Racial reckoning raises stakes for law firms
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America’s top law firms have for years struggled to increase their numbers of African American colleagues, especially in the upper ranks. Their lack of progress, say some lawyers, is a palpable threat to their success.
The prospect that lack of diversity is becoming a strategic risk was demonstrated to law firm Orrick in 2019, says Duane Hughes, the firm’s New York-based managing director for inclusion and client relationships. At a court hearing for a securities litigation, a judge noted in passing that the opposing counsel brought an all-white team to a courtroom composed largely of people of colour.
“The judge made a comment and it was really received by both sets of counsel,” Mr Hughes says. That moment helped crystallise for Orrick the urgency needed to tackle diversity, both for equity’s sake but also for its importance to business survival.
Like other organisations, law firms re-evaluated their diversity, equality, and inclusion efforts after the killings of Ahmaud Arbery, Breonna Taylor and George Floyd sparked a racial reckoning in the US and renewed calls for action from staff and clients.
The numbers of black people in law firms generally, let alone at a senior level, are certainly low. Fewer than 5 per cent of associates at leading firms in 2018 identified as black or African American, according to the National Association for Law Placement, while black people make up 12 per cent of the overall US workforce. Their representation in corporate law has been largely stagnant for a decade, but their numbers in 2018 were lower than in 2009. In both years, the proportion of black partners was even lower.
“Historically law firms have cared very little about race, and their structures replicate the kind of white privilege and racial stratification that exists in other systems in the US,” says Anthony Thompson, a professor of law at New York University and founder of the faculty’s Center on Race, Inequality and the Law.
“The way they assign cases . . . to associates, the lack of partners of colour, the explicit and implicit bias that [permeates] law firm culture, and the lack of public transparency and accountability all contribute to an industry that has essentially had a complete absence of black influence.”
Since Floyd’s death in particular, some firms are recognising that competency in addressing diversity and inclusion challenges is a necessity, says Bendita Cynthia Malakia, global head of diversity and inclusion at law firm Hogan Lovells. “What people realised is that diversity is not a ‘nice to have’, it’s business critical,” she says. Adding a fully funded diversity team can help a firm recruit and retain top talent, in addition to advising other executives on how to make their teams more equitable, she says.
Challenges to traditional reticence
Conversations on race have long been a challenge at large firms that traditionally have stayed out of social justice movements, even while individual lawyers have taken on issue-based cases. Reluctance to take a stand was among the first challenges Ms Malakia faced when she took up her post just weeks before Floyd’s killing in May reignited the profession’s reckoning about diversity.
“Law firms engaged the traditional corporate playbook in that they created task forces, they had programmes, they contributed to the NAACP [National Association for the Advancement of Colored People] legal defence fund and the Equal Justice Initiative and then kind of went back to business as usual,” Prof Thompson says.
But the public outcry over the deaths and wider racial injustice also galvanised some to re-evaluate older and more senior partners’ hesitancy about speaking out and younger partners’ demands to embrace inclusion work, says Ms Malakia.
“There was a remarkable turnround and the conversation was multi-faceted,” she says. “It’s brought on an issue we’ve seen with respect to generational diversity, about what we should comment on as legal organisations, because we represent all sorts of people. People like to view us as neutral and not having positions.”
Citing the 2010 Citizens United judgment in the Supreme Court, which said corporations have a right to “free speech”, Ms Malakia argues that law firms have a right to express opinions and that doing so is essential to staying competitive, both at career fairs and in the courtroom.
Prospective new recruits and potential clients are increasingly curious about diversity and inclusion efforts, say law firms. At Orrick, clients have been asking about the racial make-up of the teams of lawyers assigned to them, often requesting they include people of colour. Clients want a diverse team, says Siobhan Handley, chief talent officer. As well as the “moral imperative”, she adds, “they’re saying ‘we’re not going to miss perspectives that could be really thoughtful and helpful’.”
Hogan Lovells pledged in October to have 15 per cent of its partners from minority ethnic backgrounds by 2025, in addition to 4 per cent LGBT+. The firm also set up a diversity consulting service for clients.
Orrick set up initiatives that allow its lawyers to take year-long fellowships at civil rights, criminal justice or economic equity organisations, and has collaborated with four other firms on a project to share research. Their work won accolades, but the attention Mr Hughes most wants to attract is that of law students. “If you’re not competitive in that space you’re at a disadvantage at getting the best talent,” he says. “A lot of those law students have a hard time differentiating one law firm versus another.”
What is most attractive to Prof Thompson’s students is seeing other people of colour as partners, he says, because it reassures them there is potential to advance their careers at the firm. He would like to see firms reworking case assignment and promotion procedures for greater transparency, which he believes would be more valuable to black associates than public statements or task forces.
Even with renewed motivation, all agree the legal profession is still in the foothills of what needs to be done to achieve racial equity. “We know we’re up against a challenge,” Mr Hughes says. “As much as we sort of feel good about ourselves, we’re not satisfied.”
