The effort to diversify the legal profession has been an arduous journey. One 2010 survey by the New York City Bar Association reports that "persistent challenges" exist with respect to hiring and retaining a diversity of attorneys generally, and that it will take "several decades before either women or minority attorneys are represented among partners commensurate with their total representation among all attorneys at signatory firms."
Although diversifying the legal profession remains an elusive goal, there are signs of progress in the ways law firms approach the issue. The evolving conversation - particularly among corporate and law firm leaders - about why diversity is worth pursuing is perhaps the most heartening harbinger for the future success of the many initiatives at firms across the country.
Doing the Right Thing
In the beginning of affirmative action efforts, law firms set out to hire diverse talent because it was the "right thing to do." Coined "Diversity 1.0" by Veta Richardson, then executive director of the Minority Corporate Counsel Association (MCCA), this notion of diversity as a moral imperative arose from the populist belief that "fairness is at the heart of the justice system, and a diverse legal profession assists in getting more people to buy into this principle." This well-intentioned impulse found favor with lawyers and HR professionals who also recognized that acts of racism and sexism in the workplace would lead to litigation, not to mention bad press.
In hindsight, Diversity 1.0 was a simplistic approach to a multifaceted problem. David Wilkins, a law professor at Harvard University who consults with major international law firms about diversifying the legal profession, notes that law firms are complex mixtures of businesses and professions, with loosely organized entrepreneurs operating in competitive markets. Attorneys who are hired because it's the "right thing to do" can suffer in these environments if they are perceived as having been hired to further a social justice agenda, rather than because they are exceptionally capable and well-qualified to do the job.
The Business Case
In recent years, the idea of diversity in the legal workplace has shifted from a moral imperative to a business imperative: "Diversity 2.0," in Richardson's parlance. Simply put, diversity now matters to the corporations that law firms serve. Some corporate clients have imposed consequences on law firms that do not meet diversity targets.
As the U.S. Supreme Court recognized, "major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints." (Grutter v. Bollinger, 539 U.S. 306, 330 (2003).)
However, this is not new news. In 1999 Charles Morgan, then general counsel at BellSouth Corporation, published "Diversity in the Workplace - A Statement of Principle," which put law firms on notice that the signatory corporations would weigh law firms' commitment to diversity when selecting outside counsel. Although more than 500 general counsels signed the statement, it ultimately had little impact because it did not hold law firms accountable for failing to diversify their attorney ranks. Five years later, ethnic minorities still comprised less than 5 percent of the partnership ranks at the nation's largest law firms, and women about 17 percent, according to the National Association for Law Placement (NALP).
In 2004 Rick Palmore, then general counsel of Sara Lee Corp., penned a "Call to Action," which went further by stating that signatories would "end or limit relationships with firms whose performance consistently evidences a lack of meaningful interest in being diverse." More than 100 corporations signed on to that pledge. Despite its good intentions however, the "Call to Action" failed to have any appreciable effect on diversity at large firms, particularly at the partner level.
This sad fact has not gone unnoticed. As a report by the American Bar Association recently observed, today "corporate clients increasingly require lawyer diversity and will take their business elsewhere if it is not provided." (American Bar Association, 2010 Diversity in the Legal Profession: The Next Steps.)
Marla Persky, general counsel of Boehringer Ingelheim USA Corp., the world's largest privately held pharmaceutical company, and senior vice president of its U.S. Law Department, represents a case study in corporate diversity policies. Persky believes diversity is a business imperative. To be competitive, she explains, her company "needs people who can speak the language of the customers and understand their experiences." She adds that businesses must also reflect the composition of the communities in which they operate and "strive to attract employees who bring diverse backgrounds and experiences that will help the company achieve its business objectives."
For Persky, this means that the outside firms she hires must have the diversity of personnel necessary to help resolve her company's legal problems with creative solutions and deeper insights. She holds outside counsel to the same standards she sets for the legal department she oversees. "If firms want Boehringer Ingelheim's business," says Persky, "they have to be willing to work in accordance with the values of our company, which means placing a high value on diversity within their own organization."
To this end, Persky's outside counsel firms complete a diversity survey, which is graded, after which each participating firm receives a "report card." Law firms that don't meet her diversity expectations have two years to remedy the situation. If they don't measure up by then, Persky won't do business with them.
Persky's definition of diversity is expansive. Though obtaining demographic information on employees' sexual orientation and gender identity may be a "more delicate discussion," Persky nonetheless includes lesbian, gay, bisexual, and transgender (LGBT) attorneys in Boehringer Ingelheim's Annual Diversity Scorecard.
The business prerogative may well impact law firms' commitments to diversity, but it necessarily has limited reach. The small steps forward in recruiting attorneys have not been matched in the areas of retention or promotion.
The Center for Legal Inclusiveness (CLI), a Colorado nonprofit focused on inclusion in the legal profession, observed in its 2010 report: "Many of our workplaces invest in the recruiting and hiring of diverse populations only to see increasing attrition rates within these groups." Many talented lawyers are simply walking away from big firm practice.
So the question remains: What will motivate law firms not only to diversify their workforces but also to retain and promote the attorneys they hire?
