Diversity and Inclusion: Are Law Firms Getting It Wrong?

On June 5, 2019, legal experts, including law firm partners, recruiters, human resources executives and business leaders, joined Loeb Leadership in New York City for a roundtable dialogue on the state of diversity, equity and inclusion in the legal industry. The objective of the roundtable was to better understand why there has been little progress increasing the number of diverse attorneys despite significant investments over the past two decades. The roundtable covered many important topics and two things became clear: Law firms may be getting it wrong when it comes to increasing diversity, equity and inclusion, and any meaningful results will require firm leadership to have the courage to effect change. Take, for example, the fact that diversity and inclusion has been a focus for over 20 years yet there has been only incremental progress. In 2017, women made up 48% of summer associates and 45% of associates yet only 20% of partners and 18% of equity partners were female (ABA 2017). In 2018, only 4.4% of associates were African-American and although women comprised 49.5% of all associates, just 39% of partner promotions went to women (NALP, 2018).

Let's start by highlighting some of the positive news that was shared during our forum. Many of the participants felt that although progress is not moving fast enough, there are some reasons to be encouraged; access to implicit bias training, recent promotions of diverse partners and a shift to focusing on an inclusive workplace culture rather than diversity metrics are examples of positive change. Some participants noted that they've seen considerable effort within their firm to increase investment in mentoring diverse associates, while other participants felt their firm was making progress on diversifying the cohort of incoming associates. However, all participants agreed that more needed to be done, and soon.

In contrast to the stories of progress being made at some firms, the dialogue format encouraged participants to share deeply personal stories of the obstacles they continue to face. And they did. A lack of general support and mentorship from senior leaders, and a resistance to prioritizing an inclusive workplace culture seemed to permeate much of our conversation. Others shared examples of explicit bias. In one example, a participant recounted a conversation in which an attorney said that associates of color have not fully earned their position and do not perform to the same level as their Caucasian peers.

The shared examples point to uncomfortable yet serious questions about what's really happening at the core of diversity, equity and inclusion efforts at law firms. Here's what we learned thus far. A real, lasting solution to fostering a diverse, equitable and inclusive workplace culture will occur only when the majority demonstrates the courage to effect change. The current philosophy of "handing" diversity and inclusion over to the very groups who continue to be marginalized may actually be causing more harm to diverse associates' careers, rather than helping.

During our follow-up research, we found that in many instances associates and partners of color were unduly burdened with non-billable time in order to represent the firm at both recruiting and D&I events. White attorneys were essentially exempt from this activity and seen as spending their discretionary time expanding their portfolios through business development, additional billable hours and attorney professional development.

Another example included firm mentors advising associates against joining any of the diversity and inclusion groups or associate committees because those groups were seen as “the complainers” and any association with the groups could cause lasting harm to one’s career advancement.

Given this, you can easily see how the false narratives about the performance and productivity of associates of color are formed. The expectation that the lack of diversity, equity and inclusion at law firms is a problem that minority attorneys need to solve is no more valid than an expectation that poverty will only be solved by people in the lowest income bracket. Those in the majority, particularly those in positions of authority and power must take courageous steps to demonstrate to all associates that the firm is committed to diversity, equity and inclusion, is willing to initiate difficult dialogue related to implicit and explicit bias, and will make the necessary changes to the firm’s operating philosophy to ensure a level playing field.

It became clear that the most impactful “investment” in diversity, inclusion and equity in the legal industry may not be a financial one (i.e., funding a D&I Officer role, external diversity events, etc.), and instead might be holding senior leaders accountable for leading by example. A sincere step would be to require members of the firm’s executive committee to participate in diversity, equity and inclusion activities and to take immediate steps to prioritize the support and development of the firm’s diverse attorneys. Additionally, if attorneys of color preferred to focus their energies on building their practices or elevating their practicing skills instead of diversity and inclusion activities, they should not be met with criticism. All participants made a formal commitment, by accepting a Loeb Leadership challenge coin, to return to their respective organizations with a sense of urgency.

As part of our commitment, Loeb Leadership is planning a follow-up event for early 2020.  We must not let the momentum from the roundtable subside and we realize that to keep up the momentum, we need to expand the reach of the people at our table. Accordingly, David Sarnoff will be reaching out to firm leadership with an invitation to commit to and engage in our next roundtable, where we will be exploring ways to effectively lead the type of change that is necessary for progress.

If you are a managing partner or executive committee member and you do not want to wait for the formal invitation, feel free to contact David B. Sarnoff, Esq. at dsarnoff@loebleadership.com or 917-992-0264.