May 08, 2018

Diversity and Inclusion in the Law: Challenges and Initiatives

Allison E. Laffey and Allison Ng – May 2, 2018

Despite the increased emphasis on diversity and inclusion within the legal field over the past decade or so, the legal profession remains one of the least diverse of any profession. According to the American Bar Association’s National Lawyer Population Survey, women made up just 30 percent of the legal profession in 2007. As of 2017, the percentage of women in the legal profession rose slightly to 35 percent. This is progress, but there remains more to do. For example, in terms of private practice, while women make up roughly 48 percent of summer associates and 45 percent of associates, they make up only 20 percent of partners and just 18 percent of equity partners.

In terms of racial and ethnic diversity in the legal field, the numbers paint an even bleaker picture. For instance, according to the ABA’s National Lawyer Population Survey, 4 percent of active attorneys identified as Black or African American in 2007 and 4 percent identified as Hispanic or Latino. By 2017, those numbers rose only slightly to 5 percent each. Yet, data collected by the U.S. Census Bureau indicate that, as of 2016, Black or African American individuals made up 13.3 percent of the total U.S. population and Hispanic or Latino individuals made up 17.8 percent of the total U.S. population. The percentage of active attorneys identifying as Asian remained steady at 2 percent, and those who identified as Native American remained around 1 percent. These numbers sometimes vary slightly across reporting agencies, but the fact that these minority populations remain woefully underrepresented in the legal profession is obvious no matter where you look.

There have been decades of diversity efforts, and studies have shown, time and time again, that diversity is good for business. Yet, gender and other diversity in partnership and corporate leadership positions remain low. This leads one to wonder what role a lack of diversity at the senior level plays in the lack of diversity throughout the profession.

Although the ABA and other groups regularly publish data on diversity in the legal profession, there has not yet been a comprehensive study of the career paths of Asian American law students and lawyers. According to a 2017 report titled A Portrait of Asian Americans in the Law—a two-year study coauthored by California Supreme Court Justice Goodwin H. Liu and other Yale law graduates and postgraduates—Asian Americans are the largest minority group at major law firms; yet, they have the highest attrition rate and rank the lowest ratio of partners to associates. Id. at 3. Among Asian Americans, although women outnumber men among law firm associates, men outnumber women by almost twofold at the partner level. Id. at 18. These numbers reflect the lack of seniority among Asian American lawyers in the legal profession. Without the support of leadership, diversity initiatives will always fail.

A related challenge has to do with minorities finding adequate access to mentors and fighting off preconceived biases based on race. Asian Americans, for example, are often perceived as having hard skills—that they are hardworking, logical, and careful—but are regarded as lacking soft skills such as client development. Id. at 38. “To the extent that mentoring and networking are conditioned by perceptions of sociability and conformity with cultural norms, Asian Americans may face particular obstacles rooted in stereotyped perceptions of being foreign, socially awkward, or unassimilable.” Id.

Meanwhile, some progress has been made. For example, in 2015, the National Asian Pacific American Bar Association kicked off a new “20x20” initiative to land 20 Asian American lawyers into general counsel ranks at Fortune 500 companies by 2020. Many firms are also implementing the Mansfield rule, which requires 30 percent of a firm’s leadership candidates to be minorities and women. The ABA adopted Resolution 113, which “urges all providers of legal services, including law firms and corporations, to expand and create opportunities at all levels of responsibility for diverse attorneys.” Many clients now also require law firms to bring a diverse group to pitch for business and will also require these diverse individuals to bill on their matters. These are good first steps, but it is important to remember that they are just that—first steps. We cannot allow ourselves to be lulled into a sense of complacency. We must continue to move forward toward our collective goal of achieving true diversity and inclusion within the legal profession. As with most goals, there is no single “right” way to achieve it, but to be successful, the strategy needs to be multifaceted and multidimensional and, most importantly, it needs to be shaped in large part by the voices of minority populations.

What does it mean to be truly diverse and inclusive and how do we get the legal profession there? Diversity does not mean having a few ethnic or other minorities in the office. It also does not mean a group comprised only of minorities. It means having people of diverse culture, experience, and background in all levels of a law firm. While this might not be the full answer, true diversity and inclusion in the legal profession require more than just checking off the requisite boxes on a checklist or survey. They require more than talk. They require action from the leadership down. In addition to measures meant to increase the numbers of minority populations in law schools, law firms, and professional associations, it is also important to implement educational programs that provide members of the legal profession with greater awareness of issues like bias (both explicit and implicit) in the workplace and strategies to eliminate it. Some states, such as Minnesota, require lawyers to complete continuing legal education (CLE) programs that address these types of issues—something all states should incorporate into their CLE program requirements.

Another way to get involved with diversity initiatives is to get involved with your local minority bar associations—help host or sponsor an event with these organization or help mentor a minority law student. Get outside of yourself and the insular legal community. Actively engage with the world around you. It is difficult, if not impossible, to adequately address issues such as bias and discrimination (overt and covert) without both an understanding of where and how these disparities came to be and the appropriate tools to effectively address them. The legal field is full of bright minds and well-intentioned individuals. If the legal community continues to work together to address these issues, there is no question that we can and will eventually accomplish our goal.

 

Allison E. Laffey is an associate with Laffey, Leitner & Goode LLC in Milwaukee, Wisconsin. Allison Ng is an associate with Greenberg Traurig, LLP in Atlanta, Georgia.

Allison E. Laffey and Allison Ng – May 2, 2018