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[Opinion]

Not Without Hope

The legal profession’s quest for inclusion.

Written by Jai Collier


Inclusion


As we find ourselves grappling as a nation with issues of diversity, equity, and inclusion for the 244th consecutive year, some have begun to wonder if this is not an exercise in futility. Recently, a professional on LinkedIn reached out to me and stated, in no uncertain terms, that trying to force diversity and equitable policies within organizations is useless because people are just inherently self-serving and tribal, and no one will ever cede any power that they don’t have to. I disagreed, in part. Human beings are inherently tribal. We find a sense of comfort and camaraderie when surrounded by others who look and think, act, and react in the same ways. Yet, throughout our history, cross-cultural triumphs have changed the landscape of our nation and profession for the better.

Until Ada Kepley in 1869, no women could attend law school. It was not until after the 1950 Sweatt v. Painter U.S. Supreme Court decision that the first Black men were permitted to attend law school in Texas; up until that year, Texas paid for the legal education of Black men at integrated law schools in other states. Black women followed shortly thereafter. The list of seemingly insurmountable barriers continued to be disassembled and stripped away slowly, painstakingly, but not without resistance. In short, we are not without hope, and our nation is far too young to give up on. Yet few professions outside of the law still maintain such stark and glaring inequities in admittance and advancement. The question that continues to surface, year after year, is: Why? Why has the legal profession, particularly Big Law, remained so staunchly homogenous and inarguably resistant to decades of pressure, pleading, reasoning, and cajoling from various stakeholders to make a sincere effort at diversity?

Inertia
in·er·tia | \ i-’n r-sh ; noun

  1. a property of matter by which it remains at rest or in uniform motion in the same straight line unless acted upon by some external force.

  2. Indisposition to motion, exertion, or change.

Synonyms: idleness, indolence, laziness, shiftlessness, sloth.
Antonyms: drive, industriousness, industry.1

Law.com’s The American Lawyer releases an annual diversity scorecard ranking of law firms that records full-time-equivalent minority attorneys.2 It also includes equity and non-equity partners, special counsel, of counsel, and other staff attorneys. In 2018 and 2019, as the industry came under increased fire for its slow diversity growth, despite record numbers of law school minority graduates, firms became eager to showcase their diversity efforts and minority programs like Employee Resource Groups and Annual Diversity Summits. However, when AmLaw released the 2019 Diversity Scorecard, it revealed that despite some growth in “overall diversity” for nearly a decade, Black attorney numbers have remained abysmally low and stagnant within Big Law and general counsel ranks.3 The revelation was neither shocking nor novel, but seeing it in black and white spurred Turo chief legal officer Michelle Fang to release a list of actionable steps that firms and other companies can take to increase diversity.4

The Hispanic Bar Association of Austin, the Austin Black Lawyers Association, the Austin Asian American Bar Association, the South Asian Bar Association of Austin, the Austin LGBT Bar Association, and the Travis County Women Lawyers’ Association collectively presented the results of the 2018 Austin Law Firm Diversity Report Card in September 2019 with similarly mixed results.5 Of the 30 firms that responded, six firms’ grades had improved over the 2017 scores while three firms’ grades declined. Another 13 firms earned a failing score for their lack of diversity or failure to report. Much like the AmLaw report, the numbers for Black attorneys did not appear to be keeping pace with increases in diversity more generally.

Unfortunately, the lack of attorneys in these roles and advanced positions is not simply an issue of incoming diversity. And it is certainly not one of available talent, as Wells Fargo’s CEO famously misstated in September 2020.6 The number of excellent diverse attorney pipelines continues to grow.7 The real issue that has stalled the legal profession for years is the lack of inclusivity—a stubborn resistance to creating an internal culture that is intentionally non-hostile for attorneys of color and does not raise additional gauntlets just for its Black attorneys. The evidence of this can be found in minority and, specifically, in Black attorney retention rates.

Diversity and inclusion, much as any corporate culture shift, is and has always been a top-down strategy. No individual can be expected to “manage up” in such a way that creates a sense of respect for their value and presence that permeates an entire organization in the face of hundreds of years of propaganda to the contrary. It is not a burden that firms should pile on an associate atop the intense pressure of performing. Instead, leadership has to unequivocally demand that policies, practices, and traditions that are exclusionary, discriminatory, or result in a disparate impact on certain groups will not be allowed to remain unchecked and unchanged. Partners and executive leaders must then provide the resources and unwavering support to see those practices, policies, and traditions overhauled and new bias mitigating methods put into place.

