associate costs bigger law firms, on average, $400,000 per associate. That figure doesn’t count the lost revenue that the associate could have generated.
But the cost of an associate’s departure, early in a career, isn’t just the lost revenue or the sunk training costs. There are soft costs. Law students, particularly diverse law students, have little interest in joining a law firm or legal department that fails to hire, train, and promote diverse professionals at the same rate as their non-diverse peers. In today’s social media–focused world, associates are willing to share their experiences—both positive and not-so-positive. They talk to fellow associates and to law students. And when the associate who left says, “I just didn’t feel that I was valued,” there’s a disconnect between a firm that talks the DEI talk and one that actually walks the walk. Talent retention is multi-faceted and hinges upon more than just paying legal professionals well. Indeed, common sense dictates that legal professionals are more inclined to stay at a law firm that affords them equal opportunity in the kind, quality, and complexity of work assigned to them. Young legal professionals want face-to-face interactions with premier clients, the ability to handle marquee work (hearings, depositions, merger negotiations, and so forth), and a clear path to promotion. Our interviews with CDOs revealed that firms are committed to rounding out their legal professional rosters with more diverse professionals, and now, they are exploring ways to provide young legal professionals with the type of work experience that will help them develop as lawyers. Part of a firm’s challenge in taking DEI initiatives to the next level is figuring out how to accurately verify, at scale and in real time, whether the diverse legal professionals are being afforded equal access to high-level work and are included in activities that advance them in their careers. During our CDO interviews, we heard repeatedly that monitoring the quality of assignments is the biggest challenge. CDOs are looking for the panacea that can close any gap between good intentions and real results.
We think that the gap is both real and “findable.” Firms can mine the data to which every firm billing by the hour has access: time entries. Thus, the panacea involves programmatically analyzing time entries using AI-powered software. We don’t know who first came up with the idea that management can’t improve what it can’t measure, but we agree that “checking the box” by having a CDO, even a reasonably resourced one, isn’t enough. A firm should track which associates are getting which assignments and which partners are actually spreading the work around. To retain associates, each one must get roughly the same types of experience to be able to advance up the law firm ladder. Time entries, mined correctly, can make BigLaw a more welcoming place for people of diverse backgrounds.
Progress in diversifying the legal profession has been a fairly recent trend. The demographics of new lawyers show considerably more diversity now than when either of us started at our law firms. But the diversity isn’t evenly spread across all levels of BigLaw.
BigLaw tends to have a pyramid structure, with far more associates at the bottom and fewer partners at the top, though with the advent of artificial intelligence use, we believe that the pyramid structure will morph into a different shape, including (potentially) an inverse pyramid or a diamond-shaped seniority chart. That pyramid structure shows that, at the top of the pyramid, there’s not much diversity at all, according to industry statistics:
In 2021, Black women and Latinas still represent less than 1% of all partners in American law firms, [James] Leipold [former Executive Director of the National Association for Law Placement] notes. And women make up only 25.92% of all partners, while women of color make up just over 4% of all partners.
“The overlap of race and gender is the worst because it’s like a double whammy. We see women of color least well represented,” Leipold says.
The ABA report, relying on NALP data, states that the percentage of LGBTQ lawyers at law firms is also growing slowly, going from 1.9% in 2011 to 3.7% in 2021. But the ABA report cautions that “no reliable statistics are available on the total number of lawyers who identify as LGBTQ in the legal profession overall.” As for lawyers with disabilities, the number is so small ( just over 1% of lawyers at law firms) that NALP cautions it is “difficult to draw any conclusions about trends.”
