March 2016 | Earn one hour of MCLE Credit in Elimination of Bias
By Goldie Gabriel Johnson & Alex Ponce de Leon
Johnson & Ponce de Leon
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The business benefits of a diverse workforce are well-documented.
Several studies make clear that companies are more successful when they commit themselves
to hiring and retaining diverse leadership.
Just last year McKinsey & Co. published its 24-page “Diversity
Matters Report,” which examines proprietary data sets for 366 public companies
across a range of industries. In its research, McKinsey looks at metrics such
as financial results and the composition of top management and board. The study
clearly showed that diversity helps win the war for talent, increases employee
satisfaction, improves decision making and enhances the corporate image. Although
corporate America has made significant strides on diversity, the legal
profession has consistently and dramatically fallen short.
In May 2014, The American Lawyer magazine announced that the
legal profession is suffering a “diversity crisis.” According to the Bureau of
Labor statistics, 88 percent of all lawyers are white. The bottom line is that
we remain the “palest profession” with fewer diverse attorneys than physicians,
surgeons, financial managers and even accountants. In fact, the National Association
for Law Placement’s (NALP) 2005 report on attrition revealed “that 42 percent
of male associates of color leave their law firms within 28 months. Within 55
months, 78 percent have left … while minority female attorneys have the highest
attrition rate at 41 percent within 28 months and 81 percent within 55 months.”
Only one in five minority associates stays longer than five
years at a law firm. Although women make up close to a third of the profession,
only a fifth of law firm partners, general counsels of Fortune 500 corporations
and law school deans are women. Law firms and legal departments have failed to
hire, retain and promote diverse attorneys. Their career pipeline, training and
mentoring programs have simply failed.
In-house legal departments have been better than law firms
when it comes to diversity, but there’s still room for improvement. According
to a recent study by the Minority Corporate Counsel Association (MCCA), 20
percent of legal departments are headed by minority lawyers. The MCCA also
reports that 36 percent of legal departments were run by women. Legal
departments have increasingly developed diversity and inclusion programs to
address not just hiring, but promotion and leadership as well.
Despite such formal programs, few legal departments
can point to specific efforts to diversify, for example, 13 percent of
respondents to the MCCA study said they had made specific efforts to attract women
attorneys, yet 54 percent had attracting women attorneys as part of their
In-house counsel have consistently been pushing outside
counsel to become increasingly diverse. Nearly 12 years ago, Rick Palmore,
executive vice president and general counsel of Sara Lee, wrote the "Call
to Action," which galvanized more than 200 chief legal officers from
America’s largest corporations to commit to promoting diversity in corporate
legal departments, as well as in the law firms that corporations engage. The
initiative later grew into the Leadership Council on Legal Diversity, a
collaboration between general counsel and managing partners, which was formed
in 2009 and now includes more than 225 corporate chief legal officers and law
firm managing partners.
For most in-house attorneys, however, diversity is not just
about departmental diversity. More than half of large legal departments measure
the diversity of their outside counsel. Legal departments have been at the
forefront of change in the industry and have been demanding increased
inclusiveness from their outside counsel. In-house counsel control legal
spending and therefore have been able to use this influence to push law firms
in the right direction. Although change has been difficult, law firms have been
receptive to these efforts.
In-house legal departments can increase their support for
diversity in the legal profession by making certain that tracking diversity
efforts is more robust, consistent, and scalable. Tracking hours worked by
diverse attorneys, for example, can help corporate clients make sure that their
outside counsel is diverse in practice, not just select figureheads. Diversity
has to go beyond the pitch meeting and a relationship partner. Sadly, however,
only about 12 percent of departments do so, according to the MCCA.
In-house counsel need to leverage technology to quantify
diversity, set the tone and lead on pushing for better results. Modern
electronic billing platforms make this quantitative measurement process easier
than ever. This enables consistent tracking of hours worked and dollars billed
across multiple cases. Some legal departments require monthly or quarterly
monitoring of the billable hours of the diverse lawyers working on their
matters. In-house legal departments have also been savvy about ensuring that
diverse relationship partners receive the points and credit they deserve.
