Beyond the Business Case: Diversity and the Small/Medium Firm

Transcription

1 Beyond the Business Case - Diversity and the Small/Medium Firm Beyond the Business Case: Diversity and the Small/Medium Firm Martin Greene Greene & Letts Chicago, IL H. Scott Johnson PCT Law Group, PLLC Alexandria, VA Anna Torres Powers McNalis Torres Teebagy Luongo West Palm Beach, FL Linda Wong Wong Fleming LLC Princeton, New Jersey

2 I. BEYOND THE BUZZWORD: MAKING DIVERSITY MEANINGFUL FOR YOUR BUSINESS By Joseph M. Hanna Over the last twenty years, there has been much discussion surrounding the need for equal opportunity and increased diversity in America s professional workforce. However, the legal profession, in particular, has effectuated little change. Because we live in a pluralistic society, legal employers must move beyond the diversity rhetoric and take proactive measures to promote and sustain diversity in their legal business. As a fundamental matter, in order to promote and sustain diversity in the legal field, employers must have a clear understanding of what diversity in the workplace really means and how it may benefit their businesses. Diversity Defined We begin by examining the diversity problem by articulating a working definition of workplace diversity based upon common interpretations. Diversity has been broadly defined as significant differences among people. i This view has been elaborated to include variations in all significant human attributes, such as communication style, education, family status, military experience, organizational role and level, religion, first language, geographic location, income, work experience and work style, which impact a person s values, opportunities and perceptions in the workplace. ii Most interpretations of diversity, including the broad view and the narrow legal model, ultimately encompass the representation of significant human dissimilarities found within society at large. Therefore, we define workplace diversity as a plurality in the workplace which reflects considerable cultural differences existing in American society as a whole, including, but not limited to, race, ethnicity, gender, religion, disability, and sexual orientation. Benefits of Fostering Diversity in the Legal Workplace The value of such workplace diversity is often overlooked by legal employers. Diversity can lead to new and innovative means of organizational management and problem solving. It places legal businesses in a better position to attract new clients and understand the needs of current clients. In April 2010, the American Bar Association ( ABA ) Presidential Initiative Commission on Diversity published Diversity in the Legal Profession: The Next Steps. iii This initiative offers recommendations on incorporating race, ethnicity, gender, sexual orientation and disabilities into the modern diverse legal workplace. The report sets forth four rationales for improving diversity in the legal profession: iv 1. The Democracy Rationale. Diverse attorneys and judges foster the trust of citizens in the mechanisms of government and the rule of law. American society was founded upon the principle that diversity should be accepted, encouraged and appreciated. Policies aimed at creating and maintaining diversity in the workplace help to strengthen core social values. 2. The Business Rationale. Businesses are responding to a global market by creating workforces from many different backgrounds and perspectives. Sometimes, clients prefer or even demand lawyers with a diverse cultural or linguistic background. Legal businesses which effectively recruit and retain a diverse staff will be more appealing to the changing face of clientele. 3. The Leadership Rationale. Lawyers often rise to civic leadership positions. It is important that these leadership positions are broadly inclusive. 4. The Demographic Rationale. The Census Bureau projects that by 2042 the U.S. will be a majority minority country, and therefore it is imperative that the nation s attorneys become diverse to reflect the country s population. In 2008, 46.7 million Hispanics resided in the U.S. It is predicted that million Hispanics will reside in the U.S. in There were 41.1 million black residents in the U.S. in 2008, with a projected number of 65.7 million black residents in Similarly, 15.5 million Asians resided in the U.S. in 2008, and that number is projected to increase to 40.6 million in Diversity will continue to increase at law firms for many reasons. It is obvious that we are a diverse society. Diversity is an important part of doing business in today s day and age. In 1999, more than 400 chief legal officers of Fortune 500 companies signed what has become known as the Diversity Statement ( Diversity in the Workplace: A