But what is the practice of law without its hallowed and problematic traditions? What is Big Law if firms do not continue to interview and hire applicants with the same pedigree from the same handful of institutions who have completed the same coveted clerkships or edited the same notable law reviews? And where can general counsel be hired from if not Big Law? How else can they all be sure that their attorneys are elite? Despite mounting evidence that social power and influence play a major role in creating this pedigree for privileged candidates, many firms are reticent to depart from their comfort zones. Incredibly powerful forces within the legal profession still enjoy and cling to the practices and traditions that they cut their teeth on and do not see the actual benefit in increasing the number of Black, Hispanic, Asian, Native American, LGBTQ+, or any other demographic of attorneys in their ranks. They believe that the work is getting done, and “if it’s not broken, then why fix it.” But this belief itself reveals the profession in many ways to be broken.

When pressured by clients, other regulatory bodies, or public perceptions, we have witnessed Big Law increase the number of diverse hires in a first-year associate class and roll out affinity groups; but this is only after multiple presentations on the “business case,” highlighting the potential damage to client relations. This tendency to exert minimum diversity effort and hope for miraculous outcomes is a weighted disappointment that Big Law minority lawyers put on each day and carry in silence. Often, once they have paid off their student loans, these marginalized attorneys will set off in search of a company or firm that will appreciate their excellence and offer them a path to self-actualized success that includes their unique voice and perspectives. This really should not come as a surprise. A simple refresher of Abraham Maslow’s “hierarchy of needs” reminds us that human beings have a basic human need to feel a sense of belonging.8 An individual remaining in an environment where they experience a constant awareness of being “othered” has real and devastating effects on physical and emotional health and cannot be tolerated indefinitely without mental and physical health consequences. In a profession fighting against high rates of alcoholism and suicide, this is not a level of pressure that many are willing to accept indefinitely. Attorneys who do not feel included or see a clear path to success will only stay long enough to chart a course elsewhere. In this way, many minority attorneys are leaving faster than firms can hire their replacements. But, as it has done in years past, the winds of change are blowing.

In the second half of 2019, on the heels of the AmLaw report, five major law firms invested $5 million into the Move the Needle Fund to combat the persistent problem of a lack of diversity and inclusion in the legal profession.9 Earlier that year, 170 general counsel released an open letter to law firms demanding greater diversity under threat of business loss.10 And then, we turned the corner into 2020.

 

Action
No one could have predicted the catalyst that 2020 would become for change. Racial unrest once again reached critical mass as we all sat captive to pandemic restrictions, watching COVID-19 numbers wreak havoc in minority communities, and unarmed Black men and women die at the hands of those sworn to protect and serve. This inescapable crescendo of race-related inequities made the entire country once again reconsider whether we have made the amount of advancement in “race relations” as we like to believe we have, or whether we are losing hard-won ground in the quest for equality. As was the case during the civil rights era, no industry or system escapes assessment once the inventory begins. The justice system was immediately at the center of the analysis, including opining on bias in sentencing, access to counsel, and the bench. Inevitably, the bar itself came under scrutiny as the mechanism central to the pipeline from law schools to the bench. The State Bar of Texas found itself embroiled in its microcosm of this national unrest, answering questions about tolerance, leadership, and the next steps to heal old wounds and increase inclusivity among its members and employees. The unexpected boon for inclusion in 2020 is that the profession was not interested in waiting for op-eds and criticisms to roll down. By the end of May, having watched with the rest of the country, the public, nearly nine-minute execution of George Floyd, law firms across the country were issuing statements disavowing racism and exclusionary practices; investing funds (amidst tightened budgets) in implicit bias studies and training for their staff; hiring diversity counsel, and looking for ways to become a part of the solution. The response was swift and nearly ubiquitous. The New York City Bar Association’s Office of Diversity and Inclusion began rolling out tools and CLEs on everything from implicit bias to mindfulness to help the bar at large learn to “lean into our discomfort [and be] more accountable to the necessary work of inclusion.”11 State and local bar associations across the country followed suit.