Increasingly, in-house counsel will specifically require transparency into the
point allocation process for a given matter.
Law firms and corporate legal departments also need to
address how unconscious bias permeates the hiring, retention, promotion and
development of diverse attorneys. The Nextions 2014 “Written in Black &
White Report” revealed that identical memos written by hypothetical Caucasian
and African American attorneys both named Thomas Meyer had substantially
different feedback due to confirmation bias. Research indicates that commonly
held perceptions are biased against African Americans and in favor of
Caucasians. This was evidenced in the two identical memos that resulted in two
very different sets of feedback. Undoubtedly, this sort of bias impacts
mentorship and attorney development.
In-house counsel need to take the lead and have consistent
dialogues based on the quantitative data. Legal departments need to educate
firms on their company’s diversity efforts and ensure that the firm and
associates handling the organization’s matters align with those efforts. It is
up to legal departments to let law firms know how they are doing, what they are
doing right and where they have room to improve. It is sometimes helpful to
provide comparisons and contrasts with how some of the other firms are
performing. Providing quantitative data is important for these comparisons, along
with qualitative examples. Similarly, law firms need to educate clients on
their diversity efforts and get the client's buy-in. Celebrating diverse
attorneys who lead arguments in court, who manage certain motions, or who lead
certain parts of a negotiation can help motivate other law firms. Law firms can
also proactively offer these opportunities to diverse attorneys even before the
client demands it.
In-house counsel can also reward firms that perform well
with more business or give firms a bonus if they improve diversity in
measurable ways. Alternatively, corporations can limit or eliminate their
association with law firms whose performance consistently shows evidence of a
lack of meaningful commitment to diversity. The quantitative tracking of hours will
be a crucial starting point for these more difficult, but more impactful
What else can law firms and legal departments do to address
diversity? Beginning in 2011, the State Bar of California’s Council on Access
and Fairness (COAF) convened a series of focus groups to study and develop
recommendations for legal employers to increase diversity in the legal
profession. COAF conducted the study, collected and assessed data over a
two-year period, and reported its findings. Here is a list of 10 areas with
accompanying specific tips that the report recommends law firms and legal
departments focus on in order to make systemic changes in recruiting, retaining
and advancing diverse attorneys.
1. Mandate diversity
training and maintain an inclusive environment. Support diversity
policies that encompass consideration of socio-economic background, racial and
ethnic ties, disability status, LGBT status, national origin and gender, i.e.,
respond to consumers’ demands that organizations look like the communities in
which they operate by requiring diverse staff. Change policies that negatively
impact diversity efforts. Foster an environment that nurtures initiatives that
improve on best practices. Bring in speakers to address the importance of
diversity and inclusion and to emphasize the benefits and strengths of
diversity, rather than moral reasons to promote it. Conduct workshops and
coaching for upper management. Train attorneys on acculturation. Retain a
welcoming and diverse environment. Make sure people feel comfortable being
openly LGBT. Recognize hostility and make bold and direct moves to address it.
Provide training focused on the impacts of implicit bias.
in focused recruiting. Train recruiters and hiring managers about the
impacts of unconscious bias and how to eliminate it. Participate in diversity
job fairs and outreach to diverse law schools, student organizations and bar
associations to identify diverse talent. Lateral hiring is a good way to
supplement diversity with proven talent. Recruit nationally. Involve the entire
office in the interview and selection process. Create in-house summer programs
for first-year law students. Identify specific traits and skills that are
needed to be successful and focus on them during the hiring process.
3. Focus on retention.
“The key to retention is that people feel supported. It’s the intangibles that
make people stay.” Encourage attorneys to put their families first. Programs
that allow for more involved parenting have encouraged lawyers who are mothers
to stay in the work force. Address misperceptions regarding clients not
supporting diversity issues, difficulty of reduced hour programs to allow work
on matters and incompatibility of reduced/flexible schedules with working on
exciting and challenging assignments. Evaluate the legal group’s work/life
balance policies. Focus performance reviews on quality more than quantity by
considering factors beyond the number of hours billed and trial successes.