3 Statement of Principle ), as a commitment to promoting diversity in the workplace. v Over the last decade, as companies have become more dedicated to diversity internally with their own workforce, they have begun to expect more diverse outside counsel as well. In July 2008, Microsoft launched the Law Firm Diversity Program. vi This program offers incentives by way of a 2 percent bonus at the end of a fiscal year for firms which have either increased the hours worked by U.S.-based diverse attorneys by 2 percent of the total hours worked on Microsoft matters, or have increased the total number of U.S.-based diverse attorneys employed by the firm by 0.5 percent. vii Discussing this program, Microsoft General Counsel Brad Smith stated: We believe that diversity in our legal teams is a business necessity [w]e cannot be effective if we cannot understand and appreciate the interests and needs of the incredibly diverse individuals who make up our stakeholder groups. viii Joseph K. West, President and CEO of the Minority Corporate Counsel Association ( MCCA ), has stated: Our profession has been at the forefront of changing our society for the better. [W]e see less and less diversity among the ranks of our lawyers, particularly in large firms. [O]ur profession still remains the least diverse white collar profession in this country. It is incumbent upon all of us in this profession to see to it that we develop the full range of talent that can help address our myriad problems. Studies show that diverse groups are more creative about problem solving. We need to deploy all of our available talent to problem solving to meet our country s challenges. ix The State of Diversity in the Legal Profession The legal profession is becoming increasingly cognizant of the benefits of diversity and the need for rapid progress in the development of successful strategies for implementing effective diversity programs in legal businesses. In this regard, several organizations have studied and evaluated the diversity problem. The MCCA has published numerous research reports focusing on the diversity initiative. The first report, Creating Pathways to Diversity: A Study of Law Department Best Practices, was released in 2000 and articulated three steps toward achieving meaningful diversity in the nation s corporate law departments. x These three steps include: (1) Compliance, (2) Diversity, and (3) Inclusion. xi In 2005, the MCCA conducted a further study to assess the progress of corporate law departments. xii The study revealed that many legal departments had reached the Inclusion phase. xiii The final step of Inclusion requires an employer to fully recognize the value of its diverse staff and utilize the skills and talents a diverse team brings. xiv The most recent generalized report from the MCCA, entitled Sustaining Pathways to Diversity, notes that a lot has changed for the better over the years. xv However, circumstances have not changed enough in many areas and old attitudes die hard, despite the best of intentions. xvi In 2003, the U.S. Equal Employment Opportunity Commission ( Commission ) released a study examining the changes in the employment status of women and minority attorneys since xvii The study also analyzed the relationship between associates and partners using data collected by the National Association of Legal Placement ( NALP ). The Commission reported an increase in the number of women and minority individuals who received J.D. degrees. xviii The number of women receiving degrees grew from 33 percent to 48.3 percent from 1982 to xix The number of African Americans grew from 4.2 percent to 7.2 percent, Hispanics grew from 2.3 percent to 5.7 percent, Asian Americans grew from 1.3 percent to 6.5 percent, and the number of Native Americans increased to 0.7 percent. xx This study also demonstrated that the number of women and minority attorneys increased substantially from 1975 to xxi The percentage of women attorneys increased from 14.4 percent to 40.3 percent, the percentage of African American attorneys increased from 2.3 percent to 4.4 percent, the percentage of Hispanic attorneys increased from 0.7 percent to 2.9 percent, the percentage of Asian Americans increased from 0.5 percent to 5.3 percent, and the Native American representation grew from 0 percent to 0.2 percent. xxii However, the study revealed a rather troubling disparity with respect to the chances of career advancement to partnership. The average number of white male partners in the sample firms was 62.88, while the average number of women partners was only 12.71, the average number of African American partners was 1.076, the average number of Hispanic partners was 0.630, and the average number of Asian American partners was xxiii

4 The NALP produced a report in November 2011 that examined minorities and women in the legal workplace since xxiv The report gathered information from almost 124,000 partners, associates and lawyers in 1,349 offices nationwide. xxv According to this report, only 19.5 percent of partners in major U.S. law firms are women attorneys. xxvi In 1993, percent of partners were women. xxvii Further, only 2.04 percent of these partners are minority women. xxviii Just 4.52 percent of partners are minority men. In 1993, minorities accounted for 2.55 percent of partners, and in 2011, minorities accounted for a total of 6.56 percent of partners. xxix The ABA Commission on Racial and Ethnic Diversity in the Profession published a report entitled Miles to Go 2000: Progress of Minorities in the Legal Profession, which also examined the representation of women and minorities on a national level. xxx The report noted high attrition rates for minority and women attorneys in law firms. It