Progress Proves Elusive for Diversity in the Legal Profession

October 21, 2009 by  
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Karen Sloan
The National Law Journal
October 20, 2009
Five years ago this month, Roderick Palmore wrote “A Call to Action” — a pledge signed by the general counsel of some of the country’s largest corporations vowing to make diversity a major consideration in their selection of outside counsel.

Palmore, now the general counsel of General Mills Inc., wanted companies to put more business pressure on law firms to improve the diversity of their attorney ranks, where racial minorities long have been woefully underrepresented.

Diversity efforts across the profession mushroomed after the Call to Action was issued. Nearly every major law firm has created a diversity committee tasked with boosting minority and female representation. More scholarships for minority law students were established, affinity groups were formed and more so-called pipeline programs popped up to encourage minority students to pursue the law. Nary a week passed, it seemed, when a firm wasn’t unveiling a fresh diversity initiative or trumpeting an award received for its efforts.

Still, real progress in diversifying the profession has been painfully slow. Since 2004, the percentage of minority attorneys at U.S. law firms has crept up from 10 percent to just 12.6 percent in 2009, according to the National Association for Law Placement (NALP).

“Our narrative over time has been that change has been infuriatingly slow,” said James G. Leipold, executive director of NALP, which has been publishing minority attorney statistics for years in hopes of drawing more attention to the wide disparities that exist in the profession. “I think there is burnout, frustration and a feeling that, for all our efforts, the results are disappointing.”

STALLED RESULTS

While recognizing that attitudes toward diversity have improved over time and that minority representation has improved slightly, a sample of diversity advocates, law firm partners, general counsel and law school leaders generally agreed that the legal profession needs to make deeper, more collective changes to jump-start the stalled diversity movement.

“Although we have these initiatives, they are done very much on the surface level,” said Pamela Edwards, director of the Center for Diversity in the Legal Profession at the City University of New York School of Law. “Just increasing the number of minority attorneys is not the same as trying to significantly change the profession. That takes introspection, not a just a race to get to better numbers.”

The Minority Law Journal‘s Diversity Scorecard, which includes statistics from the largest and most profitable law firms in the United States, shows that the proportion of minority attorneys grew from 10.4 percent in 2005 to 13.9 percent in 2009. The publication is an affiliate of The National Law Journal.

“Am I satisfied with where we are? No,” Palmore said of diversity efforts during the past five years. “Do I think we’ve made some progress? Yes.”

Palmore cautioned that reported law firm figures on minority attorneys are sometimes inflated and don’t provide a full picture. For instance, most reports lump together all partners and all associates without breaking out the racial makeup of nonequity partners and staff attorneys.

The demographic of attorneys filling those less influential positions is a telling sign of whether law firms are truly embracing diversity, Palmore said. (Data about the diversity of staff attorneys is scant, but the 2008 Vault/Minority Corporate Counsel Association Law Firm Diversity Survey found that minorities made up 5.6 percent of equity partners and 8.5 percent of nonequity partners at large firms.)

FEWER AT THE TOP RUNGS

Although the available statistics oversimplify the diversity picture, they demonstrate that change has been significantly slower at the top rungs of the law firm ladder. The percentage of minority associates at firms increased from 15.1 percent in 2005 to 19.7 percent in 2009, up by 4.6 percentage points, according to NALP.

That increase far outpaced the growth among minority partners, which ticked up from 4.3 percent to 6.1 percent during that time. The dearth of minority partners is a problem that firms need to address to get more young minorities interested in the profession, said Fred W. Alvarez, a partner at Palo Alto, Calif.-based Wilson Sonsini Goodrich & Rosati and the chairman of the American Bar Association’s Commission on Racial and Ethnic Diversity in the Profession. The strong presence of minority partners — 18 percent — has helped Wilson Sonsini recruit young minority attorneys, he said.

“We need to create more success stories so that it isn’t such a leap of faith to say a diverse lawyer can be a general counsel of a law firm partner,” Alvarez said. “We’ve been suffering from a lack of role models in a whole lot of places.”

The lack of minority partners also hampers retention efforts because minority associates often leave their firms when they don’t see a clear path to partnership, said Helise Harrington, diversity partner at Sonnenschein Nath & Rosenthal.

“You can recruit associates like crazy, but if you don’t have any minority partners who are role models, you wonder how you can be successful in keeping them,” she said.

In addition to concealing the gap between the percentages of minority associates and partners, focusing on the overall percentages of minority attorneys at law firms masks some troubling trends among individual racial groups, Leipold said. The percentage of Asian attorneys increased slightly and has offset a loss of African-American attorneys, while the percentage of Hispanic attorneys stagnated in recent years, he said.

The legal profession lags behind nearly every other white-collar profession when it comes to diversity, statistics from the U.S. Census Bureau show. Blacks, Asians and Hispanics made up 11.8 percent of all U.S. attorneys in 2007. By contrast, those groups represented 19.9 percent of dentists, 25.5 percent of accountants and auditors and 27.7 percent of physicians and surgeons, although Asians accounted for a disproportionately high percentage of the doctors and dentists.

“We’re way behind other professions,” said Thomas M. Cooley Law School professor E. Christopher Johnson Jr., who spearheaded a number of diversity programs when he was general counsel for North America at General Motors Corp. “If these other professions can do it, we should be able to do it.”

