I. Introduction

In today’s world where every law firm claims to value diversity throughout their ranks and prioritize it as a top concern in recruiting, it is easy to forget that even in the 1960s, Secretary of Labor Willard Wirtz called the American legal profession “the worst segregated group in the whole economy.”  [1] According to a 2003 American Bar Association study, slightly more than 89% of all lawyers in the nation are white.  The overall numbers of women and minorities at the associate level are improving substantially, but the odds of making partner stay low. [2]  Lawyers of color account for less than 5% of partners in all of the largest American law firms, according to the National Association for Law Placement.  [3] White males have five times better odds than women of making partner, and seven times better than Asian-Americans or African-Americans. [4] Minority-owned firms provide a greater likelihood for advancement for many associates towards partnership, and the Clinton administration’s programs worked to create a better environment for such firms. [5] However, in recent years a backslide has occurred; legal and political changes have made it more acceptable for corporations and the government to give short shrift to minority-owned firms. [6]  Still, without pressure from the government, market forces are causing diversity in larger firms to become a business imperative. [7]

II. External Pressure to Diversify

While large law firms have advised their own clients to diversify their employee population, they themselves have made virtually no progress in diversifying their own ranks. [8] In a legal profession “that prides itself on promoting equal opportunity under the law,” firms are failing to adhere to their own standards. [9] Meanwhile, rapid globalization of international commerce is changing the face of the business world. [10] The Supreme Court has stated that “today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” [11] Companies and law firms of today have found that maintaining a strong posture on diversity promotes market share success.  [12]

Some of the largest corporate clients to law firms are demanding that numbers of minority employment through the associate and partner ranks improve – and threatening to fire firms that do not comply or show adequate progress. [13] The business world today looks to become “the catalyst to change law firm culture.” [14] Some clients even ask for not just diversity statistics overall for the firm, but also for the figures relating to the team of lawyers working on the specific relevant matter, and the hours billed by minority lawyers. [15] Clients are put off by a “beauty contest with a token lawyer in order to try and demonstrate diversity,” says one chairwoman of a large firm’s diversity committee. [16] The president of the American Bar Association stated that “Public confidence in our profession – and the justice system as a whole – requires that law firms and the judicial system reflect the full diversity of our society. Today they do not.” [17]

The road ahead for law firm recruiters is a difficult one – though their corporate mottos and firm policies paint a picture of collegiality and a world where skin color is of no consequence, the reality is turning out to be the opposite. [18] Aggressive recruitment of minorities is being painted as a lose-lose situation for everyone when the program is not well run.

III. Internal Strife

White attorneys complain among themselves that minorities are being given special treatment and hired only to pay lip service to political correctness, and resent their minority colleagues for what they see as an unfair exemption to the meritocracy. [19] A former white partner at a San Francisco law firm stated that he was exasperated with “an excessive amount of whining” by minorities at the firm. [20] Meanwhile, a black lawyer at the same firm stated that he “was getting really frustrated” with the situation as well. “Success or failure depends on developing mentor relationships, and those are much more difficult for minorities to develop if there are no other minorities in positions of influence or power,” he said. [21]

Indeed, attorneys of color are sometimes called “a token presence in the legal system.” [22] Their numbers are high enough to undermine claims of racial exclusivity and elitism, but far too low to create a sense of belonging, community, or comfort in the legal community.  [23]  Their photos may be strategically present in firm brochures and websites to demonstrate firm diversity, but at the same time, many minority lawyers complain of sitting on the sidelines without meaningful work commensurate with their abilities.  [24] Indeed, the stress of feeling culturally profiled “often creates an unproductive atmosphere of heightened scrutiny and identity performance constraints that lead workers to behave in less authentic, less innovative ways.” [25] Though many recruitment programs state that their goal is to achieve an authentic mix of perspectives from all backgrounds, minorities may end up feeling as though their success depends on behaving like the white majority around them.

IV. A Vicious Cycle

Minority lawyers at large law firms state that they receive fewer assignments that are generally lower in quality, and request better mentoring and a desire to stop feeling as though they fall short in socialization into the firm culture. [26]   These associates feel as though they are receiving the “nuts-and-berries type work” while white associates more easily receive the “the filet mignon work.” [27] The statistics reflect that their complaints have some basis. [28] 59% of white associates at large firms reported working on more than 9 matters in the previous 6 month period, while only 33% of black attorneys and 38% of Hispanic attorneys said they had the same number of assignments. [29] Meanwhile, 71% of blacks and 58% of Hispanics at large law firms reported that they spent 100 or more hours on document review or similar low-level work, while half that number of white associates reported the same. [30] 52% of white male associates stated that they joined partners for lunch or breakfast, as compared to a 29% report of the same by black associates and 36% of Hispanic associates.  [31] The reason for these statistics is, ironically, because of diversity initiatives of these firms. Such preferential hiring practices give the impression that black and other minority associates have lesser skills, and are therefore entrusted with less responsibility and given less opportunity to prove themselves. [32]

Sadly, the end result of this state of affairs is the high attrition rate of minority associates. After only two or three years, the proportion of both Hispanic and African-American associates falls very sharply at these top 100 American law firms – by around 40%. [33] The diversity programs in some firms are essentially self-defeating because of imperfect implementation. Though the initial hiring numbers are respectable, the treatment of minorities at these large law firms are so unpalatable that the end result is that leave the firm that they feel never truly invested in them.