was reported that more than 50 percent of all minority associates leave firms within the first three years of practice due to professional isolation and immobility. xxxi As per the ABA report, minority associates face social and professional isolation in law firms and have difficulty gaining access to mentors and quality work assignments. xxxii In a subsequent report, Miles to Go 2004: Progress of Minorities in the Legal Profession, the ABA Commission noted that minorities are less likely to receive often coveted jobs after law school, such as judicial clerkships or associateships in private practice. xxxiii Additionally, the report noted that minorities continue to be significantly less likely to advance to high-level jobs, such as law partner or corporate general counsel. xxxiv In its most recent April 2010 report, Diversity in the Legal Profession: The Next Steps, the ABA Commission opines that despite diversity efforts thus far, diverse individuals continue to be vastly underrepresented in the legal profession. xxxv The LGBT community has more recently been recognized as a source of diversity in the legal profession. The numbers of openly lesbian, gay, bisexual, and transgender lawyers remain relatively small. According to NALP, the 2003 Directory of Legal Employers ( NDLE ) showed that less than 1 percent of the total lawyers represented were openly LGBT. xxxvi The NDLE stated that only 1.88 percent of total lawyers represented were openly LGBT. xxxvii Lawyers with disabilities are also poorly represented in the legal profession. Partners with disabilities are particularly scarce, with 0.23 percent of partners reported as having a disability in xxxviii Additionally, associates with disabilities account for just 0.17 percent of associates in major law firms, according to a 2011 NALP report. xxxix These slight statistics appear despite the fact that approximately 2 percent of law school graduates self-identify as having a disability. xl In support of its commitment to diversity in the legal profession, the ABA Commission has produced a one-page pledge, Disability Diversity in the Legal Profession: A Pledge for Change, for legal employers to sign. xli This pledge, most recently amended in 2012, affirms the signatory s commitment to disability diversity, and recognizes that diversity is in the best interest of the profession, those the profession serves, as well as the organization making the commitment. xlii Combined, the results of these studies and reports clearly show that while progress has been made, there is still a need for further advancement of diversity in the legal profession. Progress Observed Fortunately, the diversity talks of the past decade have not been entirely wasted on the legal profession. The 2012 Diversity Scorecard of The American Lawyer demonstrates that the percentage of minority attorneys in the United States largest firms has remained relatively stable within the past year. xliii The profession is observing an increase in Fortune 500 general counsel of color. xliv Forty-seven of the 2012 Fortune 500 companies employed minorities as general counsel over the previous year. xlv Of those 47 individuals, 28 are African Americans, 11 are Asian Americans, six are Hispanic Americans, and two are of Middle Eastern descent. xlvi In 2011, Fortune 500 companies employed 43 general counsel of color. xlvii A new record has been set for female minority general counsel. xlviii In 2012, 19 women of color were employed as Fortune 500 general counsel, compared to 8 women holding the same position in xlix With his doubling of

5 numbers over the past three years, it has been predicted that it may be minority women who drive growth in the years to come. l In fact, women are performing well across the board. li In 2011, 108 women served as top legal officers in Fortune 500 companies. lii Of these 108, 90 were white/caucasians (non-hispanic), 11 were African Americans, four were Hispanics, two were Asian Americans, and one was a woman of Middle Eastern (Lebanese) descent. liii Four of the top ten oil companies on the Fortune 500 list have women general counsel. liv Women also head the legal departments of some of the fastest-growing and the most profitable companies on the list. lv Additionally, close examination of diversity numbers in certain geographical locations suggests that some of the largest metropolitan areas in the United States house diversity micro-climates. lvi In these micro-climates, the hiring and advancement of diverse individuals is more or less common than for the U.S. legal market as a whole. lvii For example, African American partners are disproportionately concentrated in Washington, DC and Atlanta, Georgia. lviii Four out of five of these attorneys are partners at Am Law 200 firms. lix Hispanic partners are concentrated in Miami, Dallas, Houston, and Los Angeles, as compared to the representation in the general legal market. lx Therefore, in certain legal geographical areas, pockets of diversity are beginning to grow in meaningful ways. lxi The MCAA recently conducted the 2011 Law Firm Diversity Professional Survey, which examined 110 top law firm s and found that 82 percent of the responding law firms had a diversity professional. lxii The