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Diversity in U.S. Law Firms: ‘It’s Always Going to Be Incremental’

By Susan Kostal, Attorney At Work

NALP’s report on law firm diversity in the U.S. shows little improvement, as pandemic pressures stoke concern that even incremental progress is at risk.

Spoiler alert: Reading the findings in NALP’s 2020 Report on Diversity in U.S. Law Firms was hardly cause for celebration.

The annual report, released by the National Association of Law Placement in early February, shows “incremental progress” for women and attorneys of color in major U.S. law firms. Drawn from analysis of the NALP Directory of Legal Employers (NDLE), which focuses on Big Law but includes more than 1,000 public and private legal employers, you need to squint at some tables and charts to see any upward tilt in the trendlines.

Alexis Robertson, Director of Diversity & Inclusion at Foley, summarized the findings for Black lawyers in a LinkedIn post:

“In 2020, the percentage of Black associates surpassed 5% for the first time.

Black women associates (3.04%) finally exceeded the 2009 figure of 2.93%. Despite these increases, Black women’s representation at the associate level has increased by just one-tenth of a percentage point over 11 years.

The percentage of Black partners overall finally surpassed 2% for the first time since NALP began collecting data. The percentage of equity partners of color rose from 4.4% in 2019 to 4.5% in 2020.

Based on the above, it’s clear that Black equity partners represent less than 1% of law firm equity partners (likely far less than 1%).

To put it another way, the U.S. has had a higher percentage of Black U.S. Presidents than large law firms have of Black equity partners.”

“Every year when these numbers come out, it’s disheartening,” Robertson said in an interview.

“But I am also very familiar with the pace of change. We should not expect to see orders of magnitude year over year. Diversifying the partnership with homegrown talent takes a decade. It’s always going to be incremental,” she said.

Robertson said firms have been focusing on pro bono work and financial support of racial justice organizations and improving training around implicit bias. “But if we really want to see change speed up, we need to look at the overall picture, at the holistic talent management systems in organizations. And it remains to be seen if all law firms will make a big investment there.”

The Stats on Diversity in U.S. Firms Tell a Familiar Tale

People of color enter law firms but leave, for a variety of reasons, before hitting partnership. “It can be very hard to get traction, to get good work, with good clients that matter, to find a sponsor,” Robertson said. Ultimately, firms are focused on the business as a whole, but not so much on getting the ideal training for associates based on their interests and goals and focusing on individual success.

“I would love to say that this gives midsized firms and small firms an advantage,” Robertson said. “But they fall into the same trap of relying on internal referrals for hiring, and so they hire more of the same.”

One Small Firm Solution

Not always. Meyers Nave, a 62-attorney California firm, was one of the first among very few U.S. law firms with a minority woman as managing principal. Jayne Williams, former Oakland City Attorney, served as the firm’s managing principal for two terms, from 2004 to 2010. Today, women and minority attorneys make up 77% of Meyers Nave attorneys.

But it wasn’t always this way. Despite Williams’ leadership, the firm still had some “difficult conversations” seven or eight years ago when it committed formally to a more diverse firm and partnership, said principal Eric Casher. Casher chairs the firm’s Diversity Committee and is chair of its Municipal and Special District Law Practice Group and a board member of the California Minority Counsel Program.

Like many small and midsize firms, the firm does not have a summer program or participate in on-campus interviewing. So, the firm launched a Diversity Fellowship Program in 2017.

The Diversity Fellowship offers 1Ls a paid, full-time 10-week fellowship, with possible extension to a second year, and $10,000 in tuition assistance following each completed summer program.

The second fellow in the program, Shandyn Pierce, joined the firm in 2020 as an associate after two years as a fellow, often working under Casher. Pierce said he went to law school to be a “servant leader” in his community and realized he could do that within the context of a law firm.

Casher himself was not in the top 25% of his class, nor did he go to a top 50 law school. After two years, he moved to Meyers Nave. “I got a big firm job, but it wasn’t because of my grades,” he said. “I want someone who is scrappy and hungry. They come off the struggle bus and are willing to work hard.”

When recruiting laterals, the firm has its own version of the Rooney Rule, in which practice group leaders must advertise openings at affinity bar associations (the Hispanic National Bar Association, for instance) to build the right kind of candidate pool before looking elsewhere.

The firm also has a partnership track for reduced-time employees (those working an 80% schedule) and has elevated several reduced-time attorneys to principal.

Debating the Pipeline Problem: A Common Refrain

Many law schools, from No. 1 ranked Yale, to Berkeley Law at No. 9, to UC Hastings, at No. 59, are enrolling “majority minority” classes, according to data reported per ABA requirements. This year at Yale, there are 16 1Ls who identify as Black or African American among the 107 minority students. There are 99 white 1Ls in a class of 209.

Many local bar associations have outreach programs in which they send panels of diverse attorneys to speak at local colleges (here’s just one). And law schools are stepping up. UC Hastings, for example, has two programs targeting Black applicants. Its California Scholars program provides a full three-year scholarship to graduates of HBCUs (historically black colleges and universities). The college also has an accelerated joint degree program with Spelman College, the top women’s HBCU. Qualified graduates can complete their undergrad and law degrees in six years, with scholarship funding.

