By: Amy Epstein Gluck

Much has been said and written lately about BigLaw’s diversity, or lack thereof.

According to our friends at Above the Law, the number of women making partner at AmLaw 200 firm was at a 5-year low last year. One BigLaw firm, in particular, was excoriated in the media when they posted a photo of their newest “partner class”: 12 new partners—not one of them a person of color and only one woman.

What Do Clients Think About Lack of Diversity and Inclusion?

What do clients think about this? Well, recently, more than 170 GCs and chief legal officers signed an open letter to BigLaw firms, complaining about partnership intakes that “remain largely male and largely white” and saying that their companies will divert legal spend to firms that commit to diversity and inclusion. You can read the entire letter here.

Sounds good and seems on trend to how clients have been reacting to such outdated structures. As my partner Rich Cohen told us a while ago here, the BigLaw model is outdated, and clients do not like it. In fact, Deloitte recently published a study of future trends in the legal profession and found, among other things, the following:

Conventional law firms are no longer meeting today’s business needs. The majority (55%) of participants in the study (legal counsel, general counsel – or CEOs and CFOs) have taken or are considering a significant review of their legal suppliers.

and

52% of in-house legal departments are considering buying legal services from nontraditional law firms.

Indeed, as Rich wrote here, BigLaw has become “an all-consuming GargantuLaw, whose ‘bloated army hardly marches on an empty stomach.’”

You gotta love the visual on that, huh?

Why Put Diversity and Inclusion “Ahead of Ability”?

Anyway, I read some interesting pushback to the significance of diversity and inclusion in BigLaw firms—specifically, that putting diversity ahead of ability can be a self-defeating proposition for the firm — and the client. We put the needs of the client and firm first, right?

Well, not exactly.

Two words color (pun intended) the perspective of the non-minority person who stated that in law, “ability should outweigh diversity”—implicit bias.

Implicit bias is the natural human process of categorizing like objects together; such cognitive biases can result in and perpetuate individuals’ implicit reliance on stereotypes. Perhaps, to a white male, it is not evident that there could have been more women (than the one white woman) and persons of color who were equal to if not more deserving of the title “Partner” at the BigLaw firm in question. However, this perspective assumes that the white, mostly male freshman partner class reflects the highest ability at that law firm and fails to consider implicit bias.

Man, People, Achievement, African

There Are Countless Examples of Implicit Bias

Need examples? According to the ABA Commission of Women in the Profession and the Minority Corporate Counsel Association’s report issued in 2018, women of color, white women, and men of color have reported that they have to go “above and beyond” to get the same recognition and respect as their colleagues, with women of color reporting bias at a higher level than any other group, 35 percentage points higher than white men and that they are held to higher standards than their col­leagues at a level 32 percentage points higher than white men.

Men of color and women of all races receive clear messages that they do not fit with people’s image of a lawyer. Women are mistaken as secretaries at law firms and as nurses in hospitals when they are not. Men of color are mistaken as janitors. You may not know that if you’re a white male—your very face commands a certain level of authority.

Also according to the ABA/MCCA report, women of color reported that they had been mistaken for administrative staff, court personnel, or janitorial staff at a level 50 percentage points higher than white men. As a lawyer for more than twenty years, I have been mistaken as another lawyer’s girlfriend (instead of colleague), paralegal, and assistant, and one of my other female partners has been mistaken for a court reporter.

In fact, all women reported doing about 20% more administrative tasks (such as taking notes) than their white male colleagues—office housework.

Additionally, let’s consider “clients”—are all of a law firm’s clients white? Is the C-suite in each corporate client white?

Remember, as I told you heretrue diversity is not about statistics. While we all bring our own backgrounds and experiences to our workplaces, diversity is about having a wealth of different perspectives and experiences—and enriching the workplace because of it. That’s why a diverse culture is key for law firms—and for clients.

In fact, countless studies have shown that fostering a diverse and inclusive environment translates to less attrition and increased profitability for companies committed to it from the top down. The Harvard Business Review (HBR) stated here, in an article aptly titled “Diversity Doesn’t Stick Without Inclusion,” that leaders have long recognized that a diverse workforce of women, people of color, and LGBTQ individuals confers a competitive edge when selling products or services to diverse end users.

It’s not effective representation for clients that we should be worried about here.