primary responsibilities of these professionals include: developing and promoting diversity goals and strategies, implementing and monitoring the objectives and strategies, promoting awareness of the issues that impact diversity in firm management, operations and governance, developing programs to create an inclusive environment, and ensuring the development and approval of a short-term and long-term diversity plan. lxiii The proactive step of hiring a diversity professional suggests positive forward movement toward increasing diversity in the legal profession. And the hiring of these professionals has led to programs fostering diversity nationwide. However, if the legal profession as a whole is to experience true diversity, legal employers themselves must develop an understanding of diversity and its benefits, and then assess the diversity issue in their workplace and develop strategies for effectuating change where necessary. Impediments to Increasing Diversity in the Legal Business The ABA Commission on Racial and Ethnic Diversity in the Profession released its annual Goal III Report for 2012, noting challenges to fostering diversity moving forward. lxiv Despite the fact that the U.S Census reported that people of color comprised 36.3 percent of the United States population, minorities constitute less than 10 percent of the ABA s membership. lxv According to this report, there is an overwhelming concentration of diverse ABA members in lower-level leadership tracks. lxvi While these positions will serve to boost minority participation numbers in the short-term, these positions do not have a large potential for advancement or growth. lxvii Legal institutions are recognizing the need to incorporate comprehensive diversity strategies within their businesses. lxviii Numerous bar associations and law firms have incorporated diversity goals and strategies into their plans of operation. lxix Even though law firms are increasingly recognizing the importance of lawyer diversity, the recession has led to downsizing and cutbacks that often means reduced funds for diversity initiatives. lxx Additionally, the cost of a legal education makes the debt burden of attending law school increasingly difficult for poor and working class communities who would otherwise contribute to a diverse legal community. lxxi Those diverse individuals who are in the legal workforce are continuing to struggle with the feeling that they are not included in the workplace. For example, women and minorities are less likely to feel as though they are treated as equals by their peers. lxxii Research suggests that women and minorities report that they are less likely to receive the work they are looking for, and that they feel their performance evaluations are unfair. lxxiii As the Hon. Ellen F. Rosenblum, commission chair on the creation of Diversity in the Legal Profession: The Next Steps, has stated: We are making progress, but in some areas we re still stagnant, and we re trying to figure out why. lxxiv Problems cannot be solved unless they are first identified. Therefore, legal employers should attempt to identify and assess diversity issues which may exist in their particular business. An assessment of diversity issues may include both quantitative and qualitative methods, such as gathering numerical data on the percentage of women and

6 minority attorneys, conducting interviews of associates and partners regarding the perception of diversity in the workplace, and conducting a focus group to evaluate the status of diversity. Once the nature of diversity issues is known, employers are in a position to develop appropriate strategies for attacking the issues. Success Strategies in Implementing an Effective Diversity Program Managing partners and firm leaders are changing the way they manage diversity in their firms. It is not just about the numbers. It is also about the culture. New approaches are emerging, such as action-oriented approaches that embrace diversity and work toward a firm culture that values and reflects the cultures of all of its attorneys. Richard J. Cohen, Managing Partner of Goldberg Segalla LLP, a law firm with eleven offices across four states (New York, Pennsylvania, New Jersey, and Connecticut) and London, England, believes that: Commitment to diversity and a strong initiative to implementing it on a firm-wide basis is smart business for so many reasons. The Fortune 500 companies that we represent recognize the rewards that diversity brings. The law firms that represent them should as well. It is important to understand and develop successful strategies in implementing an effective diversity program. Every legal business would do well by following these recommendations: 1. Set the context for change in your law firm. The crucial first step in implementing successful diversity initiatives is clearly positioning the intent and scope of the overall change effort. It is imperative that a rationale for adopting change be provided to all members of the firm in order to minimize confusion, build a firm-wide understanding and gain wide-spread support for your diversity initiatives. Early communications to set the stage for implementation should link valuing diversity to changing workforce demographics. 