When we started exploring this topic, we suspected that the DEI initiatives of law firms had to extend beyond a mere headcount of lawyers who are diverse. Our research led us to Bloomberg Law’s DEI framework. Its rating system creates a “listing of law firms that meet or exceed a rising standard for diversity, equity, and inclusion in their firm.” Bloomberg measures firms along these categories:
Bloomberg Law’s 2023 Report listed forty-three law firms that had made the cut. A significant number of BigLaw firms also have signed onto DiversityLab’s Mansfield Rule 4.0. The Mansfield Rule 4.0 “measures whether law firms have affirmatively considered at least 30% women, lawyers of color, LGBTQ+ lawyers, and lawyers with disabilities for leadership and governance roles, equity partner promotions, formal client pitch opportunities, and senior lateral positions.” So far, the firms adhering to the Mansfield Rule have seen:
Again, there’s progress to be celebrated, but law firms acknowledge that there’s still far more work to do before they can attract and retain enough people with diverse experiences to be able to give clients advice from multiple perspectives.
The good news is that law firms are devoting significant budgetary resources to diversity efforts. Most have hired chief diversity officers and a DEI staff. Other BigLaw firms have gone even further—by subsidizing the law school tuition expense of summer associates who are diverse.
Generally speaking, the strides made by many law firms have centered on the “diversity” component of DEI. Specifically, if one were to take a pure headcount perspective of law firm rosters, particularly the junior ranks of AmLaw 200 firms, one would see the diversity of law firms matching the corresponding law school talent pool. Indeed, many law firms can now boast that half of their incoming classes of first-years are women. They can also boast that their recently promoted partner classes reflect a properly represented number of diverse versus non-diverse people. At this point in the DEI maturity curve, being able to conduct a census and show diversity from a headcount perspective ticks the “diversity” piece of the DEI concept. We applaud law firms for taking that first step, which can be measured easily with readily available data. But we still need to work on the “equity” and “inclusion” pieces. In fact, we wonder whether law firms are giving their now-more-diverse population an equal opportunity to be included in all aspects of law firm life and whether and how law firms are measuring the equity and inclusion components. These lingering questions led us to engage in some primary research. We were able to interview a few of the people at the forefront of significant diversity efforts in BigLaw—three CDOs at major law firms—as well as one corporate executive and one person heading the diversity efforts of an agency in the federal government.
The themes of the interviews included these threads:
We were heartened, in these interviews, by the CDOs’ emphasis on data, but we noticed that the data gathering was still very labor-intensive. We think that there’s a way to gather more and better data without having to add several new data analysts to the budget. Before we get there, though, let’s talk a bit more about what’s not working.
Numerous studies discuss why associates don’t stay, and those studies suggest that the main factors include a lack of transparency at the firm and unsatisfying work. The studies and surveys also show that women and minorities also get worse assignments, aren’t invited to some social activities, and (still) experience comments based on stereotypes. Here’s an example:
As experienced by [one Asian American female associate], many of the white males, including the young associates, lunched together and never invited women or minority attorneys. Invitations to golf outings and after-work affairs, too, were only extended to white males. “It kind of felt like you were on the outside,” she says.
The Wisconsin law firm was a positive experience. But at the two Illinois firms, [the associate] says the partners “wanted to keep females in general in the office—working on briefs or doing research.” They took white males to court or depositions and ignored the other associates, she says. “They wanted someone who looked like them, a ‘mini-me,’ to take to court with them.”
And here’s another example:
Our interviewees underscored how alienating law firm life can be for diverse attorneys. One Latina associate recalls that a male partner invited all the White male associates to a party at his house. The women and attorneys of color were simply not invited. An Asian attorney reported that she used to feel confident until she joined her big firm. Now she feels “very insecure,” but she thinks that “young White men feel confident because when they are questioned, they don’t interpret it as a slight on their intelligence or abilities.” One woman of color noted that she sometimes even feels alienated when she performs well and she sees that the judge, opposing counsel, or the client is surprised. “They weren’t even expecting a good performance.”
In addition, there is research suggesting that diverse attorneys do not get to work on the most interesting projects or cases, leading attorneys to feel discouraged and leave.
