In the four years since Roderick Palmore, then-general counsel of Sara Lee, issued a Call to Action to diversify the legal profession, awareness of the issue has continued to grow, resulting in an increased number of diversity initiatives within law firms and corporate legal departments. Despite these notable developments, however, obstacles remain in retaining diverse attorneys and in advancing them to partnership and leadership positions. In this month's roundtable, our panel of experts discusses strategies for addressing these challenges, as well as specific ways in which in-house and outside counsel can collaborate to jointly promote a more diverse legal community.
They are Ruth Ann Castro of Farella Braun + Martel and her guest Anthony O. Garvin, university counsel to The Regents of the University of California; Jack Yeh of Manatt, Phelps & Phillips; Angela Padilla of Orrick, Herrington & Sutcliffe and her guest Nicole Harris, corporate counsel of the Pacific Gas and Electric Company; and Tyree P. Jones, Jr. of Reed Smith and his guest Raymond J. Ramsey, vice president of legal and human resources of MV Transportation. The roundtable was moderated by California Minority Counsel Program (CMCP) Executive Director Tara Bedeau and freelance writer Bernice Yeung, and reported for Barkley Court Reporters by He Suk Jong.
BEDEAU/CMCP: What is the next frontier of diversity in the legal profession? Have we reached a plateau?
PADILLA: If we've reached a plateau, it's a low, unsatisfying plateau. The next frontier is true success for attorneys of color, particularly in big law firms. We have very diverse summer classes, intern classes, and junior associates, and then there's a sharp decline in the rates of promotion to partnership. Once associates make partner, the few of color often have a difficult time succeeding within their firm. We have a false sense of security because of the growing diversity among the junior lawyers.
CASTRO: The term that I have heard instead of "plateau" is "diversity fatigue." The challenge for both in-house counsel, as well as law firms, is retaining and advancing diverse attorneys because attorneys of color are still leaving law firms. Firms have made great progress in outreaching to law students, but the next effort is retaining attorneys of color and making sure that they advance to the next level. And not only that, but when they reach the partnership level, how can we ensure that attorneys of color flourish?
One of the things that Farella is trying to do is evolve in its own diversity dialogue. Yes, we have internal diversity workshops to increase awareness, but the next step is finding ways to market our diverse associates. Allowing diverse associates to gain marketing experience early and often, whether it's through contact with an in-house client on a particular case, or participating in client pitches, or going to a CMCP conference-those sorts of opportunities are invaluable. It also helps the bottom line to promote diverse associates. If you're looking to lower costs, obviously, associates are more affordable than partners.
YEH: If we've reached a plateau in the dialogue, we certainly have not in its progress. Given the fact that the national average of diverse lawyers at major law firms is only 13 percent, we've only begun climbing the mountain. The true question is: How many of those lawyers truly ascend the ranks to become leaders in law firms?
The dialogue on diversity started many years ago, well before the Call to Action. The issue is in everyone's consciousness, but we've experienced very little progress. We all now know what the problem is; we've all heard about the problem. The challenge has certainly not been with awareness. Our colleagues hear a lot about diversity. Diversity-related organizations offer events on virtually every day of the week, and press coverage continues to be prominent on the issue. The challenge has been in finding workable solutions in which all stakeholders at every level take responsibility for their implementation.
GARVIN: A plateau suggests that diversity programs have reached some level of success. I would agree with Angela [Padilla] that it's a pretty low plateau, if it is a plateau at all. Prior to joining the University of California, I worked with three law firms for over 25 years. The level of diversity in those firms was relatively low. So I think that much more needs to be done before the legal profession will reflect the diversity of the population of California.
I also come to the issue with a different perspective. While individual attorneys in University of California's Office of General Counsel have engaged in diversity efforts for years, we are only really beginning a formal office diversity program now, so we haven't really experienced diversity fatigue yet. But at least one way to prevent diversity fatigue is to get a commitment from the top management to support diversity initiatives, because everyone takes their cues from the top. If top management supports the diversity program, you won't have the kind of fatigue where diversity is marginalized.
