The World of Document Review #3 Diversity Rocks! Maybe Not.

Having whipped myself into a frenzy in my last post, I’ll try to stay calm this time as I continue to explore the question whether we should celebrate the very diverse pop-up law firm of contract attorneys doing document review work. And like I said, we won’t really understand the subtext of the pop-up narrative unless we understand the meta-narrative that created it.

To set this up I’m going to use an interesting 2015 paper by Rhode and Ricca titled, “Diversity in the Legal Profession: Perspectives from Managing Partners and General Counsel,” as well as a bit of stuff from the 2016 National Association for Law Placement (NALP) report on diversity in law firms. Rhode and Ricca surveyed the top dogs at large law firms and Fortune 100 corporations to explore why, despite professed commitments to diversity, “women and minorities are grossly underrepresented at the top and overrepresented at the bottom.” The stats for women are abysmal, especially for law firms. Here, though, I’m going to focus on minorities. And although the survey covers in-house corporate legal counsel, I’m going to look only at large law firms. Here are some of the authors’ stats:

  • “Although blacks, Latinos, Asian Americans, and Native Americans now constitute about one-third of the population and one-fifth of law school graduates, they still only account for fewer than 7 percent of law firm partners. The situation is particularly bleak for African Americans, who constitute only 3 percent of law firm partners.”
  • “In major law firms, about half of lawyers of color leave within three years.”
  • “Attrition is highest for women of color; about 75 percent depart by their fifth year and 85 percent before their seventh.”
  • “Compensation in law firms is lower for lawyers of color, with minority women at the bottom of the financial pecking order.”

The NALP report shows little improvement in the numbers (though larger firms fair better than smaller ones).

So what gives? The authors describe various diversity initiatives in large law firms, and yet the numbers are abysmal. Some common responses by the interviewees and my responses:

“Fierce competition” for a limited pool of hotshots. The corporate clients of law firms steal them away. Trying to hire laterally is really hard because firms don’t want to see their hotshots leave for fear of getting bad grades for diversity. LAME: This reason suggests that lawyers of color are treated as scarce commodities, window dressing that firms desperately fight for. You took my mannequin of color! Not fair!

Some blame “the pipeline:” law schools aren’t doing their job to produce diverse talented graduates. LAME: Yeah, I’ve noted that law schools aren’t diverse enough. But the minority students who are there can be very talented. That won’t matter, though, because they’re not in the 10 percent of their class—for reasons I’ve told you about. Large law firms won’t touch them. Why? Because firms have their own resumes—go to any firm website. Firms have to show their clients they hire only the best and the brightest, using an arbitrary grade cut-off as a proxy.

Some blame society. SUPER LAME: Just because our society is structurally racist doesn’t mean law firms have to be that way. If lawyers in the firm gripe that their minority colleagues don’t belong there, call them out and demand they provide reasoned explanations for their complaints—or maybe just tell them to hit the bricks. Yeah, hit the bricks, pal.

But wait, you say, it’s not conscious racism that’s the major problem, but pernicious unconscious racism that we have to worry about. NOT LAME: Rhode points to an eye-opening study about this. Check this out: A pool of law firm partners were asked to evaluate a legal memo. Half of them were told the memo was written by a white guy and the others were told the author was a black guy. Result: The black guy’s memo received inferior evaluations. What’s new, right?  Persons of color have to deal with unconscious racism in law school—and lots of other places.

Some blame where they’re located, which might not interest lawyers of color. NOT SO LAME: This was a problem I saw when I taught at Iowa. The state of Iowa is so not diverse. Many of my students of color from other states couldn’t fathom living in Iowa after graduation. In many cases, out-of-state students, minorities or not, wanted to return to their home states and towns. Even the native Iowans often took off to other states. The brain-drain problem.

The NALP survey gives us some numbers on the geographic issue. Nothing personal against Kentucky, but let’s compare that state to D.C. The percentage of minority partners in Kentucky is 2.2 percent as compared to 9.07 percent in D.C. The percentage of minority women partners, 0.56 as compared to 3.39. As to associates, minorities in Kentucky firms come in at 12.3 percent as compared to 22.31 in D.C. The percentage of minority women, 6.92 as compared 12.37.

Still, firms have all sorts of ways to incentivize minority grads too join them, even in Iowa and Kentucky, like giving them yachts. How do you think University of Iowa recruited a Chicago Boy like me? I still have the yacht on my bookshelf.

Some blame the difficulty finding the right work/life balance. LAME: Get rid of billable hours, i.e., the number of hours lawyers are expected to bill in a year in pursuit of profit. Because of clients’ demands for lower bills, that will happen eventually. Until then, those who have a life will get shunned. Those that don’t may well become three-times-divorced alcoholics with bad breath and constipation problems.

Let’s get back to that ballroom where about 200 very diverse contract lawyers came together in a pop-up law firm to receive orientation for a huge document review project. Oh, I didn’t mention the trainers for the orientation: large law firms. The trainers were virtually all white, although I was heartened to see lots of women. The partner who showed up to give us the big picture: a white male.

You see, the pop-up law firm was like Gary, the African American who seemed to be leading a good life until we realized he existed in the meta-narrative of a food desert that was a manifestation of racism.

Most of the contract lawyers in the ballroom seemed really happy.

Most of those lawyers wouldn’t have a chance in hell of becoming associates or partners in large law firms.

Wait a second, you say. Did you ever think that many of those contract attorneys might not want to work in a large law firm?? Walking zombies representing evil corporations?? Huh?? Huh??

Put down the Red Bull.

You ask a good question.

Don’t condescend.

Sorry.

Why am I talking to myself?

Anyway, I might be engaging in the same commodification that I just condemned: I don’t care about the minority lawyers as human beings. I just want to see more minority bodies in large law firms.

But wouldn’t we want to live in a world where lawyers of color would have real opportunities to work in Big Law, and choose not to go down that path?

Hmmm…

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