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November 28, 2016 Articles

Diversity in the Bar: Where Are We and What’s Keeping Us from Going Further?

By Hope Thai Cannon

Merriam-Webster's online dictionary defines diversity, simply, as "the quality or state of having many different forms, types, ideas, etc." or "the state of having people who are different races or have different cultures in a group or organization."  We all agree that diversity is important (at least I hope that we can all agree on that fact). Diversity is essential to the effective growth and development of schools, neighborhoods, governments, and businesses. Ensuring diversity exists in the workplace is not only the right thing to do; it also increases a business's bottom line. Extensive research shows that companies that are both gender and ethnically diverse are more likely to outperform their peers. One of the most recent research studies in this area was conducted by Bersin by Deloitte in 2015. Press Release, Bersin by Deloitte: Diversity and Inclusion Top the List of Talent Practices Linked to Stronger Financial Outcomes (Nov. 12, 2015). The findings of the Bersin research appear in High-Impact Talent Management: The New Talent Management Maturity Model. According to those findings, organizations that welcome diversity, align their diversity and inclusion strategy with their organizational objectives, and integrate diversity and inclusion with learning, performance management, and succession management, had 2.3 times higher cash flow per employee over a three-year period.

But are law firms convinced by the corporate world's view of diversity? Looking at some statistics over the past 10 years, the answer to that question appears to be "we're trying, but still have a long way to go." A 2013 study commissioned by Microsoft revealed that the diversity gap in the U.S. legal profession has worsened over the past nine years, lagging behind other professions. "Raising the Bar: Exploring the Diversity Gap Within the Legal Profession," Microsoft Corporate Blogs, Dec. 10, 2013. Moreover, even today, when diversity and inclusion are national buzzwords, there are still some bar organizations that continue to lump minorities, other than African Americans, as, simply, "other."

Data from the American Bar Association (ABA) for 2015 covering 1,300,705 attorneys show 65 percent are male and 35 percent are female. ABA, Lawyer Demographics, Year 2015. The number of female attorneys reported by the ABA has grown 6 percent since 2005. However, at both the national and state levels, the number of female and minority practicing attorneys is well behind the number of female and minority law students enrolled in a JD program nationwide. According to the ABA, in 2013–2014, there were a total of 128,695 JD students, 47.8 percent of which were female and 28.5 percent of which were minorities.

While the number of female and minority attorneys appears to have increased in the past 10 years, recent findings by the National Association for Law Placement (NALP) show that the number of female and minority associates in law firms is actually declining. "Women and Minorities at Law Firms by Race and Ethnicity—New Findings for 2015," NALP Bull., Jan. 2016. For example, "the percentage of women associates has decreased in all but one of the last six years and now is almost one full percentage point lower than in 2009." Similarly, while the number of minority attorneys appears to be increasing, this increase at the associate level appears to be largely attributable to the rise in Asian associates. The number of African American associates, on the other hand, has declined every year since 2010 and now stands at just 4 percent of associates nationwide.

Having a diverse law firm, however, is not limited to the inclusion of women and minority attorneys. Diversity and inclusion also involve recruiting and retaining attorneys with disabilities as well as lesbian, gay, bisexual, and transgender (LGBT) attorneys. According to the NALP, however, information and statistics for these two categories of attorneys are less readily available than race and gender information. In 2005 the NALP reported the number of openly gay and disabled attorneys across all firms to be 504 for partners and 869 for associates, which constituted .91 percent of partners and 1.44 percent of associates. "Still Relatively Few Openly GLBT or Disabled Lawyers Reported," NALP Bull., Dec. 2005. For 2015, the NALP reported 785 partners as LGBT, or 1.80 percent, and 1,244 associates as openly LGBT, or 3.08 percent. "LGBT Representation among Lawyers in 2015," NALP Bull., Dec. 2015. The number of reportedly open LGBT attorneys has, thus, nearly doubled in the past 10 years.

The Minority Corporate Counsel Association (MCCA) also conducts an annual survey of law firms. The data collected by the MCCA for 2015 included 250 law firms representing all of the AmLaw 100 firms. Vault/MCCA Law Firm Diversity Survey Report (2016). All but three of those law firms provided a response to the survey. The findings by the MCCA show more favorable results for minorities and females. According to the MCCA survey, minorities made up 22.75 percent of associates, 7.53 percent of equity partners, 10.21 percent of nonequity partners, and 14.99 percent of all attorneys at year end 2014. Women made up 45.04 percent of associates, 18.79 percent of equity partners, and 39.32 percent of nonequity partners for that same period. The survey conducted by the MCCA also identified attorneys with a disability and those who are openly LGBT. According to the MCCA, openly LGBT lawyers made up 2.75 percent of associates, 1.65 percent of equity partners, 1.55 percent of nonequity partners, and 2.12 percent of all attorneys. The number of individuals with disabilities made up .23 percent of associates, .29 percent of equity partners, .21 percent of nonequity partners, and .26 percent of attorneys overall.

What is most interesting about the MCCA survey, however, is the analysis of the data as to the three largest minority groups: African American/Black, Hispanic/Latino, and Asian. Based on the information the MCCA collected in prior years, the survey—like the NALP study discussed above—found that the number of African American associates is actually declining. In 2007, African Americans made up 5.11 percent of associates, but by 2014, the number had dropped to 4.19 percent. The number of African American partners, however, has increased since 2007 (although very slightly), with most of the advances made by women. Another astounding statistic for African American attorneys is that the attrition rate for African American attorneys is higher than that of any other race group.