JONES: Achieving results, incentivizing people to do so, and holding ourselves accountable must be the next frontier of diversity. We must set clear strategic objectives such as ensuring that diverse lawyers are represented in leadership positions within a firm, that they are included in marketing efforts, and that they are essentially and visibly included in the economy of our business. We must reward those who help accomplish that objective and hold those accountable who do not. Without clear objectives coinciding with our strategic business plan and core values, we will continue to operate in an ad hoc fashion, which rarely accomplishes lasting results.
CO-MODERATOR: Do you see globalization as a catalyst for diversity?
JONES: Hopefully, increased globalization will breed more creative thinking about talent recruitment and management. For example, a U.S.-centric approach to recruiting has centered on the candidates from only the top 10 to 20 American law schools. Since many attorneys practicing globally have been educated throughout the world, this more regimented notion of where a so-called "qualified candidate" can be found will hopefully evolve and expand.
Globalization also should foster more dialogue among colleagues. I have had conversations-including disagreements-on these issues with colleagues in all of our offices. This discourse forges relationships as we recognize that we have different perspectives that we must work to understand to best serve the multicultural clients with whom we work.
PADILLA: I haven't seen a positive effect on domestic diversity as a result of globalization. I think that's because the places where we frequently have offices internationally, such as in Asia or Europe, are sometime less advanced in many respects than the United States is in terms of racial and gender diversity. So while I agree with Tyree [Jones] that globalization ought to result in momentum for diversity domestically, I have not seen that happen, and I am concerned that it could have the opposite effect.
HARRIS: It could also lead to pigeonholing of diverse attorneys. For example, it could become easy for firms to say to Latinos who speak Spanish: "We want you to work on this project because it's a Mexico-U.S. project," even though the work isn't relevant to the practice area of that attorney.
CASTRO: I'm a litigator so most of my practice is domestic, but there are instances where diversity can be an asset domestically. For example, if you are a trial attorney and you are presenting in front of a diverse jury pool in San Francisco or in another multicultural area, you may be more "relatable" to the jury if you are an attorney of color.
BEDEAU/CMCP: Do you think there is an unrealistic expectation that the diversity problem should have been solved by now?
PADILLA: There seems to be some exasperation on the part of majority partners and management. I have heard comments such as, "We've tried everything and it's not working. We've brought in diverse summer classes; we treat people equally; we buy tables at all these diversity events; and we're exasperated." What I think is going on is that there is unconscious bias in law firms and probably in large corporations, as well. It's the micro inequities, or the subtle ways in which race, gender, and ethnicity can be used against someone in the workplace. The reason why people are not succeeding in firms and the reason management feels so exasperated is because no one recognizes these micro inequities. Part of the future of diversity is developing more language about how to talk about it, and then generating a more concrete understanding of how it plays out.
YEH: Traditionally, there's almost an implied expectation that the diversity challenge will be solved by the diverse lawyers themselves-by either diverse partners who are expected to manage their own ethnic or affinity group or by the firm's diversity directors who must develop and promote awareness, support, and processes for the firms' management teams. But we can't do it alone. The challenge for law firms has been in getting all lawyers-from the top down-to take responsibility for the development of the organization's diverse lawyers and to treat such efforts as seriously as all of their other key business responsibilities.
HARRIS: The two themes that I see as important to addressing diversity are: commitment and collaboration. In-house and outside counsel both have to be committed to diversity. It has to be a core value and then we can begin to collaborate together on our shared goal of achieving diversity in the profession.
I'm the chair of our diversity committee and I do have opportunities to talk with our outside counsel about diversity in a variety of settings. Communicating is key. For example, if Angela [Padilla] has a matter, I know that I can talk with her about the diverse associate who's working on it and how we can involve that person in a meaningful way.
RAMSEY: Clients can affect change because firms are not going to change their culture unless they realize that diversity is part of the business model. I'm proud to say that all of the matters I assign have a diverse team on them. And, in fact, many of the relationships that I have developed are not just with the partners at the firm; I also try to identify the emerging young associates, which I hope include minorities.
But who's teaching diverse attorneys how to generate relationships and clients? Because that's what it really comes down to for me. I need to make sure that the outside attorneys I hire not only have great legal skills; I also need to make sure we can work together. The importance of building a relationship is not often communicated to minority attorneys within firms.
CO-MODERATOR: For our corporate counsel, what enforcement strategies has your corporation used to ensure that law firms are honoring the value of diversity as expressed in the Call to Action?