Successful retention efforts need to focus on both the fair distribution of professionally gratifying work assignments and inclusion in opportunities for professional advancement. The sense of belonging that every associate craves doesn’t develop when opportunities—assignments and social engagements—go only to a subset of a cohort of associates. In particular, when there is a disparity not just in the volume of work assignments but in their quality, that disparity will result in exodus. As far back as 1996, when Professors David Wilkins and Mitu Gulati wrote Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis, they pointed out an obvious truth about training:
[S]ome associates report[ed] that they receive[d] valuable training opportunities while others [did] not. In addition, once an associate acquire[d] a reputation as being well-trained, she [continued] to receive training in the form of demanding work. Although managing partners understandably continue[d] to deny that firms track incoming associates [as either on-track or off-track], more detached observers, as well as partners in more candid moments, report[ed] the contrary.
An associate's perception about which track she is on will have a substantial impact on how long she decides to stay with the firm. Associates know that firms look for two things when they select partners: legal ability and marketing potential. An associate who has not been trained cannot credibly signal either of these capacities. Training is the Royal Jelly that enables associates to develop the job-related skills partners expect to see in those who will be elevated to their rank. Similarly, although an associate may have business contacts independent of the firm, the most likely way for an associate to demonstrate her rainmaking skills is through contact with the firm's existing clients. Such contact is one of the commodities that training can help an associate accrue.
A 2021 study of data from the American Bar Association’s After the JD Project observed the same phenomenon: “African American lawyers were more likely to end up doing ‘routine paperwork’ in firms’ ‘flatline track.’ Their white peers, by contrast, tended to work on challenging assignments in the ‘training track.’” In that same study, one interviewee noted the distinction between how firms were supposed to assign work—through an assigning partner—and how they did assign it (less formally). As Professor Kevin Woodson puts it, “junior attorneys who have the strongest relationships and rapport with senior colleagues tend to receive greater access to the scarce supply of training work.”
Firms that are serious about advancing all associates through the ranks should focus on being more methodical about spreading around work assignments, both in kind and in number. They need a broad and deep “spread the wealth” strategy that doesn’t cluster people around simple availability or comfort levels based on past work collaboration or superficial similarities. Again, what we’re going to suggest is not so much a strict “you must go through your assigning partner” strategy—that’s just not how most law firms work. What we’re going to suggest is a periodic assessment and rebalancing of assignments given to all legal professionals on a regular basis—using data—similar to the way that someone who wants to have a decent retirement income will keep rebalancing the portfolio of investments based on metrics designed to yield a desired outcome over time.
Many law firms have taken on DEI initiatives sua sponte. For other law firms, the initial nudge toward DEI practices has been client-driven. Often, the clients’ DEI objectives and policies require vendors, including law firms, to adopt their own DEI policies. There’s certainly no need for any law firm to wait on its clients to suggest (or mandate) the adoption of a DEI policy before doing so on its own, because adopting a DEI a policy is a meaningful first step toward making everyone at the firm feel included. But we do think that adopting a policy that ignores data will be difficult to implement and impossible to monitor. Without methodical data analysis, it’s impossible to know if a firm is achieving its DEI objectives—whether intentionally achieved or achieved fortuitously (or not at all). In other words, talking the talk without walking the DEI data walk will cause some of your most talented people to walk right on out the door.
What we’ve learned from CDOs and other sources is that firms, when they whiff on DEI objectives, most often whiff on the “soft” opportunities that go to some, but not all, of their lawyers and paraprofessionals. Some associates—let’s focus on associates for now —get tapped for plum assignments because the assigning partners like them or feel comfortable with the quality of their work. If those associates do their assignments well, then they’ll get assigned even more work and will develop a well-known professional profile. Studies suggest that some associates, often women and people of color, are not in the regular rotation for getting more and more professionally gratifying assignments. Firms that want to thrive must raise the profile of junior legal professionals who are not in the rotation. When these associates don’t get assigned ever-more-challenging work, their skills are bound to develop more slowly, if at all. Part of the problem, we think, is the failure to adopt a systematic and data-driven approach. Without a systematic process, legal professionals who are diverse are more likely to experience the inclusion that firms likely want for them:
[C]ritical career-enhancing opportunities are shared unevenly by people in positions of power and influence because certain groups are disproportionately excluded. Specifically, female, LGBTQ, disabled, and racially or ethnically diverse attorneys have disproportionately less access to networking opportunities, insider information, decision-makers, mentors and sponsors, and meaningful work. Minorities in the legal profession also have less access to candid and frequent feedback, social integration within law firms of all sizes, training and development, client contact, and promotions. A recent survey revealed that women and minorities are less likely to perceive that they are treated as equals by their peers, and are more likely to experience disparities that are not reported by those outside of their race, gender, and/or sexual orientation. This research indicated that women and minorities are less likely to receive requested work assignments, and they also are more likely to experience unfair performance evaluations, or receive criticism that is not related to performance, and that is not made of white peers. Furthermore, women and minorities are less likely to feel included in informal networking, as well as opportunities to develop client relationships.