2. Reach out to local law schools and its faculty. Practice group leaders and managing partners should reach out to local faculty members as resources for the recruitment of minority lawyers. Moreover, law firms could use their resources within law schools to communicate with minority law groups to encourage minority applicants. 3. Recruit diverse law students for your firm s summer programs. It is important to assign these law students to influential partners of the firm who will mentor them and give them assignments. 4. Participate in and sponsor job fairs and diversity seminars which are offered by different legal associations. The Defense Research Institute ( DRI ) holds an annual Diversity for Success Seminar in June for minority attorneys and law firm leaders, which is designed to improve marketing skills and increase law firm success in the recruitment and retention of minority attorneys. The seminar also provides a unique opportunity for minority lawyers and their law firms to interview with corporations committed to diversifying their national outside counsel. 5. Recruit diverse candidates for both partner and associate positions. In today s environment, it is imperative that law firms look at their business practices and begin to take a serious look at recruiting minority candidates. The business has spoken and law firms must listen. Microsoft launched the Law Firm Diversity Program, but several other corporations have taken similar initiatives as well. For example, in 2005, Wal-Mart sent a letter to its top 100 law firms informing them that at least one person of color and one woman must be among the top five relationship attorneys that handled its business or Wal-Mart would move its business to another firm. lxxv Other Fortune 500 companies, such as Visa International, Del Monte, Pitney Bowes and Sara Lee have also begun to implement strict guidelines requiring outside counsel to demonstrate that there are substantive numbers of women and minority lawyers in the upper levels of their firms. lxxvi 6. Use professional consultants to help recruit diverse attorneys. Professional consulting firms who specialize in the recruitment of diverse attorneys are proactive in reaching out to diverse groups of legal talent. 7. Hire a diversity officer or establish a diversity committee or task force to develop and implement a strong internal Diversity Plan. These professionals have the expertise to analyze the strengths and weaknesses at an individual legal business and determine the best course of action to take in order to foster diversity in the workplace.

7 8. Reward attorneys who work to implement an effective diversity management program. As with any business measure or program implementation, measurable results and metrics are key ingredients in effective diversity implementation efforts. For example, the ABA-sponsored Spirit of Excellence Awards celebrate the efforts and accomplishments of lawyers who excel in their professional settings and who have worked to promote a racially and ethnically diverse legal profession. lxxvii In firms committed to implementing a diversity program, results and financial rewards are being linked together so that attorneys who value diversity benefit from proactive efforts. 9. Involve minority lawyers and high-ranking non-minority lawyers on hiring committees and involve them in formal recruiting efforts and interviews of minority candidates. Leading minority partners and nonminority senior attorneys who play instrumental roles in the firm s key management committees, including associate evaluations, compensation, legal personnel, and partnership selection, should also play key roles in the recruiting efforts and interviews of minority candidates. The managing partner and the law firm s executive committee should continue to review and approve a wide-range of programs to enhance the firm s effectiveness in recruiting, retaining and developing diverse attorneys. 10. Law firms should take the initiative and invite local law school groups to visit the firm for an orientation session and an introduction to the firm s practice areas. A law firm should take a proactive approach to contact a nearby law school and discuss opportunities to have diverse law school groups come in and take a tour of the law firm. Practice group leaders can discuss the many different areas of law; explain what is expected of a first-year associate at the firm, and success strategies for getting hired. At the end of the presentation, the partner can field questions from the students and allow the presentation to become interactive. 11. Develop a multicultural mentoring program. As more successful firms work to increase diverse representation at all levels, many have implemented mentoring programs involving influential senior partners and divers, high-potential associates. The most successful programs are based on two key assumptions: (1) mentoring must be inclusive, not exclusive, and (2) cross-cultural mentoring is a learning opportunity for protégés and for mentors. Mentors should assist diverse attorneys in developing important skills, such as writing, networking and understanding business development. 