Fast-forward a half dozen years, and the diversity space is getting more complicated. My outdated D&I (diversity and inclusion) terminology is now DEI (diversity, equity and inclusion). The “what makes a law firm diverse” extends beyond women, minorities and those with disabilities to those who identify as LGBTQ+. The debate now extends to the type of diversity, rather than whether you qualify as diverse.
Diversity in Reverse
At the same time the 2017 column was published, the ABA’s CLE diversity policy formally kicked in. As chair of the ABA Standing Committee on CLE, I had worked for many years to see it come to fruition. While the ABA adopted Goal III in 2008 to “eliminate bias and enhance diversity,” the act of requiring diversity on a program panel seemed like a natural, simple next step. It was working great, with few issues, when the Florida Supreme Court decided it had a problem with it.
The Florida Supreme Court decided to place a ban on Florida lawyers receiving credit for CLE courses that employ certain diversity requirements on their panels. Despite an outcry by many associations that these requirements foster inclusivity and do not exclude any viewpoint, the court characterized these efforts as harmful and discriminatory. The ABA’s decision to eliminate the CLE diversity policy rather than challenge Florida (or simply not have the state be accredited for ABA CLE programs) was a great disappointment to me and many others. The official association rhetoric was just that—the reality was that we had gone in reverse. Diversity efforts in our profession simply are not always moving forward.
Competition for Work in the Diversity Arena
The National Association of Minority and Women Owned Law Firms (NAMWOLF) and the Institute for Inclusion in the Legal Profession (IILP) issued a joint report, “Understanding and Assessing the Use of Minority- and Women-Owned Law Firms by Corporate Clients” last year. During the three-year study, the pandemic hit, changing the legal landscape. The George Floyd murder and subsequent promises of corporate contributions to take a more active role in confronting systemic racism also was supposed to shift where some of the work went. Getting more or new work from corporate clients was tougher when everyone is remote. Improving the surrounding culture in both the law firm and corporate legal departments does not easily shift on Zoom or Teams.
It turns out that distributing work to diverse attorneys means different things to different people. Some of the friction that emanated from the study dealt with a lot of the diversity work opportunities going to women-owned versus minority-owned firms, with a reference that many of the women-owned were primarily white. This made for some uncomfortable conversation during a NAMWOLF meeting last fall, since the organization is comprised of “women-owned” and “minority-owned” firms. You could hear a pin drop and feel the awkwardness when one in-house attorney suggested to an experienced Black lawyer that she needs to “get to know him better.” The comment was not well-received. The exchange highlighted that a diversity-focused association must address the conflict among different diverse groups of attorneys.
The study also highlighted a lot of the often-repeated yadayada-yada concerns about what corporate counsel is looking for in their outside counsel—do you go with the large law firm?
And what other factors are influencing the selection process? You should read the full report yourself. But it continues to highlight that much of the work is low risk, and low rate. It is far from “bet the farm” litigation and the rates that go with it.
The report references that “corporate clients are more likely to assign work to women-owned firms than to minority-owned firms and that, among minority-owned firms, Native American and African American firms are the least likely to be assigned work. LGBTQ+ firms and disability-owned firms also fared poorly but that may be due, in part, to less emphasis on the use of these diverse-owned firms and the corporate clients’ lack of familiarity with or awareness of firms that fall into those categories.”
In addition, the acceptance of various diversity “certifications” has allowed BigLaw to tout programs and statistics to justify acceptance of corporate legal work now designated as assigned to a diverse law firm. Often compared to the NFL’s unsuccessful implementation of the Rooney Rule for increasing diversity among coaching staffs and management, these certifications have often proven to be an “end around” indeed—on both the law firm and corporate legal department sides of the ball. This, too, makes the competition for legal work assigned to a diverse law firm greater.
Lead With Credentials; Make Diversity a Plus
What should you take away from the changing landscape in the diversity space? What might you do differently as either a diverse law firm or a law firm needing to improve upon its own diversity?
First, make sure you are rowing in the same direction as the associations and organizations you might be depending on for new opportunities. Second, avoid trying to hide a lack of diversity with smoke and mirrors. Finally, know your own skill sets, capabilities and shortcomings—don’t go after work that does not match the requested criteria.
There are two schools of thought in accepting work through a “diversity” RFP where the rates and work might not jibe. Some say to do the work at a discount, let them see how good you are and hope for better things down the road. I’ve personally not seen that work too often. My personal preference is to stick by your rates and decline work that you know is less profitable or a loss leader. You should get the work because you are good—with the diversity being an added benefit. But some will disagree with me.
I’ve been bothered by the marketing of firms that are in organizations tied to diversity efforts that lead with diversity. “Hire us because we’re…” I’ve always flipped the script in the business development efforts I work on with diverse law firms. We lead with results, representative matters and our credentials. The “bonus” or “plus” factor is that we’re also diverse and count toward a corporation’s quotas (stated or unwritten). The website is not just one diversity pitch after another—where we’re speaking or attending, writing or presenting—but a few mentions that are second to expertise. I routinely see newsletters and LinkedIn posts from various law firms that look like they spend all their time talking about diversity and little of it practicing law. This was my takeaway, sometimes an underlying reference, in many of the corporate counsel quotes in the NAMWOLF/IILP report. Stop saying you are just as good if not better than the competition—show me. Because competing for work in the diversity space is heating up.