Jacqueline Simonovich in Law360: Transforming Law Firms’ Diversity Intent Into Real Progress

In the summer of 2020, we saw a flurry of diversity and inclusion activity at law firms in response to the murder of George Floyd and the general social unrest in this country at that time. Many firms ostensibly renewed their diversity and inclusion initiatives.

While these renewed commitments were well-intentioned, it was hard not to wonder — would all this talk actually translate into action? Or would these actions surpass the performative and translate into real, measurable progress?

After all, law firm diversity initiatives are not new. The underrepresentation of people of color, especially in the partnership ranks, was not simply a 2020 phenomenon. Instead, such underrepresentation reflects policies and practices that are so embedded in our culture they often go unnoticed, except of course by the people directly affected.

Perhaps we’ve all seen the numbers by now. But even if you haven’t, it will likely come as no surprise that they’re not good.

In its 2020 report on diversity in U.S. law firms, the National Association for Law Placement reported that while “Black partners overall finally surpassed 2% for the first time since NALP began collecting this data … less than four percent of all partners are women of color… a pattern that holds true across all firm sizes and most jurisdictions.”

Even worse, NALP reported that Black and Latinx women each represented less than 1% of all partners in U.S. firms.

Similarly, in July 2020, the State Bar of California published its first annual report card on the diversity of California’s legal profession. The report card highlights the fact that despite significant growth in the proportion of attorneys who are women and people of color over the past 30 years, California’s attorney population remains far from reflective of the state’s diversity.

Further, analysis of workplace satisfaction indicates that women, people of color, the LGBTQIA+ community and people with disabilities consistently report lower levels of satisfaction with workplace experiences, such as salary and opportunities for advancement, than their white male counterparts.

In January 2022, NALP published its 2021 report on diversity in U.S. law firms. While women and people of color made slight progress in levels of representation, the growth of Black partners increased by only 0.5%. However, the number of summer associates of color grew by nearly 5%, indicating that law firms are attempting to increase diversity through recruitment efforts.

The challenge for law firms going forward will be to retain and promote this pool of diverse talent. This will be no small feat considering that a 2006 American Bar Association survey called “Visible Invisibility: Women of Color in Law Firms” found that women and men of color leave firms at higher rates than their white counterparts.

So how can we ensure that diversity, equity and inclusion, or DEI, efforts, inspired by concentrated events, continue robustly into the future?

A first and necessary step, is for law firms and indeed all legal employers to honestly assess how we got here. It is no accident that people of color face higher barriers to entry and promotion within the legal profession, as this simply reflects the structural racism that has existed in this country even before its founding.

In other words, we have all inherited a society with deeply embedded policies and norms that uphold one racial group as superior to all others. The challenge with structural racism is that it often works silently, and therefore by upholding the status quo, we are in fact perpetuating a system that disenfranchises people of color.

The flip side of the coin is that it can be all too easy to throw up our hands in the face of this seemingly insurmountable issue.

Perhaps we’ve all heard the pipeline argument by now. This is the argument that law firms cannot increase diversity because there are just not enough qualified candidates of color.

While it’s true that those larger societal barriers make it more difficult for people of color to gain admission to law school, especially the top echelon of law schools, the pipeline argument is a way of shifting blame and essentially saying “this is not my problem.” And we can see how law schools could make this same argument that there are not enough qualified candidates of color for admission.

Of course, if everyone is able to shift blame, then no one is held accountable. This simple argument, which may not seem overtly racist, is just one of ways that even those who are well intentioned can uphold a problematic status quo.

While DEI initiatives are important, diversity efforts have to move past the status of extracurricular within law firms. If you aren’t a person of color, you could easily question why you should devote time to diversity initiatives that do not affect you. Indeed, this is a natural reaction in a society that values the individual over the collective.

This is why diversity must be viewed as a value — an inextricable part of an organization — rather than an effort that can be abandoned at will. Of course, change can only happen through effort, but in order for actions to be meaningful there must first be a shift in mindset. Diversity needs to be seen as a nonnegotiable — not as a selling point, not as a recruitment tool, but as an essential to legal employers.

So how do we get there?

The short answer is slowly. The diverse and inclusive law firm is unfortunately an unrealized space in our society. At least a dialogue has begun, but how do we keep it going? How do we ensure that diversity is not relegated to the status of buzzword, important for a short time but ultimately forgotten?

Accountability is key. Right now, we do have mechanisms to evaluate the status of representation, such as the NALP report on diversity in U.S. law firms, but these metrics can easily be disregarded.

First and foremost, law firms must engage in an interactive, organization-wide process to either draft or revise DEI policies. In order for this process to be meaningful, law firms must create an atmosphere in which people of color feel comfortable sharing their ideas. This process could include smaller focus groups where people at all levels are encouraged to attend.

If only upper management is involved in crafting DEI policies, then these efforts are doomed to be performative rather than effectual because the people with the most at stake have been excluded.

Law firms should also pledge to make their DEI policies public in order to encourage accountability and transparency. But in order to effectively enforce DEI policies, law firms
must collect data not only regarding diverse hires, but tracking promotions and pay among diverse attorneys compared to their white counterparts.

If law firms pledge to make such data public, they will be the most incentivized to improve. In fact, the State Bar of California plans to launch a DEI leadership seal program to encourage legal employers to publicly commit to measurable DEI goals.

Some additional steps law firms can take include rewarding associates for DEI efforts by providing a billable hours credit, similar to the hours credits provided for pro bono work. Partners must also be held accountable through 360 reviews that reward them for DEI efforts, including mentoring and sponsoring diverse associates.

Finally, law firms should support diverse associates by providing personal business coaching to ensure that these attorneys learn the skills needed to build a book of business and matriculate into the partnership ranks. Only by providing additional mentorship and support, which historically have been provided more readily by white partners to white associates, can law firms improve attrition rates of diverse associates.

This article was written by Weintraub attorney Jacqueline Simonovich and Lindsey Mignano from Smith Shapourian Mignano PC.