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Excerpted From: Sybil Dunlop and Jenny Gassman-Pines, Why the Legal Profession Is the Nation's Least Diverse (And How to Fix It), 47 Mitchell Hamline Law Review 129 (February 2021) (146 Footnotes) (Full Document)
Our profession is the least diverse in the nation. “Eighty-eight percent of lawyers are White,” and sixty-two percent are male. But law firms' numbers are even more troubling than our profession's generally. The 2019 figures from the National Association for Law Placement show that--at law firms--under one in five equity partners are women (or 19.6 percent), and only 6.6 percent are racial or ethnic minorities. The most depressing news is that we are not making meaningful progress. Currently, Black representation among firm associates is 4.48 percent. This number is less than in 2009 when Black associates constituted 4.66 percent of law firm associates.
While law firms' lack of diversity remains persistent, the narrative explaining the lack of diversity continues to evolve. For years, commentators and scholars assumed that the issue was one of pipeline. With respect to gender equity, people expected that once law school graduation rates equalized between men and women, the “pipeline would fuel firm diversity and cause partnerships to equalize as well.” Yet, women and men have graduated from law schools in nearly equal numbers since the 1980s, and the disparity remains. With respect to racial and ethnic diversity, although Blacks, Latinos, Asian Americans, and Native Americans constitute one-fifth of law school graduates, these numbers are not reflected in law firms-- especially not among the senior levels.
Fourteen years ago, the New York Times suggested that so few women reach the top of big law firms due to a lack of mentorship, lack of networking opportunities, and the demands of motherhood, in which firm structures did not support working parents. More recent research highlights the role of bias in law firms as impacting both women and people of color. For example, one study showed that law firm partners rated the same legal memo higher when they believed a White associate drafted it than when they believed a Black associate drafted it. But there are downsides with an implicit bias narrative. It is both overbroad and inappropriate to view all discrimination as unconscious or implicit (and courts, of course, struggle to accept claims based on allegedly unconscious actions). Moreover, lawyers at firms continue to experience explicit racism and sexism, including micro-aggressions, racist staffing decisions, and even sexual assault that is anything but unconscious or implicit.
This article begins from the premise that there is no single reason for our profession's stubborn lack of diversity. Instead, a multitude of factors, including systemic racism and sexism, unconscious bias, and law firm structures, contribute to this problem. This article aims to help solve the problem by offering a toolkit of practical actions that law firms can implement. We crafted this toolkit by analyzing the research, identifying the problems, reviewing recommended best practices, and listening to successful diverse attorneys who identified what worked and what did not in their offices and on their own paths to success.
As a first step, Section II of this article provides the authors' positions as to why improving our profession's diversity is of crucial importance.
Section III sets forth our research methods and provides an overview of our interviews with more than twenty diverse attorneys.
Section IV catalogs why the legal profession (and law firms more specifically) struggle to hire, promote, and retain diverse talent.
Section V details the ways in which this struggle plays out in the hiring, promotion, and retention of diverse talent and offers a toolkit for change.
Section VI offers diverse attorneys' strategies for addressing some of these obstacles individually.
And Section VII concludes by returning to the voices of the successful, diverse attorneys that we interviewed. We asked our interviewees how they stay motivated in the face of these issues. Their responses were inspiring and haunting.
[. . .]
We concluded every one of our interviews by asking our successful interviewees how they stayed motivated in their work. We share a sampling of their answers here because we found them inspiring and also haunting, and we hope other attorneys working to change the face of the legal profession will too.
• “I don't have the luxury of being depressed or exhausted. Last night, I was working until 1 a.m. I was thinking, I don't have the brain power, but then I thought of my mom. I come from [a] blended family. I have an adopted brother. I had to move out of the house when I was 17. I don't have the luxury of being sad. I owe my children financial stability.”
• “I used to get motivated by the advocacy piece--trying to figure out how I could lift women up. After years of doing that and seeing nothing change, that lost its ability to energize me.”
• “How do I stay motivated? Stubbornness! They can't make me quit.”
• “I try to find pro bono work that motivates me.”
• “I get depressed about this often. I do feel somewhat alienated in my environment. I question often whether I want to continue living a life where I go to work and don't have a sense of belonging.”
• “My soul always wants to grow. What are the lessons it would like to learn? I don't learn through ponies and rainbows. I learn through really painful experiences. Being a woman and being a person of color, there were some hard experiences but also great opportunities that came because I look the way I do. I remind myself of this.”
• “White Americans have a distinctly 'me, myself, and I’ mentality with a goal to be as self-sufficient. The self is so important. I have always grown up knowing that I had an obligation to my family, and I was okay with that. I often push myself to keep trying or keep achieving because I have a strong desire to make my family proud and ancestors proud. I know that my grandparents did the same for me. They wanted their kids to get an education.”
What does this all mean? It means that if we do not affirmatively do more and do better, the needle will not move on this issue. If we keep doing what we are doing right now, law firms will continue to be a place where success is mostly enjoyed by white men. Change requires each of us, and our law firms, to take action, and it is important that we do so. The legitimacy of our legal profession depends on it.
Sybil Dunlop and Jenny Gassman-Pines are partners at Greene Espel PLLP. They co-founded their law firm's Diversity, Equity and Inclusion practice, and they travel the country providing assessments and recommendations while creating programing to help law firms (and other organizational clients) meet their diversity, equity, and inclusion goals.
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