RAMSEY: The way you enforce diversity is through a business imperative. I might peek at the budget first, but then I look at the names and faces of the team. I tend to look more favorably at the team if I see diverse attorneys. Our company is one of the larger minority-owned and female-owned companies in the country, so I can't bring in a team of non-diverse attorneys to work with the people in my company because outside counsel may not be able to relate to our company's diverse employees.
HARRIS: Many companies monitor work performed by law firms using billing software to make sure that matters are proceeding as planned. Some firms aren't fully aware of the internal reporting structures that exist within corporations. At PG&E, all departments report on what they are doing in terms of diversity. For example, we review our attorney spend with minority-owned firms and with majority-owned firms we look at the composition of the teams.
GARVIN: The University of California is in a slightly different position since we are a state agency subject to Prop 209. So we have not yet taken any enforcement action on the diversity front and probably are precluded from doing so. However, we intend to seriously encourage firms doing work for the university to develop and maintain a strong diversity program. We also intend to request information from firms so that we can monitor their progress toward diversity. But we're also going through a program where we're trying to consolidate the number of firms we use. There are more than 150 firms that did work last year for the university. As a consequence, we have a fairly high outside-counsel budget.
We're going to be aggressively working to reduce hourly billing rates and reducing our outside counsel costs by consolidating the number of firms we use. That's going to give us an opportunity to work with some smaller firms that have lower billing rates and that have a different structure than some of the larger firms. Hopefully, that will also help us work toward greater diversity. To the extent that firms don't have a robust diversity program, we intend to meet with the managing partners of those firms to discuss the importance of diversity to the university.
HARRIS: I don't think either in-house counsel or outside counsel can address diversity on their own. What I usually hear from outside counsel is, "Help us by requesting diverse attorneys." Where we, as in-house counsel, get stuck is in penetrating the inner workings of a law firm. For example, we could benefit from greater clarity on the dynamics of how credit is distributed within the firm-client credit versus the origination credit-and how it affects the careers of individual attorneys. Outside counsel can provide information to in-house counsel so that we know how best to support attorneys in advancing within the firm.
BEDEAU/CMCP: Do you think that law firm management is ready to partner intimately with clients, as has been described by in-house counsel, in order to promote diversity?
PADILLA: Whether firms are ready for it or not depend very much on the firm itself. Orrick is very ready for that kind of partnership and to hearing this kind of feedback from clients. We are committed to diversity and not just to those entry-level numbers, but to diversity at the highest levels. And that's because we have an internal belief that diverse teams deliver better service. We think that when you put together a team of people from diverse backgrounds, you necessarily get better legal representation because you have people coming together with different strengths, viewpoints, and abilities. So firms that are open to this kind of relationship with their client are those that understand diversity is about delivering enhanced client services.
JONES: This kind of partnership is already happening now at Reed Smith. Our chairman, Gregory Jordan, and Teri Plummer McClure, the general counsel for UPS, cochair a working group on recruitment, retention, and advancement. The group grew out of the Call to Action Summit on Diversity in April and it's comprised of corporate and law firm decision makers who will strive to develop best practices in these areas. Fielding this diverse group of lawyers brings a broad array of intellectual capital to bear on these issues. There's a concept-bringing together divergent interests and experiences to address a common issue-sounds like good business practice.
CASTRO: However, you also don't want law firm management to become too reliant upon their client to lead that change. It's great that major corporations like Wal-Mart are making commitments and insisting on changes by requiring outside counsel to satisfy certain diversity goals. But law firm management should not depend on their clients as the sole impetus for change. If you have clients with small legal departments or those that don't reinforce diversity, it might lead to a lax approach toward diversity. It's the firm's responsibility to internalize diversity, be proactive about it, and not become too reliant on the clients to guide them along that path.
YEH: I agree. Client demand can be a catalyst for change. But it's the firm's responsibility to make it happen. As the cochair of Manatt's diversity program, we've always focused on tracking our individuals from a retention perspective. Doing so involves an active internal management of an individual lawyer's opportunities within the law firm, including the quantity and quality of their workflow, real-time feedback, and availability of opportunities to develop themselves professionally. Lawyers function within an internal market in their firm. Their stock will rise or fall depending on how they and the firm monitor, understand, and manage their opportunities.