Given the pace of law practice, without a way to keep track of who gets which opportunities and whether everyone gets exposed to the same types of experiences, DEI initiatives just become “feel good” initiatives. And the initiatives actually don’t feel that good for the people for whom they were designed. Good intentions won’t cut it. Only data and accountability will.
We promised earlier in this article that we wouldn’t get into the politics of DEI. And we’re not. But training alone, and especially mandatory training that itself blames a specific group for a lack of diversity, is going to come with the baggage of pushback. We have an example: At least one well-intentioned general counsel of a major international corporation left after his diversity program was met with pushback. As for the details of that program:
[The General Counsel] set out aggressive targets to increase the diversity of [the company]’s external legal advisors which required at least 30% of all hours billed on new [company] matters to be recorded by diverse lawyers (including female, LGBT and disabled staff ), with half of those hours to be billed by black lawyers.
… .
It looked like a win-win for [the] pioneering [General Counsel], as firms had to agree to their fees being docked by a non-refundable 30% if they failed to meet his diversity targets for two quarters.
… .
But in a shock development, [the General Counsel] has suddenly stepped down, and the new GC … has told the company’s 180+ in-house lawyers that her predecessor’s diversity policy would be “taking a pause for now.”
Mystery surrounds the exact reason [the General Counsel] departed, although rumours have circulated that neither the [company’s] board nor its shareholders were entirely comfortable taking such a prominent role in a highly politicised US culture war.
We understand that particular former general counsel’s frustration. None of the prior diversity efforts bore fruit, so he wanted to introduce transparency and metrics into the mix. He encouraged firms to “creat[e] … sponsorship roles—someone at the executive level, sitting at the decision table who is responsible for understanding ‘how work is allocated; being transparent about that process; and making it more democratic. They should also play a role in making sure that the work allocated is critical to people’s development and understand how origination credit and relationship credits are being allocated.’” That’s a large part of what we’re suggesting, at least in general. We’re not privy to any inside information, but a smart bet is that the initiative failed because it was “too much, too fast” for organizations that are slow to change. Ever since BigLaw became, well, really big, firms have been managing their organizations primarily to maintain the same level of growth and economic success. The COVID-19 pandemic forced some changes, like the accelerated adoption of technology and embracing a remote workforce, but we don’t characterize those changes as entirely voluntary. Our point? The former general counsel’s ability to dictate institutional change at Coca Cola’s outside law firms did not have the seismic force of a pandemic as a change agent. Diversity efforts may be nudged along by clients, but a firm must take ownership of its DEI initiatives, and that means that a human—with real authority and real data in support—has to make sure that every associate is getting meaningful work and the type of experience that will help that associate succeed. But, as we explain below, the best way to take ownership of a DEI initiative isn’t by mandating a particular formulaic percentage of people who work on a matter. Both of us have been in BigLaw, and the traditional method for assigning people to a matter involves the highly technical question of “who’s available right now, and can I trust this person to do good work?” There’s just not a lot of time for planning who should be given which tasks on which matters (a fact we’ve bemoaned before in prior articles ). Given those circumstances, law firms must be proactive, thoughtful, and strategic in assembling their work teams and in how they monitor the work done by each member of the team.