12. Help make high school students aware of what being a lawyer is all about. Local school districts and law firms can implement programs which give high school students the opportunity to get a better understanding and awareness of the legal profession. The law firm can implement a shadow-a-lawyer program. This allows interested students the opportunity to accompany a young associate attorney around for a day to get a first-hand look at what is required to be a lawyer. The length of the shadowing time period can range anywhere from a few hours to a whole day. Law firms can also implement a program designed at adopting schools in the community which would focus on instruction and mentoring the students. Attorneys at the firm could set up a mock-trial program at the local high school and coach the students in order to prepare for competition against other schools. 13. Support pipeline programs designed to interest students in the law. These programs expand civil education and service learning at an early level. Children of college, high school, or even middle school age can learn what it is like to be a lawyer through pre-law boot camps, or long-term mentorship programs. lxxviii After three years of the NALP/Street Law Legal Diversity Pipeline Program, 67% of high school participants responded that they were more interested in becoming a lawyer than before the program, and that they felt inspired by their lawyer mentors as career role models. lxxix 14. Develop knowledgeable and committed leaders in your firm. In order to implement a successful cultural change in your firm, it is imperative that there is a groundswell of leadership support. Without this, implementation efforts will be fruitless diversity initiatives will be unable to move beyond the awareness training stage to address systemic issues and create substantive change. In order to implement any successful firm-changing effort, leadership involvement is seen as crucial to long-term success. More successful diversity efforts are committed to encouraging enthusiastic, visible sponsorship at the senior partner level and providing ongoing executive coaching and education. 15. Examine firm policies and modify to ensure they are inclusive of all employees. The firm should meaningfully address the work/life balance for diverse employees. Policies may be altered to accommodate employees whose families and obligations differ from those of a nuclear heterosexual family. lxxx For example, single

8 mothers may need accommodations to get a child to school in the morning. These actions help reduce isolation of these diverse individuals in the workplace. These suggestions are not a prescriptive checklist of to dos for the profession; some options may work better for one workplace than another. lxxxi However, understanding and valuing diversity are the fundamental first steps in achieving diversity in the workplace. The time has come to take the next steps toward creating and sustaining diversity in our nation s legal profession. If the legal profession is to reap the many benefits of true diversity, legal employers must turn words into action and implement proactive strategies which further diversity. i See MERRIAM-WEBSTER, (last visited July 11, 2012). ii See Diversity in the Legal Profession: The Next Steps, ABA Presidential Initiative Commission on Diversity 5 (Apr. 2010). iii Id. iv Id. at v See Nancy Hatch Woodward, New Faces, New Ideas: Diversity in Law Firms Makes Business Sense, LAWCROSSING.COM, (last visited July 11, 2012). vi See Microsoft Adopts Pay for Performance to Enhance Legal Diversity, Microsoft News Center (July 2008) at vii Id. viii Id. ix MCCA Pathways to Diversity Conference and Awards Gala Celebrate Heroes, THE METROPOLITAN CORPORATE COUNSEL, Jun. 26, 2012, at 26. x See MCCA, Creating Pathways to Diversity: A Study of Law Department Best Practices 4 (2000) at [Creating Pathways to Diversity I]. xi Id. xii See MCAA, Creating Pathways to Diversity: A Study of Law Department Best Practices 5 (2005) at [Creating Pathways to Diversity II]. xiii Id. xiv Creating Pathways to Diversity I, supra note 10, at 4. xv See MCAA, Sustaining Pathways to Diversity, 3 (2009). xvi Id. xvii U.S. Equal Employment Opportunity Commission. Diversity in Law Firms 2 (2003) at xviii Id. at 11. xix Id. xx Id. at 14. xxi Id. at 11. xxii Id. at 14. xxiii Id. at 32. xxiv See Law Firm Diversity Wobbles: Minority Numbers Bounce Back While Women Associates Extend Two-Year Decline, NALP Press Release (Nov. 2011). xxv Id. xxvi Id. xxvii Id. xxviii Id. xxix Id. xxx See Elizabeth Chambliss, Miles to Go 2000: Progress of Minorities in the Legal Profession, ABA Comm. on Racial and Ethnic Diversity in the Profession, Report (2000). xxxi Id. xxxii Id. xxxiii See Elizabeth Chambliss, Miles to Go 2004: Progress of Minorities in the Legal Profession, ABA Comm. on Racial and Ethnic Diversity in the Profession, Report (2004). xxxiv Id. xxxv See The Next Steps, supra note 2, at 5. xxxvi See Most Firms Collect LGBT Lawyer Information, LGBT Representation Steady, NALP Bulletin (Dec. 2011) at xxxvii Id. xxxviii See Law Firm Diversity Wobbles, supra note 24. xxxix Id. xl Id. xli See Pledge for Change: Disability Diversity in the Legal Profession, ABA Commission on Disability Rights, (last visited July 11, 2012).