BEDEAU/CMCP: Given that corporate counsel is essentially a pipeline to the executive suite, what diversity initiatives do you employ within your legal department?
GARVIN: At the University of California, we've identified a number of strategies. First, we're going to distribute announcements of vacancies and position openings to a wider range of bar associations and traditionally underrepresented groups. We're also going to encourage greater outreach by attorneys within the office to minority and other underrepresented groups at various diversity events. We're also increasing the awareness of the in-house attorneys and staff regarding the importance of diversity through diversity training, celebrating diversity within the office, and developing a mentoring program to assist in the integration of new attorneys and staff. We also plan to monitor the progress of our program to make sure we are retaining people and that we are getting a greater pool of applicants for open positions.
HARRIS: We have a mentoring program and we have a diversity committee, which helps us maintain our external contact with the diversity bar associations and with the legal community at large. As part of the diversity committee work, we have started a summer program for law students who have demonstrated a commitment to diversity. All three initiatives address different components of fostering diversity within the profession.
RAMSEY: We're small, but if I was going to take a percentage, we're about 66 percent diverse, so this question doesn't apply as much to us. But I can address what can be done generally to help increase those numbers-and relationships are crucial.
For associates in law firms, your first client is going to be my colleagues here today, Tyree [Jones] or Jack [Yeh] or Angela [Padilla]-that's who you have to serve well first. Then, if I happen to mention on a call with Tyree that we have an opening coming up, the first person who he thinks about is the associate who's been doing good work for him, but who he knows may have an interest in going in-house. That serves a number of good purposes: Tyree gets this associate a job in an in-house position that they're happy about, and now Tyree has a relationship in-house with somebody in a company that's from his firm. And the way the relationship usually works is that it's reciprocal, so that person will likely send some work back to Tyree.
And you can begin to develop key professional relationships when you're really young. You can be a first- or second-year associate and someone you know goes into a large corporation at the bottom of the totem pole in the legal department-that's somebody you should get to know because hopefully you'll rise together. If you maintain that relationship, you're the first one he or she will call. Also, sometimes people tend to see things as a snapshot: I made a call, I did not get the case this time, so I'm not going to call anymore. But it's all about relationship building. You may not get the case this time, but you also don't know all of the internal considerations I may have had to consider for that particular matter.
HARRIS: I agree that relationships and collaboration are key to inclusion. It could be interesting to match in-house summer students or junior lawyers with their counterparts at law firms so that they can begin to develop these kinds of relationships. We have firms that would never think about it, and others firms who have expressed interest in it because they figure that if they lose attorneys through secondment who choose to go in-house, then those attorneys are future clients.
BEDEAU/CMCP: What strategies do you suggest law firms use to retain diverse attorneys?
YEH: The ascendancy of a lawyer within a law firm is critically tied to the kinds of opportunities they get and the quality and volume of work they perform within the law firm. Managing workflow in a manner that progressively broadens and hones their skill sets is essential.
PADILLA: The key to retention is giving associates the opportunity to do challenging, highly visible work, while also providing adequate feedback and mentoring. It's that simple. It's also about the connectedness that the individual feels to other people in the firm.
And partner retention is something we need to talk about as well, because the few diverse attorneys who actually become partners tend to bail out after a few years because they don't see a future of continued success. We've got to come up with ways to retain not only talented associates, but also talented partners.
CASTRO: From an associates' perspective, the key is getting meaningful work and feeling supported, getting feedback, and being valued. Firms can give their associates opportunities to develop their legal skills in numerous ways that aren't directly related to working on a legal matter. For example, several associates at my firm developed a formal summer pipeline program and organized presentations where lawyers at the firm share what it's like to practice in different substantive areas. Through the program, associates also host a presentation for participating students' parents about applying to college. The experience has allowed associates to develop organizational and presentation skills and to become more visible to the other attorneys and partners in the firm.
JONES: At the core, associates and partners must believe that they are on an upward trajectory-getting good work and getting credit for it. Getting on that trajectory requires mentoring, training and relationship building, no matter how long you've been practicing and regardless of whether that takes you out of your comfort zone.
At the risk of sounding like a broken record, we must manage our retention efforts more strategically. There will always be attrition, but losing desired talent because their value was not effectively communicated to them is a strategic blunder.