Perspective: For Law Firms, Diversity Is A Matter of Choice

April 28, 2016

Editor’s Note: The author of this post chaired a major law firm for 15 years.

By Stephen Poor, Chair Emeritus, Seyfarth Shaw

At the turn of the century, BigLaw was in the process of losing — wholesale — an entire generation of superb lawyers.

A generation lost to myopic insistence on the status quo

This lost generation was comprised mostly, but not entirely, of women. This is a generation that fell victim to an industry-wide epidemic of myopia. We believed that there was one established pathway to success: the way the industry had “always” worked, and by implication the only legitimate way to earn continued elevation and progress.

Firms everywhere failed to recognize the need to provide different working structures or workplace flexibility; in so doing, the profession overlooked the critical importance of workplace diversity to organizational vitality.

Whose fault is it anyway?

Most pernicious of the industry’s failings was the implicit shifting of blame to those lawyers who opted out — quietly or otherwise — of the all-consuming race to the top of the ziggurat. Their “failure to adapt” to culturally ingrained, highly institutionalized demands could not possibly be the fault of the institution. Rather, the fault lay with those unwilling or unable to adapt.

As a result, our industry lost a generation of talented lawyers. The numbers have been well dissected over the years and are familiar to everyone. By the year 2000, women comprised about half of law school populations yet experienced significantly higher attrition rates than their male counterparts as they progressed in their careers. The same disparity could be found for attorneys of color.

Regardless of where the lion’s share of the blame belongs, I believe both the individual and the institution suffered in the process, as the broader ecosystem of private practice was denied the vibrancy and resilience that springs from diversity of perspectives, viewpoints and ideas.

Our industry’s loss, of course, was the gain of in-house legal teams, law schools, governments and other organizations who offered a better, broader, more flexible and more adjustable set of choices for these lawyers.

Policies have changed with changing times, but the blame game continues

Fast forward sixteen years and we stand in a very different place. The focus on diversity and inclusion in our profession has never been higher. Purchasers of legal services are far more focused on the composition of the legal teams servicing their clients than ever before. A recent report by the Diversity and Flexibility Alliance indicates that virtually every major law firm now has policies designed to capture the value of different working relationships: flexible work arrangements, high-value alternative roles, off-ramps and on-ramps, and the like.

Yet the profession must take a hard look at how far we still have left to go. Despite undeniable progress, law still remains among the least diverse professions in the nation. Like many industries, we continue to see high attrition rates, particularly among women and attorneys of color. Women, for example, now comprise roughly a third of the profession yet less than one in five are law firm partners, general counsel of Fortune 500 companies or law school deans. Even as law firms recruit 60 percent women in the junior ranks, the retention gap continues to widen over time, resulting in senior partner levels of 80 percent men.

The causes of this situation are incredibly complex and have multiple variables — hardly susceptible to resolution in a post. One observation, however, caught my eye.  In the report of the DFA referenced above, their CEO Manar Morales applauds the adoption of flexible work option policies, but notes the persistence of “stigma” around actual use of the policies.

Similarly, in an article in the Washington Post, Deborah Rhodes—a Stanford professor and prolific author on these topics — points to the underlying mindset in the industry. She writes:  “Although bar leaders generally acknowledge the problem of work/life balance, they often place responsibility for addressing it anywhere and everywhere else. Clients take much of the blame.”

True flexibility requires intentional and committed choices from the institution

It appears, then, that the industry has gone through the motions of creating choices for lawyers who want flexibility. The work that remains is simply this: for each organization to tackle the critical work of evolving its culture, for every institution to actually supportits talent in choosing alternative pathways, and for every law firm to embrace the spirit and intent behind its flexible work policies.

This question of culture – attitude – mindset – call it what you will, is certainly critical. Simply put, we stand at an interesting moment of time that affords our industry an opportunity to accelerate the pace of change. However, real change will require sustained commitment and decisive actions, and I believe that law firms will need to make three intentional and committed choices to achieve the necessary cultural shift toward real diversity, inclusion and flexibility.

The first is the choice to take full responsibility for factors under the firm’s control and to take organizational ownership over outcomes and results. As Professor Rhodes notes, clients often get blamed for an inability to provide flexibility. This is demonstrably untrue and quite simply nonsense. In fact, I think client desires have been one of the most important drivers of the progress the industry has made in this arena. Clients are increasingly thinking differently about their service delivery chain, their real needs and the delivery model that best fits their interests. And, in fact, they have an increasingly broad selection of providers from which to pick. Despite all this, clients have taken a clear stance in favor of diversity and inclusion, leveraging their purchasing power to incentivize better behaviors from law firms. It’s high time law firms acknowledged that clients care about responsiveness and value — not about the structure and mechanics of the firm’s working relationship with its talent.

The second is the choice to engage seriously, collaboratively and in good faith with a new generation of lawyers coming into the workplace. They expect a different bargain with their employers. Working 2300 hours a year for a slim chance of grabbing the golden ring in a decade is not a highly regarded privilege. Law firms can choose to see this as entitlement and an erosion of work ethic—as a failure to meet standards established by a preceding generation. Conversely, law firms can choose to view this generation as offering a different set of contributions in exchange for a different set of incentives. If organizations approach the challenge with an open mind, new paradigms of value exchange might emerge, ones that are more relevant and suited to the times that are coming rather than the times that have passed.

The third is the choice to invest strategically and thoughtfully in new technology. The tools now available and emerging enable working relationships across employers, employees, and clients in ways vastly different that sixteen years ago. These tools bring with them the opportunity to rethink the way in which we practice. Of course, they can be as much a curse as a blessing. They can enable flexibility or chain us to our job. It is how the technology is deployed and used to enable the human dynamic that is the key.

These forces promise to continue to put pressure on our industry to change and improve. If we can bring a different mindset — one that looks holistically at the career path and value people can offer — we can harness these forces to drive material change.

It is important, however, to look at the career life cycle for people and embrace the reality that there is no one path that works for everyone.  Careers are no longer linear.  On ramps.  Off ramps.  Flexible working schedules. New-look opportunities for promotion and challenging work.  The path to success now has many more forks, presenting both individual and institution with more frequent decisions and a broader array of options to evaluate.

The true challenge is about meeting people where they are at their particular stage of life and making a commitment to help them find new and better ways to create value for our organization, our clients and themselves.  And that is a choice that is left to every institution in our great yet flawed profession.

For more essays from Stephen Poor (@stephen_poor) and Seyfarth on change in the legal industry, visit Rethink the Practice.

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