The Legal Intelligencer - The Diversity Scavenger Hunt: How to Attract and Retain Top Talent
On Feb. 18, I had the opportunity to present “The Diversity Scavenger Hunt: Effective Strategies to Attract and Retain the Best Team Inside and Out” at the American Bar Association 2022 Corporate Counsel CLE Seminar in Orlando, Florida. The program was the result of a collaboration with co-presenter Leslie D. Davis, president, and CEO of the National Association of Minority and Women-Owned Law Firms (NAMWOLF), and contributor Laurie N. Robinson Haden, president and CEO of Corporate Counsel Women of Color (CCWC). Davis and I presented to an engaged audience of in-house counsel and firm lawyers, incorporating input from Robinson Haden who was unable to join us live. Diverse members of our profession continue to face challenges despite efforts to remediate longstanding obstacles to achieving respect and full access. I was reminded of the first time I presented to the ABA Corporate Counsel group in 2013 on “Taking the High Road: How to Deal Ethically With Bullies Who Don’t Play by the Rules,” which included a discussion on the interplay between bullying and bias in the law. I have written and spoken often on how bias impacts lawyers. Despite the increased focus on diversity, inclusion, and elimination of bias, unfortunately, there is a stubborn resistance to change. We discussed obstacles to advancement, common excuses for glacial progress, and strategies for effecting change.
As leader of two premier not-for-profit organizations committed to advancing diversity in the legal profession, my collaborators Davis and Robinson Haden are particularly poised to tackle these sensitive issues. With Davis at the helm, NAMWOLF continues to pursue its mission to “Promote diversity in the legal profession by fostering successful relationships among preeminent minority and women-owned law firms and private/public entities.” Founded in 2001 by a small cadre of women and diverse lawyers with the vision to “Achieve equity in legal opportunity through minority and women-owned law firms,” NAMWOLF now boasts over 200 firms nationwide that are owned by women, minority, and LGBTQ+ lawyers with stellar credentials. Admission to NAMWOLF involves a rigorous assessment by in-house counsel from Fortune 500 companies. Diverse ownership alone does not guarantee admission as the institutional clients that engage NAMWOLF firms expect top-notch lawyering. Long-time supporters include the Inclusion Initiative, over 30 companies committed to a demonstrable increase in the engagement of women and minority-owned law firms. Since the inception of the Initiative, participating companies, have spent over $1.6 billion on diverse law firms. That does not mean that the work is done or that barriers to entry do not persist.
Recognizing these barriers and the isolation of often being the only woman of color in a room of lawyers, Robinson Haden was inspired to create a place where women of color could feel connected and have an opportunity to share effective career strategies. The CCWC mission is “to provide a support network to in-house women of color and to facilitate networking around the nation and abroad, promote career advancement and the success of in-house women of color, and promote all aspects of global diversity in the legal profession and workplace.” The need was obvious and has been proven as CCWC, founded in 2004 with 10 members, now has over 4,700 members. Members, which include general counsel and top in-house legal offices from premier global companies, must meet 3 essential criteria to join the organization: have a law degree and practice law; work at a Fortune 100 or Forbes 2000 company, a not-for-profit, or a government agency or serve as a judge; and (3) be committed to networking and developing relationships with corporate counsel women of color. CCWC also boasts a robust roster of institutions and law firms committed to supporting their efforts to combat the impediments to advancement for diverse lawyers, especially women of color.
The threshold issue to any conversation about DEI is to understand the substance behind critical terms as they do not mean the same thing to everyone. For our purposes, diversity is not just focused on gender and race, or on the longer list of categories protected from discrimination under federal, state, and local law. When you look at diversity to include geography, education, socioeconomic status, and social connections, you can better appreciate that the challenges facing historically marginalized groups are complex, and require sophisticated solutions that consider these barriers. For example, as Robinson Haden wisely notes, if lawyers of color do not belong to the same private clubs, attend the same schools, or grow up in the same places, as the decision-makers in an organization, they are at a distinct disadvantage compared to colleagues who do have those connections. This impacts access to high-profile assignments, interactions with clients, and other opportunities that effect rainmaking and advancement in law firm settings. Robinson Haden suggested we consider the recent headlines about the lawsuit filed by former Miami Dolphins coach Brian Flores against the National Football League (NFL), the Dolphins, and two other NFL teams alleging racism in the recruitment of coaches. I do not know or have any relationship to the parties, but one allegation resonated with me. Flores alleges he had been subjected to a sham interview, where the team did not intend to consider him fairly. He contends that they were going through the motions, as required by the NFL to consider diverse candidates when they had already decided on a white male. Virtually all NFL coaches are white men. Is it a surprise that many of these coveted positions are awarded to relatives of men who are already on coaching staffs? If people of color are not already represented in the NFL coaching staffs or on law firm executive committees, they are less likely to have mentors or sponsors who can propel them to the next level. Often, established organizations deny blame in these situations offering excuses why others are excluded.
