The Legal Intelligencer - Stagnation and the Law: When Diversity Efforts Flounder

By all appearances, the legal world is more diverse than ever. Firms tout their diversity efforts by featuring their diverse talent in any and all pictures published in their literature or on social media, releasing statements and engaging in marketing efforts to “celebrate” diverse achievements and holidays, and including diverse members in pitches and requests for information to clients—new and old. The statistics and experiences of diverse lawyers tell a different story. When questioned, attorneys of color (and especially women of color) describe a profession that is disinterested in making the genuine changes it needs to truly diversify the landscape but is instead just “phoning” it in to appear socially “woke” and aware to those watching.

Over the last decade, there has been an immense effort to diversify the legal profession but despite those efforts, the numbers reveal that the profession remains demographically stagnant—comprised mainly of white, older males. The diversity that exists in law school classrooms across this country does not translate to the law firms who hire those students, and unsurprisingly, the higher up the ladder at law firms one looks, the less diverse its makeup. On June 22, 2020, the ABA released a new report, “Left Out and Left Behind: The Hurdles, Hassles and Heartaches of Achieving Long Term Legal Careers for Women of Color,” found that even though women of color comprised 14% of all associates, the percentage of women of color partners has remained stuck below 3.5%. Women lawyers of color surveyed were far more likely to want to leave the profession than their white colleagues; were more likely to be subjected to both implicit and explicit bias; and were more likely to report factors that blocked their “access to success,” including access to business development opportunities, being perceived as less committed to career and being denied or overlooked for promotion. These sentiments reflect how attorneys of color—especially women of color—feel unwanted by their colleagues and pushed out of the profession. In discussing the impact of racial and gender biases on women and women of color in the legal profession, a 2018 ABA report from the Commission on Women in the Profession found that 57% of the women of color surveyed had been confused with custodial, administrative or courtroom staff, compared to just 7% of white men regularly confronting assumptions that they were unlikely to be lawyers. Most recently, the Maine State Bar Association surveyed its 5,500 attorneys and the results revealed that Maine’s BIPOC (Black, Indigenous, and people of color) legal community feels largely invisible to and face biases from both members of the bar, the judicial bench and clients.

As stated in the 2021 NALP Report on Diversity in U.S. Law Firms, “in 2020 NALP called on its members and the legal profession as a whole to address more directly and more forcefully the many ways that the profession has failed Black lawyers and the Black community. Although the percentages of Black partners, associates, and lawyers overall increased in 2021, the representation of Black lawyers in law firms still trails that of Asian and Latinx lawyers and those gaps have widened over time. The share of associates who are Latinx women surpassed the percentage of Black women associates for the first time in 2021, and the rate of growth in the share of Black associates overall lags behind that of Latinx and Asian associates. Similarly, most of the increase in representation of partners of color since 2009 can be attributed to an increase in the number of Asian and Latinx partners, and the growth of Black partners has increased by only half a percentage point during this time period. In 2021, women made up just 25.92% of all partners, and Black women and Latinx women each continued to represent less than 1% of all partners in U.S. law firms.”

So where do we go from here? Cries for more diversity coming from both within and from outside the profession have delivered superficial results with very little genuine change. In certain instances, clients have stepped in demanding that the big law firms they hire have diverse attorneys staffing their matters but this practice does not seem to be making much of a difference. In a study of 136 corporations, half of which identified as Fortune 500 companies, over half of those responding dole out less than 10% of their law-firm business to racial or ethnic minorities. Furthermore, a vast majority of clients surveyed (82.5%) have not set any diversity goals for their outside firms. Accordingly, external client pressure—especially pressure that does not seem to be nearly consistent or robust enough—will not forge lasting change.

As with all things, true change does not take hold unless it comes from within. Law firms will not become diverse until its members demand it. Lawyers—especially those at the top—must buy in to the notion that the composition of law firms should mirror the demographic makeup of the population. This requires everyone—especially those at the top and with the most power— to affirmatively decide to act against their own best interests in preserving the status quo generally in order to create an environment where BIPOC talent can and want to thrive. Hiring people of color has never been an issue for law firms—the problems arise in retaining that talent. BIPOC lawyers either leave when they do not see a viable path forward to long-term stability and success within the firm or are pushed out by members who are not accustomed to seeing lawyers who look and act differently than themselves. Until the gatekeepers at law firms (who usually end up forestalling important and meaningful change by protecting the monolith of lawyers at the top) are willing to upset the current power structures, true and actual diversity will never take hold.

Reprinted with permission from the November 23, 2022 issue of The Legal Intelligencer. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.