DASHED EXPECTATIONS

Veta T. Richardson counts herself among those underwhelmed by the recent progress the legal profession has made on diversity. She took over as executive director of the Minority Corporate Counsel Association in 2001, expecting swift results because of the heightening interest in diversity.

“I optimistically thought I’d work hard for five years and things would have improved so much that we wouldn’t need to talk that much about it,” she said.

Eight years later, Richardson is still talking about diversity, although she conceded that most firms have moved past asking why they should change and now want to know how they can show better results.

For their part, a number of law firm partners insisted during interviews that firms have made meaningful changes even if the proportion of minority attorneys hasn’t shot up across the board. The biggest gains have been in improving attitudes about diversity, they said.

“The environment of law firms has become a lot more inclusive,” said Keith Vaughan, chairman of Womble Carlyle Sandridge & Rice. “There’s significant progress being made, but it’s a slow evolution.”

According to the Minority Law Journal‘s Diversity Scorecard, most firms improved their diversity numbers between 2005 and 2009. But more than 12 percent of firms saw their percentage of minority attorneys stay the same or decline during those years, including Sonnenschein; Womble Carlyle; Greenberg Traurig; New York-based Simpson Thacher & Bartlett; and Lowenstein Sandler of Roseland, N.J. (although some of those firms still maintain minority attorney percentages higher than the national average).

RECRUITING PATTERNS HURT NUMBERS

“Our percentage of minority partners has gone up slightly, but overall there has been a decline,” Harrington said of Sonnenschein. “We did very well at first, then a lot of firms caught up with us.”

Harrington attributes Sonnenschein’s dip in minority attorneys to several factors, one of which is the firm’s strategic plan to move higher up the AmLaw 100, The American Lawyer‘s ranking of the nation’s top 100 law firms based on financial data. The American Lawyer is an affiliate of the NLJ.

To improve its financial ranking, Sonnenschein is recruiting laterals with large books of business — a category traditionally comprising mainly white men and excluding many minorities or women — Harrington said. In addition, the firm has relied heavily on its summer program to bring in minority associates. Smaller summer and incoming associate classes have left the firm with fewer spots to offer minority candidates, she said.

Vaughan couldn’t point to a specific reason why the percentage of minority attorneys at Womble Carlyle remained steady at 6 percent on both the 2005 and 2009 scorecards. The firm has strengthened efforts through its diversity committee and its Womble Carlyle Scholars Program, which offers scholarships and summer jobs to diverse students. But it still grapples with recruiting from the fairly limited pool of minority law graduates, Vaughan said.

“My perception is that you have a certain number of minorities coming out of law school and everybody is trying to recruit them,” he said. “In a sense, we need to work on the supply side.

The so-called pipeline issue has become a greater focus of the legal diversity movement. It’s not clear how effective pipeline programs are in funneling minorities into law schools and on into firms, however.

The percentage of minority students enrolled at American Bar Association-approved law schools has barely budged during the past five years. Minorities made up 21 percent of Juris Doctor enrollment in 2004, compared to 21.9 percent in 2008, according to figures from the ABA.

The narrow pipeline is only part of the problem. Law firm recruiting practices are another major factor in the lack of diversity, according to academics and firm leaders.

“Yes, there is a relatively small number of people of color who go to law schools, but the top firms only interview at the most elite law schools, and then they only want the top of the class,” said Edwards. “The number only gets smaller and smaller. Law firms need to broaden their search.”

REASON FOR HOPE

Despite the disappointing progress on diversity in the legal profession — the slow increase in minorities at law firms, the stagnant number enrolled in law schools and the lack of diverse attorneys in top positions — there is reason for optimism.

Law firms are making gains in the diversity of summer associates and first-year associates, Leipold said. For example, more than 24 percent of summer associates in 2009 were minorities, compared to slightly more than 20 percent in 2004, according to NALP.

Several advocates said that the legal-diversity movement is poised for another surge following the formation in May of the Leadership Council on Legal Diversity (LCLD) and other initiatives from the ABA and elsewhere.

The LCLD, led by Palmore and Hunton & Williams managing partner Wally Martinez, brings together law firm managing partners and general counsel from major companies to hold legal leaders accountable for their minority numbers. The previous strategy, in which corporations and law firms tackled their diversity problems separately, didn’t yield the desired results, Palmore said.

“[Diversity programs] have been going on for a long time, and the results speak for themselves,” Palmore said. “They’ve been marginally successful, at best. That indicates a new approach is warranted.”

The key to making real progress in minority representation within the legal profession is to create broad, consistent professional-development programs for all young attorneys, not just minorities, he said. Attrition will decline when all associates believe that firms are investing in them and believe that they have true mentors — greater diversity will then follow.

“Right now, it’s almost accidental who gets developed and who doesn’t,” Palmore said. “You have talented people who don’t feel invested in, and they leave. I think that’s the biggest obstacle.”

Richardson views the new collaborative efforts as a pivotal third act in the legal diversity movement — the first two being the recognition that diversity makes business sense and the movement of firms and companies to address that issue on their own.

Like Richardson, Alvarez senses renewed momentum on the diversity front. So where does he see legal diversity in another five years?

“I’m hoping we’re going to be better than we are now, but I’m realistic enough to know that we won’t be done,” he said.

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