June 1 — Most law firms say they strive for diversity and list it as a top goal, but few know how to do it.
It starts with changing how laws firms are structured. The “pyramid” structure of most law firms—where there are just a few people who make it to the top—hinders diversity and inclusion in the legal industry.
It “should be and will be a thing of the past,” Patricia Gillette, a former partner at Orrick, Herrington & Sutcliffe told Bloomberg BNA.
According the National Association of Law Placement, Inc.'s, 2015 compendium of legal employment data, since 2009, women and African-Americans show declines in representation at major U.S. law firms.
The pyramid structure is a negative approach to employment that law firms practice, Gillette said.
It involves bringing in a lot of attorneys with the idea that most will eventually leave, and this “weeding out” process works against women and minorities, Gillette, a speaker and author on issues of gender equality, diversity, discrimination, unconscious bias and women's rights, said.
The lack of diversity and inclusion in the legal profession “is really palpable,” American Bar Association President Paulette Brown said in remarks at the Bloomberg BNA Big Law Business Diversity & Inclusion conference held in New York in May.
Surgeons and architects are more diverse than we are, Brown said.
There are two key structural changes that need to be made to achieve greater diversity and inclusion in the legal profession: The way we measure attorneys and how we pay them, Gillette said.
Lawyers should be measured by competency, quality of work and productivity and be paid according to merit, she said.
“These are qualities that make more successful lawyers,” Gillette said.
Investing in attorneys from the start and “developing your people” breeds success, she said.
Most firms, however, measure attorneys by what law school they went to and by billable hours, she said, which works against efficiency.
Schiff Hardin, ranked #9 in Vault's 2016 Best Law Firms for Diversity survey, invests a lot in new attorneys.
For the first year, new attorneys aren't assigned to a practice group but spend the year learning, Lisa Brown, Professional Development Partner with Schiff Hardin, told Bloomberg BNA.
A vital aspect of the system is that all the associates are given access to “meaningful and important work,” Marci A. Eisenstein, the firm's managing partner, told Bloomberg BNA.
Eisenstein serves on the firm's diversity committee, which she founded.
At Schiff Hardin, all incoming associates are given “access, opportunity and training” to learn how to build trust with the client and what matters to the client, Eisenstein said.
Associate compensation at Schiff Hardin is a three tier-system where advancement is tied to achieving particular competencies, Eisenstein said.
Attorneys are evaluated annually by several committees and can't proceed to the next tier until they've met the skills and experiences requirements for their practice group, Lisa Brown said.
The evaluation focuses not only on the attorneys' skills, but what opportunities an attorney is being given and what experiences each attorney has access to, she said.
“Experiences” are the skills related to a particular practice group, Lisa Brown said.
In litigation, for example, “associates advance through the three tiers as they gain experience (and proficiency) with all the skills necessary to be a fully skilled litigator/trial lawyer,” she said.
These includes brief-writing, discovery, oral arguments, witness preparation and presentation, case strategy and interactions with clients and opposing counsel.
Merit is tied to achieving objective benchmarks, Eisenstein said.
This system “works to ensure we are intentionally delivering those opportunities to people in an even-handed way,” Eisenstein said.
And it's working. “Our folks—men and women, diverse and non-diverse—are progressing at the same rate,” she said.
This is a “long-term investment,” Lisa Brown said.
Achieving diversity and inclusion takes a lot of hard work, Eisenstein said.
“We need to do more than just rely on organic progress in this area” in order for things to change, she said.
Eisenstein warns of unconscious biases that exist and can hinder diversity.
Everyone has these biases, Paulette Brown said.
These unconscious—also known as implicit—biases “affect our understanding, decision making and behavior and without our realizing them,” she said.
For the legal profession, this means that diverse attorneys aren't “getting a seat at the table, aren't being offered the choice assignments, the networking opportunities and the opportunities to obtain critical leadership experience,” Brown said.
Avoiding negative behavior that results from our unconscious bias “requires us to be intentional,” Paulette Brown said.
Eisenstein agrees that simply acknowledging the need for diversity and inclusion isn't enough.
“It takes a lot of hard work to get there. You've got to be intentional about it,” she said.
At Paul Hastings, ranked #2 in the Vault survey, this means being the best at diversity and inclusion, Donna Melby, a partner with Paul Hastings, said.
Melby is the chair of the firm's Women's Initiative and the former co-chair of its Global Diversity committee.
To succeed at this, a firm has to examine daily its business model to ensure it's the most inclusive, and this requires commitment from the top of the firm, she said.
“People need to know that diversity and inclusion are embraced at the very top levels and it permeates down in a very tangible way,” Melby said.
This means that at least a majority of partners in a law firm are willing to take time from demanding schedules to make sure they're available to coach, mentor and be available to newer, developing, talented professionals, she said.
No training time or credit is given to partners for managing people, Gillette said.
This is one aspect of law firm structure that hinders diversity and inclusion, Gillette said.
Taking time to mentor works against their financial interests because “time is money,” and is a disincentive to participate, Gillette said.
At accounting firms, for instance, management invests time in people, Gillette said.
“They give managers time and credit for mentoring and developing because they want to keep their people,” she said.
A law firm model where we invest in people is what can work, she said.
Law firms should hire fewer associates and teach them how to be lawyers, providing them with a lot of “career-counseling” in the first few years, Gillette said.
This will ultimately benefit women and minorities, who don't traditionally get good feedback, she said.
There's a “reluctance to give feedback to them for fear that women will cry and minorities will sue,” Gillette said.
Without the benefit of constructive criticism, they become marginalized and aren't given work and they ultimately leave the firm, she said.
In addition to the obvious ethical and moral reasons for diversity there are reasons that should resonate with law firms.
A study released in May by Acritas, a global legal research services company that touts itself as “pioneers and experts in data collection and analysis,” reveals that law firms with greater diversity deliver significantly higher performance and see it affect the bottom line.
The study concluded that “to enable diversity to thrive, firms will need to adapt their business models and change their internal cultures.”
Those able to make “radical changes” will experience the most rewards as a result, including greater client satisfaction and “a 25% higher share of wallet,” meaning percentage of a customer's expenses, the study said.
In some cases, clients are driving the change for more diversity and inclusion.
“Many of our clients are committed to diversity and inclusion,” Melby said.
“They—rightfully so—want firms they work with to be as well,” she said.
“We do tell law firms we expect certain things of them in diversity,” Craig Silliman, Verizon’s Executive Vice President – Public Policy and General Counsel, told Bloomberg Law's Big Law Business in a May interview.
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