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Diverse Views: Increasing Diversity and Awareness in Legal Organizations

Nicholas J. Kim

©2016. Published in Landslide, Vol. 8, No. 3, January/February 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

By many measures, the legal profession has the ignominious distinction as being one of America’s least diverse, even less so than medicine, accounting, and engineering. And while our industry has broadly acknowledged and committed to improve on its lack of diversity, leaders of law firms, corporate law departments, and law schools are constantly in search of solutions and advice relevant to their organizations’ particular circumstances.

Responding to these needs spanning our profession, during the ABA-IPL’s 30th Annual Intellectual Property Law Conference, the Section’s Diversity Action Group (DAG) hosted a panel discussion on diversity entitled “Increasing Diversity and Awareness in Legal Organizations.” The panel comprised professionals from across the spectrum of legal practice, including members of private law firms, academia, and the corporate law department: Latonia Gordon, Director of Standards Policy at Microsoft Corp. in Chicago, Illinois; Ed Marquette, a partner at Kutak Rock LLP in Kansas City, Missouri; Susan Barbieri Montgomery, Executive Professor of Law and Business at Northeastern University, Of Counsel at Foley Hoag LLP in Boston, Massachusetts, and the first woman chair of ABA-IPL in 2006–07; and Sanya Sukduang, a partner at Finnegan, Henderson, Farabow, Garrett & Dunner LLP in Washington, D.C. The views expressed herein are solely personal to the panelists; they should not be attributed to the panelists’ employers or firms.

This article is adapted from the panel’s lively discussion, during which the panelists drew from their varied experiences and backgrounds to offer advice for organizations and individuals, especially young diverse attorneys, confronting diversity and inclusion issues. In particular, the panelists discussed what has worked (and what hasn’t) to enhance diversity and awareness in their organizations, and whether the harms of implicit bias can be managed or mitigated in today’s legal organization. Please read on for the panelists’ valuable insight.

LANDSLIDE: Sanya, I’ll turn to you to start off with the perspective of a law firm partner, who, I should mention, is also your firm’s Partner-in-Charge of Diversity and Inclusion. Why are diversity and awareness particularly important to the vitality of today’s legal organization?

SANYA: Like other law firms, we’ve certainly acknowledged that there’s a business aspect to diversity in that it impacts business generation. But the biggest challenge facing law firms today is internal—retaining talented associates. Generally speaking, law firms average about 20 percent turnover rate per year. For some, a law firm just isn’t the right fit for those people, so they leave. But for others, whom we call “undesirable losses” because the firm would rather not lose them, we have found a large percentage of these departing attorneys are women and minorities. Compounding this issue, incoming associate classes are increasingly more diverse.

LANDSLIDE: Do these women and minorities say why they are leaving?

SANYA: From the feedback we’ve received, departing women don’t fault a lack of support or work-life balance as much as they point to a lack of mentorship. Similarly, departing minorities often tell us that they weren’t able to find a suitable role model. And these departing attorneys take with them talent that is incredibly valuable to the ability of the firm to survive and thrive. Although diversity-related RFPs (requests for proposal) are more prevalent today than before, ultimately, clients (especially long-term clients) need to trust the judgment of their attorneys, and judgment is a function of talent.

LANDSLIDE: Ed, you’ve led law firm diversity efforts for quite some time. Has the importance and emphasis on diversity changed over time?

ED: The business value of diversity is self-evident. Diverse people bring their diverse viewpoints and talents to bear to solve problems in better ways. But today’s emphasis on diversity isn’t new; it’s just been dormant. Back in 2007, when the economy was booming and law firm money was plentiful, diversity was a hot topic. But after the recession hit, diversity efforts (and I’m not talking about glossy firm brochures or animated recruiting web pages) took a back seat. But I will say that diversity was never targeted by client RFPs in the 1990s. But nowadays, like information/cybersecurity, diversity reporting is included on most client RFPs. But metrics are not the whole story—you have to provide a welcoming environment for diverse attorneys. “Prepare the feed bed,” or else your talent will eventually walk out the door.

SUSAN: When I was a partner in a law firm, we faced similar problems focusing on the pipeline of new attorneys: how to recruit diverse attorneys and how to retain them. From my experience in academia, I can assure you that the pipeline is more diverse than the workplace. Graduating students these days are coming to your firms and companies from a diverse environment. They have expectations of diversity in their workplace that law firms and companies have to be prepared for.

LANDSLIDE: In your experiences, what practice or approaches have worked to improve diversity and awareness, especially as it relates to retention?

SANYA: Start by finding quality people. Then identify the diverse attorneys, reach out to them, and foster their development.

LATONIA: Retaining diverse attorneys takes more than formal processes. There has to be trust, especially on a personal level. Even if the other person looks different, do you trust him or her? When I was a young engineer, I was put on a team for Lockheed’s Skunk Works. My mentor then looked nothing like me, an African American woman. But that didn’t matter; we shared a common interest in technology. More importantly, he always trusted that I could do that work. And his trust was empowering.

