The numbers are clear: The 1st U.S. Circuit Court of Appeals’ recent rejection of challenges to Ropes & Gray’s district court victories on discrimination and retaliation claims should not be taken as a clear sign of progress in diversifying the partnership ranks at firms across the region.
That remains a stubborn challenge, though some are hopeful that external pressure from corporate clients, paired with an ever-evolving internal commitment to progress, may finally begin to move the needle.
A May 2015 bulletin from the National Association for Law Placement notes that women and minorities have made “small gains” in representation among law firm partners in recent years. However, among all legal employers listed in NALP’s 2014-2015 directory, only 7.33 percent of partners were minorities, and only 2.45 percent were minority women. Many offices reported no minority partners at all. And at multi-tier law firms, equity partners “continue to be disproportionately white men,” according to NALP, with only 17.1 percent of equity partners women and only 5.6 racial or ethnic minorities.
On racial diversity, Boston trails the national average. Among the 30 offices in the city responding to NALP’s survey, 3.75 percent of partners were minorities and 1.25 percent minority women. By contrast, Boston is slightly above average on gender diversity. Women make up 21.28 percent of partners in the city and 45.58 percent of associates.
“The short narrative on diversity is that women and minorities as a group are tremendously underrepresented at the higher levels,” said NALP Executive Director James G. Leipold.
The demographics of incoming associates track pretty closely the makeup of law school graduating classes, he said. But that isn’t so in the firms’ power structure.
Women and minorities are “very well represented” in the government and public-interest arena, Leipold noted. It’s in private practice where the lack of diversity at leadership levels persists. Large firms are actually more diverse than smaller firms, he added, though neither can boast great success.
The reason defies an easy answer, according to Leipold. He rules out both conscious bias and a “lack of good will.” And yet it persists.
An outside push
What may ultimately change the status quo is an economic imperative from the outside, many believe. Mark D. Roellig, executive vice president and general counsel of MassMutual Financial Group, garnered some headlines recently, acknowledging in an interview that diversity concerns had prompted his company to stop doing business with certain firms, including now-defunct Bingham McCutchen.
Noting that by 2042, whites will be a minority in America, Roellig pointed to multicultural ad campaigns and inclusive hiring practices as evidence that “corporate America is getting it.” Businesses are transitioning to a more diverse workforce not just to reflect their customer bases but also because they have realized that a variety of perspectives and backgrounds lead to better decision making, more innovation and increased employee engagement, Roellig said.
Law firms have been slower to react. Roellig says that’s not just ill-considered, it can threaten their existence.
Not only will lawyers “have to interact effectively with the diverse teams found within corporations,” but “they must also be effective advocates in persuading a diverse group of judges, juries and regulators,” he and two MassMutual colleagues write in an article for the Association of Corporate Counsel.
Roellig believes one reason the business case for increasing diversity at the partnership level has been a tough sell is the partnership structure itself. Law firms, he said, are a “series of individuals.”
“There isn’t the same incentive to act like an enterprise, the way MassMutual does,” he said. “If you are a 57-year-old white partner, it can be hard to see you ought to be giving up some business” to a minority associate.
Unconscious bias, too, “clearly exists,” Roellig said. “If you think about who we spend most of our free time with, generally it’s people who look like us.”
That can manifest itself when a partner has to decide whom to tap for a project with a tight timeline. Being passed over hinders an associate’s ability to build the book of business he needs to reach partner, Roellig suggested.
Roellig encourages corporations to ask for detailed data that get beneath the allocation of billable hours across racial and gender lines to determine whether diversity extends to a law firm’s power brokers. If corporations don’t like what they see, that should lead to conversations with the law firms’ leaders, then to action plans – and perhaps to the termination of a business relationship.
Roellig and his colleagues end their article by urging directors of corporations to “rip out this article and give it to their general counsel with a sticky note on it that reads: ‘Please gather this information to share with me at the next board meeting.’”
While under no illusions that a spate of sticky notes has since been unleashed, Roellig believes “thunder clouds are gathering.”
The skills to succeed
While companies exert external pressure on law firms, organizations such as the Massachusetts Black Lawyers Association are working from the inside, helping members burnish the skills that will bolster their partnership prospects.
Business development – or rainmaking – is a particular focus, according to MBLA President Angela Gomes. In February, the association held an event in which 30 attorneys of color were split up into “firms” to develop mock pitches that were critiqued by a distinguished panel of in-house counsel from across the country.
The Skadden, Arps, Slate, Meagher & Flom attorney is among those who believe that at least some minorities are being lured by firms rather than chased away.
“If you’re a minority, you’re good, and you’re successful, it’s not just that firm that wants you; it opens the door to a lot of other opportunities,” she said.
