Running Legal Like A Business - Ch. 19 - State of Diversity in the Legal Industry

In Running Legal Like A Business (PLI Press, 2021) by Connie Brenton and Susan R.Lambreth, penning the chapter on Diversity & Inclusion, are Southern Law Center Chancellor John Pierre and Robert Furnier, Professor at both the Southern Law Center and Northern Kentucky University. Both are eminently more qualified to opine on the state of diversity in law than I am.  Their footnotes contain a number of useful links. For convenience, I include a handful in my full blog post here.

In the chapter opening the authors share the history of the Southern Law Center, which was founded after Charles Hatfield sued Louisiana State University Law School and the state for discrimination.  Under the approach sanctioned by Plessy v. Ferguson in 1896 the Louisiana State Legislature responded by creating the Southern Law Center in 1947, which I am sure did not see its fair share of funding from the legislature for many many decades, if indeed it does today.  The authors note that 125 years since Plessy and 65+ years after Brown vs. Board of Education, “The legal profession is not as diverse or inclusive as the society it represents.” 

Focusing in their attention on diversity statistics in the legal profession, the authors reference several studies: 

According to the latest ABA profile, only 14% of all US lawyers are not white and 37% are women.  Representations of these groups in the general US population are 40% and 51% respectively.  

A 2019 National Association for Law Placement Survey suggest only 3% of attorneys openly identify as LGBTQ and 0.5% as possessing a disability.  They cite a 2021 Gallup poll that states 5.6% of US adults identify as LGBTQ and 26% have some type of disability, And frankly, I believe those numbers are under counted based on my lifetime experience (albeit mostly in East Coast cities).

Surveys focused on corporate law departments suggest slightly better numbers. In legal tech, they cite Kristen Sonday's excellent study.

Closing out this section, the authors note that the Bureau of Labor Statistics as of December 2020 showed a decline in legal workers over the past year by 8.4%.  Women (-13.8%) and black workers (-14.6%) suffered disproportionate losses in legal employment. 

Next Pierre and Furnier turn their attention to the legal profession's levers for change to increase diversity within the profession:

1. ABA resolutions 109 and 113 adopted 2016-2018 encourage, but do not mandate, that attorneys and their clients encourage and pursue diversity.  The authors then address corporate law departments' buying power to drive change….or not. After listing various calls to action made by prominent General Counsels in 1989, 1999, 2004 and 2019 they question the rationale of taking the same action repeatedly and expecting a different (e.g. more productive) result. NAMWOLF was founded in 2001 to benefit from this stated objective. NAMWOLF’s Inclusion Initiative launched in 2010 had directed 1.6b to women and minority owned firms as of the time of writing.  In terms of firm size only 4% of NAMWOLF firms have 50 or more lawyers; whereas the smallest firm in the AmLaw 100 by revenue has 265 attorneys.
2. Research and Data: The authors then turn their attention back to diversity surveys with published results, including the ABA Model Diversity Survey, MCCA/Vault, NAWL and NALP.  The authors give special emphasis to the Institute for Inclusion in the Legal Profession research and conferences.
3. Programming from ABA, local bar commissions and affinity bar associations to work fairs and CLE requirements focused on eliminating bias. The authors reference the Law School Innovation Index and go into some detail on their own Talk2Ten program to facilitate HBCU networking events to meet with lawyers all over the country, and the legal tech program they founded at SULC in 2017 from which students have designed over a dozen apps to address implicit bias in the justice system (if any have reached seed or post seed raise and are led by women please feel free to reach out to this  Hearst Lab Scout!) and the Propel Center an initiative of the Atlanta University Center Consortium of HCBUs.  They also make note of Stanford’s CodeX, BYU’s LawX and the Institute for the Future of Law Practice.
4. Legal Technology: In programming the authors emphasize legal tech. In their conclusion they note, “Perhaps, innovation-especially innovation focusing on technology-can be the means to achieve diversity and inclusion in a profession that has long failed to reflect the public it serves.”

With respect to VC investment in tech as a whole only 2.3% goes to women-led companies. In a 2021 TechCrunch article by Jennifer Fan, she notes only 2.4% of funding was allocated to Black and Latinx founders from 2015 to August 2020.  Assuming some overlap between those two groups, not even 5% of VC funding in the past 5 years have gone to companies run by someone other than  a white man. From what I have observed it is doubtful legal tech outperforms tech as a whole on that front. For technology to play a role, we need diverse representation in technology being funded. And technology is not neutral.  Without intentional effort to do otherwise (as we know from legal ops when technology is implemented without reference to business process optimization) technology amplifies and reflects human behavior “as is”.  

Personally, the example I know best and draw upon most is my home town of Atlanta. In the late 1960s and early 1970s  a number of Atlanta civic organizations came together (often meeting at Paschal’s Restaurant) in the deliberate effort to foster partnerships between black and white civic organizations to support common slates of qualified political candidates. In the early 1970s, the goal expanded in partnership with business leaders to pursue a truly integrated city in a multi-pronged approach including improving public schools, neighborhood integration and stabilization, building public transportation and access to employment, better and truly integrated police protection, and active efforts by the white business community to attract professional class African Americans to Atlanta.

Having a strong base of HBCUs, black business and well-organized African American political and civic institutions for white institutions to partner with, of course, was essential. And while progress is imperfect, it was this conscious partnership effort launched in the 1970s that has made Atlanta so attractive to businesses wanting to diversify their employee base in the 2000s, and cultivated so many talented, strong leaders known on the national stage in politics (Go Stacy Abrams and Raphael Warnock!), education, business and culture.

Lawyers are well suited by training to participating in and leading civic organizations. Focusing internally at the same juncture (mid-1960s) Atlanta firm Alston Miller & Gaines - precursor to Alston + Bird - made the conscious decision to recruit female and African American attorneys, with the goal of doing good while attracting good business, hiring their first attorney in each category in 1967 and 1969. In 1973 (in a precursor to many subsequent attempts, some of which Pierre and Fournier note) my dad, then an associate at Alston, circulated a letter among white business leaders participating in these civic efforts suggesting they reach out to their professional advisors, including law firms, to let them know they welcomed professional advisors, irrespective of race and gender, and to cultivate the same message internally among their own personnel. He did get called into the partner’s office, but the partnership supported his statement and his career continued to flourish.

Pierre and Furnier in their conclusion reflect on Pope Francis’ TED Talk in which he notes as the world evolves in technology, no one should be left behind. To that I would add Gen. McChrystal ’s observation in his book Team of Teams, that in complex environments change is non-linear and much more difficult to parse than simply complicated linear environments. If there is anything I have learned since 2020 is that we live in a complex environment. How efforts large and small will become amplified in a world of digital media is at this juncture difficult to calculate, but we have multiple opportunities to do our best to make a positive contribution. Let’s together resolve not to waste the opportunities afforded us.