9 xlii Id. xliii The American Lawyer, Diversity Scorecard 2012, LAW.COM, (May 31, 2012) at xliv MCCA, Minority General Counsel, DIVERSITY & THE BAR, Sept./Oct. 2012, at 30. xlv Id. xlvi Id. xlvii Id. xlviii Id. xlix Id. l Id. at 35. li Id. at 21. lii Id. liii Id. liv Id. lv Id. lvi William D. Henderson, Diversity by the Numbers, NALP Bulletin (July 2012). lvii Id. lviii Id. lix Id. lx Id. lxi Id. lxii See MCCA, 2011 Law Firm Diversity Professional Survey (May 2011) at lxiii Id. at 10. lxiv Executive Summary, Goal III Report: The State of Racial and Ethnic Diversity in the American Bar Association, (2012) at publications/goal_iii_annual_report.html. lxv Id. at 6. lxvi Id. at 84. lxvii Id. lxviii The Next Steps, supra note 2, at 11. lxix Id. lxx Id.. lxxi Id. lxxii See Sustaining Pathways to Diversity, supra note 15, at 5. lxxiii Id. lxxiv See James Podgers, Recession Hurting Legal Profession s Diversity Efforts, Report Says, ABAJOURNAL.COM, (Feb. 4, 2010), legal_professions_diversity_efforts_report_says/. lxxv See Meredith Hobbs, Wal-Mart Demands Diversity in Law Firms, LAW.COM, (July 6, 2005), lxxvi Id. lxxvii See Spirit of Excellence, ABA Commission on Racial and Ethnic Diversity in the Profession, AMERICANBAR.ORG, (last visited July 11, 2012). lxxviii See The Next Steps, supra note 2, at 23. lxxix See Millicent Bond, Lessons from the First Three Years of the NALP/Street Law Legal Diversity Pipeline Program, NALP Bulletin (June 2012) at lxxx See id. at 28. lxxxi See Podgers, supra note 51. II. Convergence and Preferred Provider Programs By Martin P. Greene THE PROBLEM: Corporate law department convergence programs and preferred provider programs have unintentionally resulted in a substantial reduction of legal assignments to minority and/or female owned law firms lxxxi ( MWOLFs ). Corporations have gone to these programs to meet its internal needs and the trend shows no sign of slowing. Many MWOLFs that

10 for decades have provided valued legal services to corporations have now been excluded from participation in these programs. Some of the reasons are that corporations make the early decision that they need law firms with a substantial geographic presence. Since all except for a very few MWOLFs are local in scope, these firms have been excluded from even the notice of the opportunity to make proposals. Oftentimes MWOLFs first learn of the existence of the program when they are advised to transfer their work to a national/non-diverse lxxxi firm. This ends up with the corporations hiring law firms, not lawyers; in direct conflict with the old adage they used to use, We hire lawyers, not law firms. SOLUTIONS: One perceived solution is for corporations to make exceptions to their programs to allow MWOLFs to provide work as local counsel in conjunction with national firms. Another is for MWOLFs to be included as a preferred provider and assigned specialized, low volume, work. These solutions, while admirable, serve as limitations on MWOLFs rather than allowing them the opportunity to do what all other firms seek to do, which is to grow. Moreover, the idea of making an exception to the convergence or preferred provider program, stigmatizes MWOLFs in the minds of some corporate counsel who manage the programs. A better solution might be for MWOLFs to meet current corporate requirements. That is to say, to present corporations with a truly national law firm that has substantial experience in the areas of law corporations require. Two questions must first be answered: What legal form would this law firm take, and; will corporations hire the law firm on the same basis as other national firms? FORM OF THE LAW FIRM: A common suggestion, made mostly by well-meaning individuals who are not law firm partners, is simply, Why don t MWOLFs form a national law firm? Anyone that has experienced the challenges of creating and maintaining a law firm through boom times and recessions; through diversity programs and convergence programs, and; through the demise of dozens of other MWOLFs, knows that the simple question has no simple answer. MWOLFs have proven they can work cooperatively and effectively with each other on sophisticated national matters. (The many affiliations and cooperation agreements among MWOLFs prove this is the case). The question is whether corporate law departments would accept a national entity created by MWOLFs, even if it is a non-traditional law firm. The entity presented for consideration is the joint venture. JOINT VENTURE: Each MWOLF has its own offices, budgets, personnel, policies and culture. A merger of several firms would require melding all of those elements, along with others. Those issues are truly internal matters and should