Yes, we think that firms have an easy path to do better. They’ll need to do some advance planning (a list of experiences and skills that each department’s associates should have attained at the end of each year, and a way of charting each associate’s progress), they’ll need to rebalance those experiences at the end of each quarter to redistribute a variety of experiences across associates, and they’ll need to find a way to track the informal socializing that increases a sense of inclusion. Some of these efforts will create client pushback, as clients tend not to want to pay for new lawyers to get up to speed on their projects. We understand that firms will have to absorb those internal costs for which clients do not want to pay. But remember that $400,000/associate cost when a newer lawyer walks out the door. It’s important to retain the people that a firm considered talented enough to hire.
After several years of DEI-focused recruitment efforts, the headcount of diverse legal professionals at many AmLaw200 law firms reflects progress—not necessarily to the levels sought by the CDOs, but measurable progress nonetheless. It is now time for law firms to focus on the equity and inclusion components of the DEI concept to ensure fair and equal allocation of work to our diverse junior colleagues. Equitable work allocation is a critical prerequisite to professional development and, therefore, to promotion. If a legal professional has been relegated to document review and has never taken a deposition, how can that legal professional eventually be promoted to partner? The answer is obvious: no high-caliber work, no promotion. If the professional has never first-chaired a transaction, the same roadblock to promotion occurs. But how does a firm actually determine what its junior colleagues are doing? Right now, firms collect data regarding work distribution and skillset development largely on a self-reported basis. Systemic methods for identifying skill sets within a law firm are nascent, at best, according to many of the CDOs we interviewed. For the most part, law firms keep track of the skills of their legal professionals in a mostly manual process (if at all). Self-reporting is not the right approach. First, legal professionals handle hundreds, if not thousands, of legal tasks throughout the year. When an associate is asked by a managing partner or talent management professional how the associate’s professional development has been progressing. remembering countess tasks at a granular level taxes one’s memory—even the most astute associate likely doesn’t keep track of the work that she did. Second, self-reporting is fraught with challenges. It could put associates in the awkward position of subconsciously and unintentionally misreporting their experience level, either underestimating it because they crave more experience or overestimating it because they want to avoid any perception of inexperience. Either way, manual self-reporting is burdensome, time-consuming, and inconsistent. So what’s the answer?
We think that the deliberate use of already available data is the answer. Law firms have mounds of data in their client relationship management (CRM) systems, in their document management software, in their financial and reporting tools and, most important for DEI purposes, in their timekeeping and billing systems. Specifically, law firms should mine their billing and invoice data to ensure that their diverse and non-diverse legal professionals are receiving a comparable level of challenging work from a professional development perspective. When a legal professional keeps time in one-tenth of an hour increments (assuming well-constructed narrative descriptions), time entries provide an in-depth profile of the skill set of a legal professional. Indeed, today’s advanced data analytics technologies can identify discrete legal tasks handled by legal professionals at a granular level (e.g., drafted 10-K, reviewed an affidavit in support of a motion to dismiss, defended the deposition of Ms. X, analyzed a Phase II environmental report, and so forth). This data corresponds directly to a legal professional’s development of new skills, and when the firm correlates that work with the legal professional’s DEI status, the firm can understand exactly what work is being allocated to diverse legal professionals versus non-diverse legal professionals. This type of programmatic analysis alleviates the burdens and flaws of self-reporting. A programmatic analysis is consistent across the entire pool of legal professionals. It is comprehensive and accurate because it derives from the legal professional’s own time entries. For example, every task that a legal professional has performed can be categorized and scored, on a numerical basis of 1–3.