CLI may have the answer. In an initiative that could be dubbed "Diversity 3.0," the center advocates "inclusive excellence" in the legal profession - that is, "recognizing and valuing the perspectives, backgrounds, life experiences, and world-views of every person without regard for race, gender, ethnicity, nationality, disability, sexual orientation, or gender expression." The goal is to draw upon the experiences and talents of a firm's entire workforce, including "those with different backgrounds."
Inclusive excellence focuses on maximizing a firm's human capital so that the attorneys who firms fought so hard to recruit are appreciated for their unique contributions. To avoid the pitfalls of both Diversity 1.0 and 2.0, law firms must view diversity and inclusion together - along with the pluralism of thought and perspective that are their natural outgrowths - and embrace them as stand-alone assets.
For instance, every person brings his or her own perspective and talents to the table. Each person also brings access to different social contacts, and thus potential clients - whether through different board positions, club affiliations, interests, hobbies, or academic backgrounds. As a law firm becomes less homogenous, its collective perspective broadens - and with that wide sweep comes more complete contact with the outside world. This benefits both the attorneys who feel more invested in a firm that supports and appreciates them, and the firm itself as it expands its talent pool, practice areas, and potential client base.
Recasting individuals' differences as business assets recognizes the worth of each attorney at the firm, including those in the so-called majority group: Each attorney is encouraged to fully utilize his or her unique background and experience to the firm's advantage such that the whole becomes greater than the sum of its parts.
Diversity in this context encompasses more than merely race, ethnicity, and gender. "The shift to inclusion moves beyond race and gender and includes diversity of thought, sexual orientation, education, and disabilities," says Nancy Di Dia, Boehringer Ingelheim's chief diversity and inclusion officer. Unlike diversity, which is about the numbers, "inclusion cuts across all lines and is as much about our similarities as our differences."
Boiled down, then, the next frontier for the diversity conversation is true inclusiveness. As Veta Richardson puts it, the legal profession should now develop so that its members can stop thinking about who isn't represented. "Diversity 3.0 is a more sophisticated workplace model," she says, "and is partly a response to the new generation of lawyers who are increasingly comprised of diverse individuals."
True inclusiveness requires more than a commitment to hiring attorneys with varied backgrounds. Promoting diversity cannot remain the sole responsibility of a hiring or diversity committee while the rest of the firm conducts business as usual. Rather, a firm's management team must appreciate and embrace its role in creating and maintaining an inclusive environment. In short, management must take responsibility for setting the tone for the entire organization. In some firms, the management team includes someone whose main responsibility is diversity, such as a chief diversity officer.
Harvard's Wilkins suggests that law firms emulate the team- and community-building models implemented by corporations that have long recognized that investments in their employees result in retention and loyalty and are critical to long-term sustainability. As Wilkins explains, it is "dangerous to have diversity without inclusion. Diverse attorneys must be fully integrated into firm life and practice." Participation in mentorship and professional development programs, enhanced access to clients and business development opportunities, and appointment to leadership positions on executive, management, and compensation committees are some of the ways firms can entrench attorneys in their organizations' cultures and futures.
Wilkins and Richardson agree that the legal profession has an ongoing talent war, and the failure of law firm leaders to create and maintain inclusive cultures will cause more talent to flee and seek other opportunities. An environment of inclusion will get every attorney more vested in the firm, and most will be more likely to stay.
Making It Work
The case for inclusive excellence is especially pronounced with respect to LGBT attorneys who have brought something different to the table - and to their firms' bottom lines - by developing sub-specialties devoted to LGBT legal issues, including estate planning and employee benefits.
The morass of ever-changing and sometimes conflicting laws pertaining to LGBT couples can provide a trap for the unwary client, as well as an opportunity for the well-positioned law firm.
Because state and federal laws regarding same-sex couples vary and continue to evolve, estate and tax planning for such clients requires highly specialized knowledge. An expertise in this area draws attention to a practice group and opens up a new potential client base - along with a ready source of referrals from other attorneys.
Moving Toward Inclusion
At the end of the day, promoting inclusion in the legal profession may be part of a larger social evolution. As American archaeologist Howard Winters summed it up, "Civilization is the process in which one gradually increases the number of people included in the term 'we' or 'us' and at the same time decreases those labeled 'you' or 'them' until that category has no one left in it."
Boehringer Ingelheim's Di Dia says the value gained from LGBT talent recognized by a welcoming organization demonstrates the value of "the wide-angle lens of inclusion." Wilkins agrees and looks at the bigger picture. He sees the repeal of the military's "don't ask, don't tell" policy as a sign of the shifting understanding among Americans that all persons, regardless of their sexual orientation, can make valuable contributions to society and the workplace. Indeed, the policy shift further confirms that the LGBT community is a critical source of talent. And this recognition is echoed by corporate America.
Has there been progress in the legal profession generally - and Big Law specifically - despite the disheartening news from recent diversity reports? Wilkins thinks so. He says that each time a woman or minority attorney makes partner, progress is made. With law firms focusing on these issues more than ever, the diversity movement has gained tangible momentum.
And yet, in this time of enormous uncertainty, the commitment to diversity and inclusion will surely be tested. As Wilkins notes: "Now is the time for leaders who care about diversity and inclusion in the profession to step up and figure out how to harness the energy around this discussion and turn that energy into long-lasting change."
Lisa A. Linsky is the LGBT Diversity and Inclusion partner in the New York office of McDermott Will & Emery; Nicole Pearl is a partner in the firm's Los Angeles office.