Like the NALP's 2015 study, the MCCA survey attributes the increase in minority attorneys, in large part, to the increase in Asian attorneys. In addition, the percentage of Asian attorneys (6 percent) is higher than the percentage of total Asians in the United States (5 percent). However, the MCCA also concluded that Asian attorneys are less represented in the partnership ranks as compared with other racial groups. Similarly, the number of Asian attorneys serving in management positions at firms is also less than those in other racial groups in comparison with the total number of Asian attorneys represented.

The MCCA concluded that while Hispanics represent the largest minority group in the United States, they are the smallest minority group represented in law firms, in contrast to Asian attorneys. The number of Hispanic attorneys overall, however, is steadily growing, and the attrition rate for Hispanic attorneys (in contrast to the attrition rate for African American attorneys) is less than that of other minority groups as well.

While the specific numbers in each of the surveys discussed may vary, the walk-away information is the same: While the legal profession appears to have acknowledged the importance and need for diverse attorneys, improvements are needed to recruit, retain, and promote diverse attorneys. For example, the statistics on partner demographics, while showing a growth in the number of females and minorities, still continue to lag behind the total number of female and minority attorneys as well as female and minority law students. According to the NALP, in 2015, 21.46 percent of partners were female, 7.52 percent were minority, and only 2.55 percent of those were minority women. Furthermore, according to the NALP, the number of female partners has grown by only about 4 percent since 2004 and the number of minority partners has grown by only about 3 percent. See "Women and Attorneys of Color at Law Firms—2004," NALP Bull., Feb. 2005.

One of the barriers to the recruitment, retention, and promotion of women and minorities in the legal profession is implicit bias. Deborah L. Rhode, the Ernest W. McFarland Professor of Law at Stanford University, published an article in the Washington Post last year, entitled "Law Is the Least Diverse Profession in the Nation. And Lawyers Aren't Doing Enough to Change That" (May 27, 2015). Professor Rhode discusses unconscious or implicit biases resulting in the exclusion of minorities and females from informal networks of support and client development. As another example of implicit bias, Professor Rhode cites a study in which a legal memo was given to law firm partners to review. Half of the partners were told the memo was written by a white associate and the other half were told the memo was written by an African American associate. The study showed that the white associate's memo was rated 4.1 on a scale of 5 and that he received praise for his potential and analytical skills, while the African American associate's memo was rated a 3.2 and said to be average and in need of work.

Most people may not even know that they have such biases or, more importantly, that they behave in a way that reflects an implicit bias. For example, if those same partners in the study discussed by Professor Rhode were asked before they began the study whether they would believe that a white associate turns in better work quality than an African American associate, the majority would have said no. However, if those same partners had taken the Implicit Association Test (IAT) provided by Harvard's Project Implicit, the results may have told a different story.

The IAT measures attitudes and beliefs that people may be unwilling or unable to report by determining "the strength of associations between concepts (e.g., black people, gay people) and evaluations (e.g., good, bad) or stereotypes (e.g., athletic, clumsy)." For example, one test measures whether you are more or less likely to associate weapons with African Americans and harmless objects with whites. As the Project Implicit website states,

[t]he IAT may be especially interesting if it shows that you have an implicit attitude that you did not know about. For example, you may believe that women and men should be equally associated with science, but your automatic associations could show that you (like many others) associate men with science more than you associate women with science.

Another example of implicit bias at play is the lack of Asian attorneys in management and leadership positions in law firms. While Asians are often associated with being hard workers, Asians are also often associated with docility, passivity, and rigidity. These are qualities that are not associated with leadership. Similarly, "most Americans are more likely to associate women with family life than with professional careers." Nicole E. Negowetti, "Implicit Bias and the Legal Profession's 'Diversity Crisis': A Call for Self-Reflection," 15 Nev. L.J. 930 (2015).

Possessing an implicit bias, however, does not make you a racist or a bad person. In fact, as Project Implicit points out, people may have an implicit bias that they are not aware of or do not want to have. The first step to combatting implicit biases starts with the acknowledgment that they exist. The second step is to take affirmative steps to overcome those biases. Russell G. Pearce et al., "Difference Blindness vs. Bias Awareness: Why Law Firms with the Best of Intentions Have Failed to Create Diverse Partnerships," 83 Fordham L. Rev. 2407 (2015).

Another potential barrier to increased diversity in law firms is simply the demands of the profession and the view that anything less than 100 percent dedication means you cannot be successful. These demands take a toll on work-life balance, particularly for women. For example, while the ability to work remotely, thanks in large part to better technology, has freed us from being in the office, it has done so at the price of being handcuffed to our phones, tablets, and laptops. Such demands and pressures may be an explanation for why only 6 percent of attorneys are on a part-time or flexible work schedule, even though 90 percent of all firms offer such schedules. Thus, as Professor Rhode states in her article, it is not enough to simply create policies or programs that, by their appearance, facilitate diversity and inclusion; rather, law firm leaders must be attuned to how policies that affect inclusiveness actually play out in practice.

Therefore, while Lady Justice wears a blindfold, lawyers cannot. The legal profession has indeed made significant strides in increasing diversity, but challenges continue to exist particularly as the profession changes. The profession needs to continue not only to talk about diversity and inclusion but also to make individual and organizational efforts to overcome biases and to promote diversity so that we can all look forward to the next 10 years.

Keywords: litigation, minorities, diversity, implicit bias, Implicit Association Test

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