“We’d like to pretend we have a pipeline problem, but we don’t,” Robertson says. But when firms limit their on-campus interviews and hiring targets to the top graduates of the top 10 or 20 schools, and perhaps a local law school, they miss a huge swath of talent. “We know that we cannot only look to the top schools as a proxy for excellence,” she said. The result: hundreds of firms fighting over the same small crop of top achievers, at least by traditional definitions.

“There’s a lot to be said for someone who goes to law school while working part-time. A person with a B average, or something other than the prototypical path, will do well in a law firm environment in terms of grit and resilience. But right now, large law firms are not particularly good at assessing that,” Robertson said.

So, Where Are Black Law Grads Going?

To help gauge that, I spoke with Carmia Caesar, Assistant Dean of Career Services at Howard University School of Law. Of the 112 graduates of the class of 2019 employed at the 10-month post-graduation mark, 35 were in law firms, 26 were in government positions, 13 were in public interest jobs, 11 had clerkships, and one was in a graduate program.

“Our numbers have been steady for the last 10 to 20 years,” Caesar said. “Howard has always been a top producer for graduates going into large, top-ranked law firms.”

But when they don’t find good work, good mentoring, and the possibility of advancement, they move to more receptive spaces, she said.

Will #BLM Help? What About Coca-Cola?

Since George Floyd was killed in May 2020 after a white police officer kneeled on his neck, putting new focus on the Black Lives Matter movement, firms are acknowledging “they have work to do, and that work includes bringing in lateral attorneys,” said Merle Vaughn, a partner with Major, Lindsey & Africa and the recruiting firm’s National Law Firm Diversity Practice Leader. But even then, after introducing a new hire to their new partners, most firms simply leave them to sink or swim. “There are firms that are doing a much better job with the integration process, and it starts in the interview,” Vaughn said, with a discussion of a strategy to create a win-win for the lateral and the firm.

Turnover for diverse lawyers tends to be higher at the associate level.

“Once you make partner, you are less likely to leave,” Vaughn said. In fact, “diverse lawyers and even women tend to be more loyal to their firms.”

Some firms are starting to strategically recruit lateral partners to serve certain clients. “When clients say they want more diverse lawyers on their matters, some firms are recruiting intentionally for these opportunities,” Vaughn said. That kind of tailor-made recruiting can often immediately make a difference for a firm.

Enter stage left the Coca-Cola Co. In January, Coca-Cola’s general counsel, Bradley Gayton, announced he was tired of “good intentions” and that law firms working on new matters will have to meet stringent new diversity guidelines or face stiff penalties — including a 30% haircut on fees, or losing the beverage giant’s business.

Gayton wrote:

“We have developed scorecards, held summits, established committees and written action plans. These efforts are not working. I’m reminded of this by the alarming number of new partner headshots that continue to be proudly published with an obvious lack of diversity, and then I read that Black equity partners will not reach parity with the Black U.S. population until 2391.”

Firms need to make systemic changes for diverse attorneys to stay. “Firms are happy to celebrate Juneteenth or serve cookies on Martin Luther King Jr. Day, but they do not want to reevaluate their policies on origination credit,” said Sonya Olds Som, a partner with Heidrick & Struggles who focuses on in-house legal recruiting. Firms may brag about the number of Black first-year associates, but who is still around in seven years, and wants to commit to that firm, is ultimately more important.

“Women and minorities have increased opportunities in-house,” Som said. “It’s not just about how much business you bring in. EQ (emotional intelligence) skills matter, leadership skills, collaboration and culture matter, and the ability to connect with those who aren’t lawyers, internally and externally.”

What’s the Future Hold for Law Firm Diversity?

A just-released survey from the American Bar Association predicts that many lawyers, but especially women with children and lawyers of color, feel overwhelmed by pandemic-exacerbated pressures — with many considering leaving the profession. If those fears are borne out, we will be mourning the loss of even the lackluster but steady “incremental progress.”

But if they stay, these attorneys have a shot at taking over the client relationships as baby boomer partners retire. Focusing on intentional transitions and “legacy recruiting” can pacify clients and change firms.

Som is optimistic. “I hope this pandemic helps firms find a way to challenge a long list of long-held assumptions,” she said. Now that attorneys have proved they can successfully work remotely, more will be voting with their feet and switching firms if faced with rigid requirements for face time, she predicts.

Meyers Nave took its own public position on the pipeline problem. The firm publicly supported California’s Prop 16 on the November 2020 ballot. The measure, which ultimately failed, would have been the first step in curtailing the state’s infamous Prop 209, which did away with race and gender affirmative action admissions at public universities. When Prop 209 passed, minority enrollment at the University of California campuses plummeted.

“We were the only law firm that took that position,” said Casher. “We supported the ballot measure financially as well. It was a bold statement, and I hope it gives other law firms cover” to take similar actions in the future.

Next year’s stats and story will tell. Stay tuned.

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