| Task Level | Legal Task | Task Complexity |
Task Value |
|---|---|---|---|
| Level 1 Tasks | Document review; due diligence; legal research | Routine, low complexity |
Low value: commoditized and recurring |
| Level 2 Tasks | Advanced legal research of novel propositions; preparation of a stock purchase agreement; deposition of a custodian of records; court appearances in uncontested matters; prepare closing checklist | Medium complexity: |
Moderate value: core competencies |
| Level 3 Tasks | Court appearances in contested matters; direct counterparty negotiations; plan and execute trial strategy |
Sophisticated: requiring high level thinking and advanced legal and business acumen | High value: bespoke work that is outcome-determinative for the client |
Once the firm uses basic algorithms to calculate a score for a legal professional and then ranks that professional’s experiences at the firm, a law firm CDO can very easily see how the firm is allocating work between its diverse versus non-diverse individuals. The firm can also track changes to the professional’s score over time, and it can choose to include the non-billable time that the professional spends (e.g., client development, speaking engagements, and the like) that also contributes to the professional’s skill set. The trends that emerge will create greater self-awareness whenever a senior legal professional assigns work to a junior colleague. Once the trends and behaviors manifest, the firm can effect positive, meaningful change. If the senior professionals are not changing their behavior in terms of assigning valuable work to each associate, the law firm’s management can choose to incentive behavioral change of those recalcitrant senior professionals.
Experts recognize that data is key to diagnosing how to address both individual and organizational change in behavior.
Robert Livingston, a lecturer at the Harvard Kennedy School who works as both a bias researcher and a diversity consultant, has a simple proposal: “Focus on actions and behaviors rather than hearts and minds.”
Dr. Livingston suggests that it’s more important to accurately diagnose an organization’s specific problems with D.E.I. and to come up with concrete strategies for solving them than it is to attempt to change the attitudes of individual employees. And D.E.I. challenges vary widely from organization to organization. …
The legwork it takes to actually understand and solve these problems isn’t necessarily glamorous. If you want more Black and Latino people in management roles at your large company, that might require gathering data on what percentage of applicants come from these groups, interviewing current Black and Latino managers on whether there are climate issues that could be contributing to the problem and possibly beefing up recruitment efforts at, say, business schools with high percentages of Black and Latino graduates. Even solving this one problem—and it’s a fairly common one—could take hundreds of hours of labor.
In other words, data will always speak louder than the fancy websites lauding well-meaning but empty policies ever will.
We wish we could cure prejudice, but we can’t. Whether it’s an associate who leaves because her firm’s former law partners had sent out horrendously racist and sexist emails, or it’s an associate who leaves after a series of similarly unpleasant experiences, associates will leave if their colleagues’ actions signal that they’re neither welcome nor valued. We’re not going to try to change people’s minds about their favorite colleagues. We acknowledge that some senior legal professionals always will be predisposed toward working with certain other junior legal professionals, often because they’ve trained those colleagues or because using that professional benefits the client. Awareness of the need to change behaviors is the first step, because change for law firms does not happen instantaneously. Our goal is to prompt a change in actions, not thoughts. Our proposed approach shines a bright light on areas where there is room for improvement. One of the beautiful things about using time sheets to track who’s getting which assignments is not just the benefits to the associates. It benefits law firm managers, who will be able see clearly which partners aren’t assigning work fairly because they’re not willing to change.
Mining data to ensure fair and equitable work allocation is the right strategic approach. Putting aside the inherent accuracy of and trustworthiness of the data, data-driven decision-making has an additional imprimatur of legitimacy because the law firm has shared the data with third parties—firm clients. By doing so, the law firm tacitly affirms the accuracy of the data—what’s in it and what’s not in it—particularly the tasks handled by the legal professionals referenced in the bill. The good news for law firms is that the push for DEI still has room for creativity. Firms should continue to recruit and hire talented people of all backgrounds. The even better news for law firms is that all of them have access to data that, when analyzed intelligently, will help them implement their DEI strategy and achieve their DEI goals. All it takes is for law firms to take the first step to walk the DEI data walk.
We are grateful to those chief diversity officers who spoke with us and to others who helped us think critically about this issue, including Youngwoo Ban, Emmanuel Berrelleza, Meredith Tiano, and Jeff Van Niel.
