Five years ago this month this headline was blasted from The Washington Post: “Law is the least diverse profession in the nation. And lawyers aren’t doing enough to change that.” That article also went on to say that “the legal profession supplies presidents, governors, lawmakers, judges, prosecutors, general counsels and heads of corporations. Its membership needs to be as inclusive as the populations it serves.” But five years later, research still shows us what many of us already know—despite an increase in women and diverse law students, law firm statistics still do not proportionately reflect that. New figures from the National Association for Law Placement show that in 2019, just one in five equity partners were women (or 20.3%) and only 7.6% were racial/ethnic minorities. Because of this, recent efforts such as the Move the Needle Fund were started. For those of you not familiar, Move the Needle is the first collaborative effort to test innovative initiatives to create a more diverse and inclusive legal profession. What makes this new initiative promising is that the five AmLaw100 founding law firms have all agreed to publicly share their firms’ successes—and failures. This is important as we often see many firms talking the talk but not really walking the walk. But what happens to all these initiatives and efforts now that we are in the midst of a global pandemic? With so many other pressing issues facing our law firms ranging from furloughed or laid off staff and salary reductions to financial decline resulting from clients being unable to afford legal expenditures, now is the time more than ever to stay full speed ahead and remain focused on our firms’ inclusive, diversity and equity issues.
Recognizing that unfortunately many firms still only respond to bottom line impact, I decided to go to the source to hear from corporate clients on what they continue to expect from outside counsel during this pandemic and beyond. Steve McManus, State Farm Insurance Co.’s senior vice president and general counsel, tells me “During times of crisis, we focus on responding to the immediate needs of our employees and customers, but we cannot lose sight of all of our long term objectives, including the State Farm law department leadership responsibility to influence law firm diversity through regular dialogue with existing retained counsel, and to demonstrate our commitment with a broad approach to the selection of counsel on new matters. Included within our approach is connecting with and exploring ways to engage diverse owned law firms, such as through our interactions with NAMWOLF firms and our Rising Star Academy, designed to help to prepare diverse up-and-coming law firm leaders for increased responsibilities.” I heard the same messaging from Jason L. Brown, vice president, general counsel, GE Appliances, who told me: “We are in unchartered waters and these are the times that, as business leaders, you need a myriad of perspectives to help you tackle the emerging issues the company will face. Those companies that continue to drive impactful inclusion and diversity efforts throughout their organizations will perform better coming out of this crisis. The legal department should play a vital role in leading by example in developing diverse talent, retaining diverse outside counsel and firms and fostering an inclusive environment. When times are challenging, as they are now, companies must maintain focus on the core values and initiatives that will help spark a quick recovery and sustainable growth for the business. Make no mistake about it, inclusion, diversity and equity should be a part of those core values and initiatives.”
Globally, in light of COVID-19, we hear that across the board (and not exclusive to the legal industry) we are most likely going to see an uptick in racial discrimination claims made by Asians and in family responsibility discrimination claims. The impact that COVID-19 will have on D&I efforts brings back the not-so-distant memory of what happened after our country’s last recession. Joel Stern, CEO of the National Association of Minority & Women Owned Law Firms (NAMWOLF), recalls: “We have seen what happens during crises when we do not continue prioritizing diversity and inclusion. Our profession made progress prior to 2008—not great but good with respect to several diversity and inclusion metrics. After the Great Recession, we took many steps backwards with respect to both gender and racial/ethnicity metrics. Some of these numbers (e.g., African American Associates at BigLaw) did not return to pre-Recession levels until last year. If we don’t continue to prioritize diversity and inclusion, we will repeat the same mistakes we made in 2009 and that can’t happen.”
It is important to note that firms do not get to pick and choose when to focus on their D&I efforts by attempting to put these much needed initiatives on the back burner for what they perceive as more pressing matters during this pandemic. It is times like these that leaders begin to emerge from the ranks, rising to the challenges in front us, even during the most difficult of times. “Things are tough right now, no doubt about it. But it’s in tough times like these that we should get going on our inclusion, diversity and equity initiatives. By doing so, we can make real advancements that benefit our companies as well as the women and minority-owned law firms we retain. Most corporate leaders would agree that it’s usually in times of change, discomfort and upheaval that advances are achieved. Mergers result in the promotion of new leaders. Tighter resources result in innovations and efficiencies. Being forced to work from home because of a pandemic results in higher performance and productivity,” says Anthony E. Gay, vice president and general counsel, PECO Energy. Stern echoes Gay’s sentiment by adding that “Diversity and Inclusion is not something to focus on only during good times. It must be emphasized during good and bad times, and I would argue even more so during challenging times because the impact on minorities and women during times like this is worse than on the white male. It is only when diversity and inclusion is baked into our DNA and part of our respective company and law firm cultures that it will work. These times will test whether our focus on diversity and inclusion is truly a strategic imperative of something much less. I hope the former.”
Many affinity associations are rightfully concerned about another fallout on diverse attorney initiatives now that firms focus on what they consider more pressing matters even with though the impact of the 2008 recession can still be felt. Stern follows this up by saying, “We saw how long it took for the numbers to return to pre-Great Recession times and between 2008 and 2019, we lost ground on our fight to have equality in our profession. Many minorities and women left the practice of law post Great Recession and that loss is irreplaceable. We talk a great game of how important this is to our profession; if we are not intentional with respect to ensuring we don’t lose ground, the ramifications to our profession are long lasting and it could be years before we are able to get where we are today. And, let’s be candid, our numbers prior to COVID-19 are not something to brag about but there was incremental progress. We, as attorneys, have both a professional and moral obligation to ensure we don’t go backwards.”
Like everyone else, due to COVID-19, the legal industry was forced into running operations remotely. With many firms having been resistant to a remote workforce in the past, it’s not unexpected that managing and engaging employees from afar has presented challenges. Kristine Maciolek Small, director–Diversity, Inclusion & Talent Management for PPL Corp. hits that point home. “With all our workforce practicing social distancing whether in the workplace or by working remotely for the first time, we must re-focus our efforts on creating a culture of inclusion and belonging. While we are physically separate, we need to stay together now more than ever. The front-line managers are key to building that culture of togetherness, but it must be intentionally part of the daily contact even when that contact is by phone call or zoom meeting.”
Looking beyond, many law firms will soon begin the uphill climb of reopening physical office spaces and assessing the ability to recall furloughed or laid off employees. Maciolek Small says that we must address the entire employee lifecycle with an eye toward inclusion. Maciolek Small went on to state that “It is important that equity be at the forefront of recovery. We have an opportunity to reshape our workplaces to accommodate for the various work-life demands employees are now facing, such as educating our children, caring for an elderly or sick family member, living alone, battling other illnesses in isolation and making sure that mental health and well-being are openly discussed. COVID-19 has taught us a lot about flexibility and that while we are all going through this together, each employee has a unique set of circumstances and needs. It will be important that we approach things with equity in mind going forward.”
Gay ended his comments by saying that “Times of change require innovative thinking and agile practices. Research has shown and my experience confirms that organizations that leverage diversity, inclusion and equity, deliver innovative ideas that achieve excellent outcomes.” As I recently wrote, if anything, COVID-19 has shown us that the legal industry can change, and can adapt to that change swiftly and effectively. We must remain steadfast and diligent in our support of the advancement of women and minorities in the profession. Inclusive and equitable practices in our firms must remain priorities as our employees need it but our clients are demanding it louder and clearer than ever before. So ensuring that the seats around the table are always reflective of those who make up our firms, our communities and our clients must always remain a top priority even when in a pandemic.
Reprinted with permission from the May 14, 2020 issue of The Legal Intelligencer. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.