Legal recruiter Marc Zwetchkenbaum, president of Marc Z Legal Staffing, said firms invariably request from him diverse candidate pools but frequently have difficulty matching a specialized need.
A mentor or a sponsor – “someone in the room who knows their work product well enough to speak on their behalf” – is also vital to retaining and advancing minority attorneys, Gomes said. However, when senior attorneys are deciding whom to take under their wing, “it’s human nature that people are drawn to people like them,” she said.
To combat this, former MBLA president E. Macey Russell advises law students and young associates to realize what they’re getting into.
“Part of understanding the environment is that the people you will work with have less experience than you do with being diverse,” he said.
Russell added that minority attorneys need to make their colleagues feel comfortable, even though a natural assumption would be that those in the majority would be the ones to make the effort.
“For the most part, it doesn’t go the other way,” the Choate, Hall & Stewart partner said.
He concurs that a mentor – “someone who made it his or her mission to help [the lawyer] get to the next level” – is essential, noting a study by Harvard law professor David B. Wilkins in which virtually every diverse partner of a law firm could point to a person, generally a white male, who filled that role for them.
Inevitably, many associates come to question whether big-firm life is for them, and a good mentor can make all the difference, Russell said. But the challenge in forging such relationships often leads to a reluctant migration of minority lawyers into lesser-paying public service positions.
“For a minority law student to make it into a big firm is a really big deal,” he said. “It’s not an easy thing to walk away from – the prestige, the salary the benefits.” They do so nonetheless because they come to believe the window for advancement has closed, Russell said.
On a more hopeful note, Russell believes that law firms will grow into diversity as a generational shift takes place.
“Students who went to colleges and law schools that were more diverse will begin to demand [diversity] of their own organizations,” he said.
In the meantime, training on unconscious bias is important, Gomes said.
“What really makes a difference is when it comes from the top down,” she said. “The ones at the top set the tone for the whole firm.”
Culture is key
To try to set such a tone, most if not all of the larger Massachusetts law firms have established diversity committees. In Ropes & Gray’s case, it didn’t just survive a discrimination suit brought by a former associate; it has some validation that its efforts are having an impact.
In the recently released Vault guide, Ropes & Gray ranked third for overall diversity among U.S. law firms. For the seventh consecutive year, the firm also placed in the top five in each of Vault’s diversity-related categories: LGBT, individuals with disabilities, women, military veterans and minorities.
Diversity committee co-chairman Leslie Spencer said the firm’s efforts first focus on the “pipeline issue”: being creative, innovative and strategic in the law schools at which it recruits. Spokesman Aaron N. Kellogg noted that the firm hosted a particularly diverse class of summer associates this year, with almost a third non-Caucasian and about 10 percent drawn from the LGBT community.
And Spencer noted that the firm’s approach to retention and promotion, is “in some ways … quite pragmatic.” The firm has a structure to make sure associates get the proper training and balance of assignments to further their careers, and the diversity committee has a seat at the table with senior management.
Spencer, one of the firm’s five black partners, can point to her own experience.
“I was given tremendous responsibility, almost from day one,” she said. “I learned the practical, legal skills, the client-development skills and management skills.”
Spencer also believes the firm’s general culture “helps to combat any impact of unconscious bias.” And Kellogg noted that this is reflected even in the cases the firm takes on. One partner, Douglas Hallward-Driemeier, was one of two Massachusetts lawyers who successfully argued in favor of marriage equality before the U.S. Supreme Court this spring.
Study: Unconscious bias affects writing assessments
A study commissioned last year by the professional leadership training and business coaching service Nextions and led by its president, researcher Arin N. Reeves, indicates how unconscious bias may affect the evaluation of one aspect of minority attorneys’ work: their writing skills.
Sixty partners – 37 of them men, and 39 of them Caucasian – were given identical copies of a memo. Half were told that the writer, “Thomas Meyer,” was a white third-year associate from NYU Law School; the other half were told he was African-American. The partners were asked to identify errors, offer comments and grade the memo on a scale of 1 to 5.
Twice as many spelling and grammatical errors were flagged in the black Meyer’s work, and more technical and factual mistakes as well. Unsolicited, the graders also critiqued the formatting of the black Meyer’s memo with far greater frequency. The black Thomas Meyer received an average grade of 3.2, while the Caucasian Thomas Meyer’s was 4.1.
Reeves noted that these were “fair” grades, insofar as they lined up with the number of errors found. Still, she said, the study offered strong evidence of commonly held perceptions that translate into confirmation bias.
“We see more errors when we expect to see errors, and we see fewer errors when we do not expect to see errors,” she said.