Case studies: ‘people, talent and skills’ in law firms
Researched and compiled by RSG Consulting. ‘Winner’ in “Rethinking the workplace” indicates the organisation has won an FT Innovative Lawyers 2020 award; other firms are listed alphabetically
Diversity and inclusion
Making the workforce in law firms more inclusive is rising up management’s agenda. These examples reflect some of the resulting best practice emerging.
The firm has committed itself to having 15 per cent ethnic minority partners and 4 per cent LGBT+ partners by 2025. Hogan Lovells has also launched a diversity and inclusion consulting service for clients, and offers associates up to 50 billable hours per year to spend on diversity, equity and inclusion initiatives.
Commended: Bendita Cynthia Malakia (pictured above)
After realising that men were receiving more client referrals than women, the firm designed a website to host lists of experienced female lawyers across a various practice groups and other Canadian law firms to encourage clients to use female lawyers.
The site has had more than 30,000 views, leading to a rise in referrals to female partners.
Morgan, Lewis & Bockius
Shortly after the killing of George Floyd in May by Minnesota police officers, the firm established a Mobilising for Equality Task Force led by firm chair Jami McKeon and Grace Speights, leader of the global labour and employment practice. It incorporates 14 working groups focused on racial equality in areas such as economic development, access to education, community engagement and voting rights.
The firm also sponsored two associates to serve six-month secondments at public-interest organisations focusing on racial justice.
The firm launched a fellowship programme that seconds its lawyers for a year full-time to a non-profit or non-governmental organisation focused on civil rights, criminal justice reform, social justice or economic equity. Orrick is also a co-founder of the Move the Needle Fund, a collaboration between five law firms, more than 25 general counsel and San Francisco-based legal services incubator Diversity Lab. The fund is working to experiment with research-based methods to improve diversity in their organisations and will share its findings with the legal industry.
Paul, Weiss, Rifkind, Wharton & Garrison
The firm is using artificial intelligence to track unconscious bias in performance reviews, by analysing word choices used to describe different under-represented groups.
Partners use a dashboard to track how many under-represented associates they staff for each matter they are working on, helping the firm ensure work is distributed equally. Partners also have to report annually on their diversity and inclusion contributions. Commended: Danyale Price
Weil, Gotshal & Manges
The firm introduced a policy that provides fertility, surrogacy and adoption benefits to all employees, particularly to support LGBT+ staff. Employees are now entitled to financial support from the firm for egg-freezing, adoption and surrogacy — services that can cost up to $100,000 in the US.
Researched and compiled by RSG Consulting. Organisations are listed alphabetically
Rethinking the workplace
The pandemic has forced all law firms to adapt their people and talent policies to a remote-working environment. These firms stood out for finding innovative channels to train, support and communicate with employees and clients.
WINNER: Ballard Spahr
The firm has developed its Ballard360 client portals — sites used to collaborate and share information with clients — to centralise information for the firm’s employees and automate how legal documents are reviewed and drafted. In response to the pandemic, the firm has launched two new portals for distressed real estate and retail bankruptcy that reduce the time lawyers spend on drafting by up to 40 per cent. Commended: Melissa Prince
The firm’s operating model relies on the use of technology to enable a distributed workforce without physical offices, which has allowed the business to operate smoothly during the pandemic. It has a formula-driven salary model that rewards bringing in new clients and collaborating internally (partners who share work with other lawyers receive 32 per cent origination credit).
As homeworking has become generally accepted, the firm has seen an increase in its recruitment, with 45 new partners hired in 2020.
Latham & Watkins
The firm launched a virtual training academy for summer associates and lawyers. It included a training week for more than 200 summer associates from around the world, and training for employees on topics such as virtual depositions, online presentations and effective remote supervision. Since March, Latham & Watkins lawyers have dedicated more than 8,000 hours to training programmes and academies, and have taken part in about 1,100 hours of mentoring sessions.
The firm introduced a series of initiatives to support parents working from home during the pandemic. This included one-on-one coaching, a mentoring scheme that paired new parents with a parent mentor at the firm, and an app that assembled the firm’s parenting policies and benefits. For the children of its homeworking employees, the firm also organised live online classes and camps through the out-of-school learning company Outschool (pictured)
The firm adapted its summer associate programme to a virtual format, using it as a laboratory for onboarding and building virtual teams.
Orrick made all participants permanent offers at the firm up front, to help them feel at ease, and kept the group connected through a dashboard featuring scheduling information and a career development tracker.
Commended: Siobhan Handley
As part of its virtual summer associate scheme, the firm launched its Legaltech University to train participants on technologies such as artificial intelligence and analytics.
The programme included videos from clients about innovation, virtual design workshops and experience designing a prototype solution to automate workflows through no-code platform Bryter. The 95 summer associates took part in online assessments and were given detailed feedback to help with their training and development.
Ropes & Gray
The firm implemented a holistic employee wellness programme to support staff and clients during the pandemic. The firm hosted virtual performances for employees, clients, and their children, including magic shows and live interviews. These received more than 900 registrations to participate.
It also made its five-week summer associate programme virtual and adapted its benefit programmes to help with dependent care and remote learning while employees were working from home.
Researched and compiled by RSG Consulting. ‘Winner’ indicates the firm won an FT Innovative Lawyers 2020 award; other organisations are listed alphabetically
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