In my nearly 14 years of law practice, I have never seen anything like it. Despite whatever hesitation or ties to tradition have held the profession inert, no firm or organization was willing to be found complicit in the dehumanizing of an entire demographic of this country by remaining silent in the face of what became the proverbial straw on the back of a country that had witnessed months of uninterrupted anti-Black aggression and violence. Some will say that we have seen this before. They will say that this year is much like the year that included the televised beating of Rodney King. They expect that people will lose interest and return to business as usual, abandoning antiracist and inclusion efforts under the brighter sky of better times. However, those of us who have been working in diversity and inclusion understand that this year does not feel like years past. This awakening is not poised to be short-lived as other moments in recent memory. The level of financial investment, the influx of allies, the acknowledgment that this work is a full-time-marathon endeavor and not a quick fix are all unique points of a delta of change that have shaken the bar and Big Law from its superficial comfort. Bold and unambiguous statements to pursue inclusive and antiracist practices were released by Big Law and big business alike.

One notable example was the statement Locke Lord issued as it joined the Law Firm Antiracism Alliance and rolled out a five-point action plan.

“As attorneys, we commit ourselves to fairness, justice and due process for every person, and on this we say: Black Lives Matter. We must recognize that the law has played an undeniable role in perpetrating injustices against Black Americans. Our work forward requires a renewed focus on undoing historic harms perpetuated in the name of the law. Now more than ever, there is no higher calling for us as lawyers than to uphold the U.S. Constitution and to ensure that its inherent rights are applied equally to all people, and especially to those among us who have not historically received equal protection under the law. Within our firm, we advance this calling by counting diversity and inclusion among our five core values. But words of condemnation and a statement of support are not enough. Although we have made great strides, we know we can and must do better in improving the representation of diverse professionals at our firm and in our leadership, and in maintaining a diverse and inclusive workplace that is free from racial discrimination and injustice.”

When asked about this bold statement, Jonathan Pelayo, a partner in Locke Lord’s Houston office, explained:

“In my experience as a Hispanic lawyer at Locke Lord, the firm has always been committed to diversity and inclusion. But like most other law firms, I don’t believe we were deliberate enough in our efforts. Over the latter half of 2020, the firm has made significant strides, which I look forward to being a part of for many years to come. At Locke Lord our commitment is to make our firm more representative of the communities we serve—as always, actions will speak louder than words.”12

Norton Rose Fulbright US also responded in July 2020 by forming the Racial Equity Council, or REC, co-chaired by Houston partner Jamila S. Mensah and Dallas partner Ryan E. Manns. Mensah described the work of the council:

“The REC is a part of our unwavering commitment to this effort and has been empowered by senior management to enact meaningful change at the firm. The overall mission of REC is to improve the experience of our Black personnel and to support racial equity throughout the firm. To date, the REC has implemented a number of key initiatives, including a comprehensive sponsorship program for Black non-partner lawyers where they are paired with sponsoring lawyers and partner advocates who work to ensure steady workflow and skill development and also connect them with firm leaders to best position them to achieve career goals. While we fully appreciate that we can’t solve all problems, we recognize the unique opportunity we have in this particular moment in time, and with the full support of firm management, we are primed to affect real and lasting change for our Black personnel and for our firm as a whole.”13

The REC also addresses equity in opportunity and advancement for non-attorneys. The bar has indeed been spurred into action. But what happens next?

 

Momentum
It is now left to us all to do the hard work of maintaining momentum and working through the inevitable obstacles that will arise. Having spent many years working to increase inclusion and create pipelines, I am fully aware that there will be moments where attempted solutions create more problems than they resolve. There will be moments when well-meaning leaders miss the mark. Understanding that this movement toward inclusivity will require a constant and deep commitment to both cultural competence and cultural humility is the first step. Bringing all of the necessary voices to the table so that a new, more inclusive, cohort of decision-makers is in the room is another critical step that we cannot skip. Despite a rocky start in office, Larry McDougal, president of the State Bar of Texas, has begun a series of virtual, safe-space conversations on race. While dialogue is an important first step, sustained efforts that include a combination of mandatory education, equitable policy, and consistent accountability are critical components necessary to sustain momentum. The State Bar Board of Directors—through various committees and a dedicated task force and work group—is studying many of these issues for possible action. In a year that has been marked by polarized politics and divisive rhetoric, there is still an unmistakable surge of sentiment that the legal field and the Texas Bar are ready for better. With history standing as a reminder of the sacrifices made by generations of lawyers before us, the only viable path available is forward.TBJ

 



Jai CollierJAI COLLIER
is a diversity, equity, and inclusion practitioner. She also owns and operates an independent publishing agency that focuses on developing diverse perspectives in literature and cultivating empathy and emotional intelligence in youth and young adults. Collier is a wife and mother of three and a proud University of Texas School of Law graduate. Hook ’em Horns!

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