V. Conclusion: Diversity Initiatives Must Include Retention

In order to improve minority associate retention into the partner levels, there have been key factors identified as a step in the right direction. These include: mentoring relationships, adequate training for all employees regarding diversity initiatives, and exposure to valuable work and client relationships. [34] A partner at Seyfarth Shaw states, “It’s not just about ensuring affirmative-action compliance. It’s about treating people with respect and managing them so they will feel fully motivated.” [35]  Another corporate executive warns against making too many promises too quickly; changes need to occur slowly and with the knowledge that sacrifices must be made on all fronts.  [36] Besides job fairs and minority recruitment in hiring practices, retention must be a focus. Formal mentoring programs, emphasized lateral hires of experienced women and minorities, and the establishment of equal treatment programs ensuring equal access to work assignments, partner contact and client visibility are keys to this goal. [37] The bottom line, however, is that top-level management at the firm must solidly support all the initiatives, lest they remain mere “window dressing.”  [38]

[1] David B. Wilkins, A Systematic Response to Systemic Disadvantage: A Response to Sander, 57 Stanford L. Rev. 367 (2004), quoting Geraldine R. Segal, Blacks in the Law: Philadelphia and the Nation 218 (1983).

[2] Dennis W. Archer, A. Diverse Directive: We Need More Lawyers of Color to Help Promote the Rule of Law, 89 A.B.A.J. 8 (2003).

[3] Karen Donovan, Pushed by Clients, Law Firms Step Up Diversity Efforts, N.Y. Times, July 21, 2006, at C6, available at http://www.iht.com/articles/2006/07/21/business/web.0721legal.php.

[4] Reginald E. Jones, Law Firm Diversity Initiatives, Metro. Corp. Couns., Feb. 2004 at 28.

[5] Richard C. Reuben & Debra Cassens Moss, Affirmative Inaction: Some Minority Firms Report a Decline in Business, 82 A.B.A.J. 18 (1996).

[6] Id.

[7] Adele Nicholas, The Kindler Model, Corp. Legal Times, March 2005 at 34.

[8] Alex M. Johnson, The Underrepresentation of Minorities in the Legal Profession: A Critical Race Theorist’s Perspective, 95 Mich. L. Rev. 1007 (1997).

[9] Id.

[10] Jones, supra note 4.

[11] Grutter v. Bollinger, 539 U.S. 306, 310 (2003).

[12] Jones, supra note 4.

[13] Donovan, supra note 3.

[14] Nicholas, supra note 7.

[15] Donovan, supra note 3.

[16] Id.

[17] Archer, supra note 2.

[18] Jerry Crimmins, Big Firms Hurt Minorities; Selves, Chi. Daily L. Bull., Aug. 18, 2006 at 1.

[19] David Tuller, True Colors: Racial Diversity in the Workplace May Get Plenty of Lip Service, But in Private, Min, San Fran. Chron., Mar. 3, 1996, at Z6.

[20] Id.

[21] Id.

[22] Margaret M. Russell, Beyond “Sellouts” and “Race Cards”:Black Attorneys and the Straightjacket of Legal Practice, 95 Mich. Law Rev. 767 (1997).

[23] Id.

[24] Tuller, supra note 19. See also Donovan, supra note 3.

[25] Laura Morgan Roberts and Darryl D. Roberts, Testing the Limits of Antidiscrimination Law: The Business, Legal, and Ethical Ramifications of Cultural Profiling at Work, 14 Duke J. Gender L. & Pol'y 372 (2007).

[26] Crimmins, supra note 18.

[27] Rebecca Berfanger, Panel: Progress Continues, Still A Long Way To Go – Attorneys Discuss Recruiting, Retention, The Ind. Law., http://www.theindianalawyer.com/html/diversity.html.

[28] Crimmins, supra note 18.

[29] Id.

[30] Id.

[31] Id.

[32] Id. See also Tuller, supra note 19 (“[Blacks] were convinced that they’d been locked out of the firm’s old-boy network, but many white attorneys felt the blacks simply hadn’t been up to the job.”)

[33] Crimmins, supra note 18.

[34] Practicing What They Preach: Ballard Spahr Fosters Diversity In-House And Among Its Clients, Metro. Corp. Couns., March 2007 at 56.

[35] Patricia V. Rivera, Firms Failing to Add Diversity as Pledged May Land in Court; Companies Cautioned Against Initiatives They Can’t Back Up, Dallas Morning News, Aug. 21, 2001, at 2D.

[36] Id.

[37] Jones, supra note 4.

[38] Rivera, supra note 35.