not be of concern to a corporation; therefore a corporation should not require this herculean effort before considering the firm for work. It may well be that the MWOLFs would, at some future point, decide a true merger would be to its advantage; but that should only come after a clear demonstration of corporate support by the assignment of substantial and significant work. This discussion is to propose a better solution. That would be a joint venture to would bring together perhaps as many as two dozen law firms from diverse parts of the country with deep experience in a wide variety of practice areas. This solution also provides the benefit of fully supporting corporations diversity efforts. A joint venture would operate under a completely distinct name from the names of its member law firms. Each law firm would have a vote in the management of the joint venture. Each firm would maintain its own malpractice insurance and the joint venture would maintain an umbrella policy. The joint venture would have a management committee responsible for marketing, assignment of work, quality control, billing and disbursement of fees among member firms. The corporation would contract with the joint venture, would receive invoices from the joint venture and would pay the joint venture. Corporations would have the ability to decide who the relationship partner would be, just as corporations do with respect to any national law firm. The joint venture would at all times maintain minority and/or women owned law firm certifications from appropriate agencies. Individual firm members of the joint venture may be non-certified law firms but at no time would the proportion of non-certified law firms cause the joint venture to place its certification in jeopardy. The point of being sufficiently flexible to allow membership on the part of non certified

11 law firms is to make certain that full geographic and subject matter coverage can be provided to corporations with legal needs in any part of the country. This concept is not entirely new. Other networks among MWOLF firms have been created to address corporate needs. The efforts go back as far as the 1980s when and entity named The Elephant was created, at least partially in response to the ABA Minority Counsel Program. The current effort differs in substantial ways. The first is that rather than creating a network, MWOLFS seek to create an actual law firm that would stand behind the work of all of its lawyers. Another difference is that this effort will depend upon a successful vetting of the idea before it is put in place. In other words, the joint venture partners would need to obtain feedback from a select sample of corporate law department decision-makers before initiating the entity. The purpose would be to learn whether the joint venture would be given real consideration and a fair opportunity to compete for work. The partners welcome any input on these ideas; whether it is encouraging, constructive, or critical. The partners want nothing more than to get it right and to provide what corporations truly need. To be successful, all joint venture participants are willing to support their efforts with their resources and reputations. VETTING Given the joint venture described above, the following is an example of the types of questions corporations should be asked, in confidence, pm the proposal: 1. Would your corporation consider and/or retain the joint venture on the same basis and at similar rates as it retains national law firms? 2. If not, are there changes to the joint venture you would suggest that would cause your corporation to consider and/or retain the joint venture on the same basis as national law firms? If so, please describe. 3. Would you direct your deputies to consider the joint venture on the same basis as national law firms? 4. Would you direct your deputies to issue requests for proposals to the joint venture on the same basis as national law firms? 5. Are there any practice areas you would suggest the joint venture offer to your corporation that would increase the opportunities for the joint venture? If so, please list. 6. Would you inform your counterparts in other corporations of the existence of the joint venture and suggest they consider retaining it? 7. Are there any other factors you would suggest be considered by the joint venture, or are there other persons you would suggest be consulted for input on the joint venture? If so, please describe. 8. Please provide information on your corporation in terms of size, geographic coverage and industry. 9. If you would like the joint venture to be tailored to meet your corporation s specific legal needs, please provide your contact information.