Implement destigmatized and gender-neutral flexible work programs and job
retention programs to deal with maternity and eldercare matters. Ensure that
alternative work schedules do not unfairly interfere with promotion and
partnership opportunities. Train diverse attorneys on rainmaking.
4. Support career
development. Have diverse partners and diverse attorneys in senior
management. Champion diverse attorneys. Make sure diverse attorneys obtain
appropriate attention, quality assignments, guidance while working on projects,
timely feedback, career development and networking opportunities. Consistent
production of excellent work, attention to detail, reliability, diligence and
integrity are key components of having a solid career. Provide resources to
ensure this message is clear and to provide comments to ensure diverse
attorneys are aware of how they are perceived. Make compensation, promotions
and skills matrices transparent.
5. Offer and
incentivize mentoring programs. Mentoring programs are important tools to
improve diversity. Identify and work with nondiverse mentors to assist diverse
attorneys with professional development and to champion diverse attorneys’
promotion and success. Use mentoring programs to foster connections between
diverse attorneys and influential people in the organization. Reward mentees and
mentors for participating. Tie compensation to diversity efforts, e.g., list
diversity initiatives in job descriptions with an appropriate salary adjustment
confidence and risk-taking. Diverse attorneys must take credit for work done
well and must celebrate and boast of their achievements. Diverse attorneys
should be encouraged to volunteer for high-profile assignments and challenging
7. Create affinity
groups. Support inclusive affinity groups with no discrimination for
attending. Establish affinity groups that link diverse attorneys to leadership
in their law firms and corporations. Make affinity groups and activities
visible on company websites and in recruiting materials. Offer financial
support to diversity-related events.
diversity committees. Set up committees in local offices and have them
participate in recruiting. Task these committees with analyzing whether
including diversity as a metric in law school rankings results in increased
diversity in the legal profession. Share best practices between firms and
organizations through these committees.
9. Support minority
bar associations. Encourage attorneys to celebrate diversity and to connect
with community and minority bar associations. Law firms and legal departments
can participate and support diverse bar association initiatives and encourage
attorneys to become leaders in those associations. Active involvement in bar
associations can lead to higher visibility in the legal profession. Diversity
bars should also be encouraged to work more closely and collaboratively with
one another on achieving diversity goals.
10. Teach elimination of implicit
bias. Implicit bias is the silent killer of diversity efforts because it is
subtle and unconscious. Recognize the impact of hidden biases and the barriers
they create for diverse attorneys. To overcome implicit bias, diversity is
needed at all levels of an organization, especially in leadership and
decision-making positions. Perceptions that diverse attorneys are hired because
of their color and not their skill must be eliminated. Address apprehensions
about hiring attorneys with disabilities. Have attorneys and senior management
measure their biases by taking an Implicit Association Test (IAT) then train
them to change their biases that are based on personal values.
Our profession’s “diversity crisis” will not be solved
overnight and cannot be corrected by any single initiative. It will take
committed collaboration between in-house and outside counsel to implement
programs that make a long-term investment in diversity and the future of our
profession. Otherwise, the legal profession will remain the least diverse
Goldie Gabriel Johnson is senior counsel for 20th Century Fox Film Corp.'s feature film legal group and a member of the State Bar's
Council on Access and Fairness. A proud wife and mother of two, she also serves
a board member for the John M. Langston Bar Association and Push To Win
Outreach Inc. Alex Ponce de Leon is corporate counsel for Google Inc. who focuses
on discovery issues. He is a member of the Google Legal Diversity Council and
was named a 2015 "Rising Star" by the Minority Corporate Counsel
Association. He formerly served on the Council on Access and Fairness. These
views expressed in this article are the personal views of the authors.
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