ED: Echoing Latonia, I think belief is key. As a young attorney, my mentor believed in me, and that meant a lot to me. From a law firm’s perspective, it’s important to make an honest assessment of where your firm is, and get management buy-in to improve.

SUSAN: I also agree with Latonia. As an organization, it’s important to ask: Are you offering an environment where a person can be authentically himself or herself?

LANDSLIDE: On the flip side, have you encountered practices that haven’t worked to improve diversity?

SANYA: One example of what hasn’t worked is forcing relationships and mentorships on diverse attorneys. This isn’t meant to be a slight, but honestly, some people just aren’t good mentors. And some young associates don’t feel comfortable being assigned a mentor. Instead, what does work is to arrange for structure, like policies or activities, that encourage these relationships to be created and to grow naturally. This lets people find mentors they “click with.”

ED: Right, I think organizations often start in the wrong place. For example, one pitfall is to focus only on hiring diversity without, as Susan described, providing a welcome environment for the diverse attorneys once they join. If people don’t feel welcome, is it any wonder that they would leave?

LANDSLIDE: Realizing that this panel has little enthusiasm about formal programs, have you encountered any formal structure or training related to diversity that you found to actually be effective?

SUSAN: One example I can think of was the ABA IP Law Section’s Diversity Action Plan, put into place 12 years ago. At the time, the Section recognized that it was too white, male, small-firm, and overly concentrated on patent law. So they put me, a “biglaw” woman specializing in trademarks, on the leadership ladder to become chair of the Section. So sometimes a device can work to increase diversity. But for a device to work, people have to be committed to do what it takes to execute on the plan.

ED: On the topic of training, several years ago, my firm sponsored a training on implicit (hidden or unconscious) bias provided by a diversity consultant. At first, many at my firm were skeptical about this kind of training. But it turned out to be very insightful and beneficial. The training helped us recognize that we all carry with us unconscious bias, and this bias impacts all of our decisions, including the way we interact with others different from ourselves. The training isn’t a solution in and of itself, but it was effective to raise awareness of this issue in all of us. And as we know, awareness is half the battle.

LANDSLIDE: The impact of unconscious or hidden bias—the attitudes or stereotypes that impact our thinking and actions in an unconscious manner—has gained increased attention these days, especially as it relates to diversity efforts. Beyond making people aware of the impact of unconscious bias on everyday decisions and interactions, is it possible to “manage” or “mitigate” the negative effects of people’s unconscious bias?

SANYA: It’s tough to change who people are. You have to recognize it (hidden bias) and be aware of it. But it won’t go away. Instead, an organization needs to make people comfortable raising these issues with coworkers.

SUSAN: By helping people recognize their own biases, I think you can make signs of bias go away. I recall being reminded by a law student in my class that I always referred to the judge as “he.” That opened my eyes to how I was thinking. And eliminating bias can also play a role in mentorship. Some valuable advice I picked up was to give someone a chance who otherwise doesn’t look like he or she is necessarily the right fit. We can all benefit from being given chances by others, regardless of whether we “look” up to it.

LATONIA: In the end, though, bias does exist and always will. It’s important to recognize that. And sometimes it takes years to change culture for the better, so we have to be patient. In the meantime, people are who they are. You have to meet them where they are. Try to develop relationships with people, and give them an opportunity to get to know you.

LANDSLIDE: Looking toward the future, do you have any advice for young, diverse attorneys hoping to succeed in this profession?

SANYA: Focus first on being a quality attorney. Prove to people that you can do the work they give you. Develop the trust first. Then capitalize on it.

ED: Believe in yourself. You can do anything, but you may have to work twice as hard as someone else. Don’t expect a free ticket.

LATONIA: Sometimes, it’s not just about earning someone’s trust. With certain people, they won’t trust you because they’re biased. That’s either hard or impossible to change, but it’s also not the end of the world. So be authentic to yourself; respect your authentic self. Keep pushing through, and eventually you will find someone you click with. It will be a natural evolution, at the end of which you’ll be performing at your highest level.

SUSAN: I’d echo the others’ advice. You’ll do better work if you trust yourself. Trust in yourself, and don’t listen to what others think of you. Be proud. Be authentic.

LANDSLIDE: That’s fantastic advice for all of us, at any stage of our careers. Thank you all for your time and insight.

The ABA Section of Intellectual Property Law enthusiastically embraces diversity across all of its dimensions, including gender and gender identity, racial and ethnic diversity, sexual orientation, and persons with disabilities. DAG works to support and advance diversity-related initiatives within the intellectual property bar and the ABA-IPL Section. For more information on DAG, please contact 2015–16 Chair Nicholas J. Kim ([email protected]) or Vice Chair Thad Chaloemtiarana ([email protected]).