January 22, 2021 Feature

Race, Diversity, Inclusion, and the Media Bar: Will the National Conversation on Race, Diversity, and Inclusion Bring About Meaningful, Lasting Change Within Our Bar?

By James Carlos McFall, Trey McDonald, and Miguel Ortiz

The year 2020 will not easily be forgotten. We were confronted with a global pandemic that forced us to alter the way we work and interact with friends and loved ones, and we survived one of the most contentious presidential campaigns in U.S. history.

For many Americans, however, 2020 is perhaps most notable for the killings of George Floyd and Breonna Taylor and the national reckoning and protests that followed on issues of police brutality, institutional racism, and justice.

We interviewed prominent media and entertainment attorneys to gain a better understanding of their experiences as members of the media bar. The conversations were extremely informative. Perspectives on whether the recent conversation on race takes hold and, ultimately, leads to increased diversity and equity within the media bar varied widely, especially between age groups. There was a remarkable level of consistency in terms of experiences (both positive and negative) within the bar, with each of them echoing a similar sentiment, albeit in vastly different terms. Their sentiment can be summed up as follows:

  1. Law firms, companies, and the bar have historically been reluctant to acknowledge that lack of diversity is a problem.
  2. Law firms and companies often do not understand the unique challenges underrepresented attorneys face in the profession and the media bar.
  3. There is no silver bullet, and law firms, companies, and members of our bar must do more to bring about lasting, positive change.

This article examines each of these points.

The Issues

1. The Need to Acknowledge the Problem and the Role We Play in Perpetuating It.

Black attorneys and jurists have played a crucial role in enshrining many of the First Amendment principles without which the George Floyd, Breonna Taylor, and Black Lives Matter protests could not have occurred. For example, in Police Dep’t of City of Chicago v. Mosley,1 Justice Thurgood Marshall, writing for the majority, famously declared:

[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. . . . Our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”2

Despite their significant legal contributions, attorneys of color remain historically underrepresented in both the profession and the notoriously insular media bar.

An American Bar Association survey found that, despite accounting for 13.4 percent of the U.S. population in 2019, only 5 percent of the nation’s attorneys are Black. Further, approximately 2 percent of partners at U.S. law firms are Black. The numbers are even worse for Hispanic attorneys.

It remains difficult for underrepresented minorities to break into the industry, let alone to thrive in it. Sibo McNally, vice president of business and legal affairs at Starz, pointed to the barriers that exist within the hiring process. “People often hire people who look like them or remind them of themselves. This becomes a problem if the people with the most hiring power are disproportionately white,” she explained.

2. The Unique Challenges That Underrepresented Minorities Face in the Profession.

Another common sentiment expressed by the attorneys interviewed for this article is the feeling that they must constantly disprove negative racial stereotypes and low expectations that some may have for them. For example, Denise Beaudoin, who runs The Empire Firm, LLC and services several productions, including The Dr. Oz Show, discussed constantly feeling early in her career the need to be perfect or risk being deemed incompetent. The constant need to prove oneself is stressful and exhausting, which may explain why the attrition rates for racially diverse associates significantly exceed those of their white colleagues.

Further, many attorneys described the “loneliness” and “isolation” they have felt on the numerous occasions where they were the only person of color in the room. For example, Carolyn Forrest, senior vice president and general counsel of Tubi, a division of Fox Entertainment, stated, “[I]t was daunting . . . I felt like an outsider.”

Black and Brown attorneys must also cope with the same fears and stresses that exist for minorities in a society that, as Philadelphia 76ers Coach Doc Rivers said, “[D]oesn’t love us back.” The attorneys interviewed recounted numerous conversations with friends and colleagues of varying ethnic and racial backgrounds in the aftermath of George Floyd’s killing. They all recalled friends and colleagues being shocked to learn that they too had been targeted, demeaned, made to feel unwelcome, or, worse, threatened with violence because of their race.

The reality is that legal training, degrees from prestigious colleges and universities, and positions of prominence and authority have not shielded—and are unlikely to shield—us from the harsh realities of life that exist for many of our Black and Brown brothers and sisters who have not been afforded the same educational and professional opportunities. Former U.S. Attorney General Eric Holder and Senator Tim Scott (R-SC), for example, have spoken publicly in recent years about unwarranted confrontations they had with police officers while serving at some of the highest levels of the federal government and in elected office. Many of the attorneys we interviewed recounted similar personal experiences.

3. The Critical Role That We Must All Play in Remedying the Problem.

The role of a dedicated and influential mentor cannot be understated. Bradley Runyon, legal counsel for The Dr. Oz Show, described the importance of dedicated mentors who invested directly in his success. S. Jenell Trigg, chair of Lerman Senter’s Privacy and Data Security Practice, discussed the critical role that mentors played in her growth as an attorney when she started her career at the Federal Communications Commission. She described mentors taking her under their wing and encouraging her to take on projects and roles outside of her comfort zone and area of expertise because they knew doing so would make her a better attorney. “It changed the trajectory of my career,” she explained.