There are several excuses (or myths) that pervade the profession negatively impacting diverse lawyers. An oft-cited excuse why organizations do not have a diverse team is because “we cannot find anyone.” Another is that “they are not qualified.” The facts don’t bear out these excuses. What it may actually mean is they have not looked very hard or are not willing to look in unfamiliar places. Consider some of the controversy surrounding President Joe Biden’s announcement that he would nominate a Black woman to fill the U.S. Supreme Court seat being vacated by Justice Stephen Breyer. Even though Biden’s nominee Ketanji Brown Jackson has dual Harvard degrees and deep experience in practice and on the bench, while many will applaud this monumental nomination, others will question whether the nominee is less qualified. Despite many highly credentialed Black women judges and lawyers already on the bench, the nominee and hopefully the newest justice, will inevitably face skeptics who will question her worthiness compared to others on the court. These are real challenges to diversity in the profession.
Another troubling myth is that legal employers are giving women and minorities opportunities by assigning them to diversity and hiring committees and including them on client pitches. Many of us who have been in that position (especially when the client representative making the decision on which firm to hire is themselves obviously diverse) know the folly of this. As Davis noted, it is “OK to be intentional in considering who is on a team.” Davis elaborated, we should consider “different perspectives as well as minorities and women” because it’s a “matter of the math—the more points of view in the room, the better the result for the client.” Further, experience shows that for women and minorities to have a meaningful impact on firm culture, a critical mass is essential. Tokenism does not work. Some organizations do this successfully; their actions are consistent with their words. Others do not act in accordance with their stated corporate culture supporting DEI. It is common for a diverse lawyer to be invited to a client pitch, with diversity being a factor on which the firm is being evaluated, to find out later that they were excluded from the project they helped win. As women and minority lawyers continue to face this humiliation, inevitably they leave. The revolving door syndrome reflects the difficulty in retaining talent; if people don’t feel welcome, then they won’t stick around. Inclusion may involve inviting lawyers to the pitch, but belonging means you treated people like they are welcome, assuring they reap the rewards—assignments, origination credit, and promotion.
The revolving door issue leads to another myth about DEI in the legal profession, namely that women and minorities leave firms because “they can’t cut it.” I first heard this explanation over 35 years ago when a diverse associate with stellar credentials left the firm for public service. A partner commented that “some people are just not cut out for a place like this.” I never forgot it and continue to celebrate the extraordinary accomplishments of the departing lawyer who after initial public service went on to become a leading, rainmaking partner at one of the country’s most prominent firms before returning to public service in two Presidential administrations. Notably, the firm he joined many years ago put its money where their mouth was. That firm lived its stated mission of attracting and retaining the best and the brightest in our profession, including my former colleague. A similar myth is that women leave firms to go in-house so they “don’t have to work as hard” and “can have more time with their children,” while men move because they “want to get involved in the business side.” These biases further degrade the work ethic of women and men who move in-house for a range of personal and professional reasons.
Finally, we addressed another myth that clients are effecting change by selecting diverse lawyers to handle their matters. Many people who make the decision of which firm to engage for a matter feel they must use the large firms they have always used. There is comfort in that, but it perpetuates discrimination. As Davis noted, that’s “incumbency bias.” Some clients repeatedly hire the same lawyers because that is their comfort level. Clients must commit to assuring diverse lawyers play meaningful roles and receive credit if the goal is to advance the needle. Unfortunately, diverse lawyers are often shortchanged on access to meaningful work or financial credit. As Davis can attest, that is a major reason why talented women and minority lawyers leave large firms and venture on their own or join diverse-owned firms. Lawyers at NAMWOLF firms (my firm has been fortunate to be a member for over 10 years) have successfully handled high-stakes matters for sophisticated clients under intense public scrutiny. One avenue, according to Robinson Haden, is the growth of diverse lawyers in-house who can assign work. Another interesting phenomenon that Robinson Haden shared is that as more diverse lawyers in-house develop relationships, they may return to private firms with books of business and valuable industry expertise. By returning to firms as partners with financial clout they can influence cultural change and open doors for others.
There is no easy solution to a problem so resistant to change. Progress has been disappointingly slow. It takes genuine commitment from industry leaders with the ability to engage outside counsel, assign work, and insist on measurable results in order to open opportunities for women and minority lawyers and to reduce attrition among our ranks.
Reprinted with permission from the March 3, 2022 issue of The Legal Intelligencer. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.