Forrest expressed the need for diverse attorneys to take on some of those efforts themselves in the absence of a dedicated, committed mentor. “It’s about marketing yourself as a team player and making yourself the one people want to work with,” she said.

McNally noted that she has found herself more willing than ever to speak out against latent racism. McNally and Forrest encourage attorneys of color to make known their feelings regarding the need to improve diversity and inclusion efforts. Forrest, for example, explained:

People of color have to speak up. I don’t think it’s a job only for people of color, but I do believe diverse attorneys have a duty to speak up . . . . There are always people who say we want to promote diversity. But then they say “we cannot find qualified candidates. It’s a ‘pipeline’ problem.” These are good, kind-hearted, well-intentioned people. But nothing changes.

The often-cited “pipeline” problem refers to the perceived scarcity of qualified diverse candidates. The attorneys interviewed for this article, however, share our belief that misconceptions about certain law schools and the candidates who attend them are equally, if not more, problematic. The legal industry is notoriously elitist. The most powerful firms and corporations recruit primarily candidates who attended the nation’s top-ranked law schools. In doing so, they overlook the fact that qualified candidates from historically black colleges and universities (HBCUs) and lower-ranked schools often choose to attend those schools over their higher-ranked counterparts for reasons unrelated to their talent, work ethic, and qualifications, e.g., significant scholarship awards, lower tuition costs, and the ability to attend school on a part-time basis while working. In effect, those students are often afforded no meaningful opportunity to interview with, let alone be hired by, many firms and legal departments. And, as a result, many firms and legal departments continue to lack the critical mass of diverse talent that they have long espoused an interest in achieving.

The attorneys we interviewed outlined several steps that law firms and in-house legal departments can take to promote greater diversity within the profession and media bar:

  • Revisit recruiting strategies. Legal employers should consider expanding the scope of their recruiting efforts to include on-campus interviews at HBCUs and other law schools with significant diverse law student populations. Employers should recognize that many of the students who attend those schools have overcome tremendous adversity to get to where they are. Those students should not be deprived of interview and employment opportunities because they attend lower-ranked schools.
  • Recognize internal deficiencies. It is difficult, if not impossible, for organizations with no diverse leaders to identify policies and practices that have prevented them from being able to recruit, promote, and retain diverse talent. Law firms struggling to achieve greater diversity should consider the prospect of requiring their attorneys to attend implicit bias training and hiring a chief diversity officer.
  • Place an emphasis on retaining and promoting diverse talent. It is difficult to recruit diverse talent when you can point to no, or very few, diverse attorneys who have thrived within your organization. The importance of knowing someone who looks like you and who you identify with culturally cannot be understated. Firms that espouse an interest in diversity, but lack the ability to demonstrate a meaningful commitment to the issue in practice, face an uphill battle when it comes to recruiting diverse talent. The opposite is true for firms with a critical mass of diverse attorneys throughout the ranks, and it is especially true for those with diverse attorneys in positions of leadership.
  • Incorporate diversity initiatives into the long-term strategic plan. Legal employers should mentor diverse candidates and invest in “pipeline” programs that expose diverse candidates to the practice of media and entertainment law.

Conclusion

The myriad issues that underlie the racial disparities within the media bar and legal profession as a whole are not new. In the wake of national protests and calls for equality, however, corporations, law firms, and attorneys are facing increased pressure to not just acknowledge the systemic and structural inequities that perpetuate racial disparities, but also to take an active role in remedying some of those societal ills. It remains to be seen whether and to what extent their responses will bring about meaningful, lasting change.

In the end, one thing is certain: It is imperative that we, the members of the media bar, continue the conversation, call out and attempt to remedy structural inequities in our own institutions, and implement and support initiatives dedicated to promoting diversity, equity, and inclusion within our bar.

Endnotes

1. 408 U.S. 92 (1972).

2. Id. at 95–96 (internal citations omitted).

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By James Carlos McFall, Trey McDonald, and Miguel Ortiz

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James Carlos McFall is a partner in Jackson Walker LLP’s Dallas office. James is a trial lawyer. His practice focuses on media, sports, entertainment, and complex commercial litigation. James co-chaired the Forum on Communications Law’s First Amendment and Media Law Diversity Moot Court Competition from 2015 to 2020. He is an active member of his firm’s Diversity Committee and co-chairs the subcommittee responsible for promotion and retention initiatives.

Trey McDonald is a trial lawyer and partner in Jackson Walker LLP’s Houston office. Trey’s practice focuses on a wide array of media, First Amendment, and complex commercial litigation matters. Trey has previously written and lectured on issues related to race and law. He is an active member of his firm’s Diversity Committee and co-chairs the subcommittee responsible for diverse attorney recruiting initiatives.

Miguel Ortiz is a litigation associate in Jackson Walker LLP’s Dallas office. Prior to law school, Miguel served as a paralegal in the Prosecution Department and the Defense Department of the U.S. Air Force. In those roles, Miguel gained experience in the areas of administrative law, operational law, and criminal law.