Law Firm Diversity Management: Migrating to More Meaningful Models
By Andi Cullins (August 2008, Professional Development Quarterly)

Over the past ten years, law firms have struggled – with varying degrees of success –to become more diverse institutions. For most, the goal is still elusive as the complexity of the problem makes the solutions non-instinctive. Under increasing scrutiny from clients(1), where women and minorities have begun to make headway in the corporate counsel’s suite, law firms have tried to grapple with the challenge in a variety of ways.

What has emerged are a number of models; indeed, some firms have migrated from one format to another over time. Looking at the evolution of these models in terms of their pros and cons can help us to see where the trend is headed and why the role of Diversity Director (2) is emerging. Finally, a case study illustrates one firm’s recent deliberations and decisions in filling such a position.

According to proprietary research commissioned by The New York Times and published in 2003 (3), companies that branded themselves as "diversity friendly" had a competitive advantage in the recruiting marketplace. Consider these findings:

Among job seekers:

• Most job seekers (91 percent) said that diversity programs make an organization a better place to work.
• Nearly all minority candidates (97 percent) would rather work in a diverse workplace than not. A company's image is critical to attracting minority candidates: 65 percent of minority candidates said that an organization's reputation for supporting workplace diversity was an important factor in their decisions of where to apply.

Among recruiters:

1. Minority candidates are in great demand: 67 percent of recruiters were actively involved in diversity recruiting.

Accordingly, law firms responded with what was instinctive. One early approach was to identify a woman or person of color to act as a focal point for the firm’s diversity efforts.

Model 1: The Diversity Associate

As most firms had few women or minorities among the partnership ranks, the role of diversity coordinator often fell to an associate. Most frequently the associate was expected to continue to produce billable hours, tending to diversity issues in addition to his or her regular work. Even today 64% of all attorneys involved in their firm’s diversity efforts receive no billing credit at all for these activities. (4)

This model fulfilled the need to show prospective candidates that there were people in the firm who “looked like them,” but that aspect alone was not enough to keep minority and female associates at the firm. It ignored other major issues: lack of role models and mentors, lack of quality assignments, and lack of advancement potential for the newly recruited associates. At some firms, this arrangement also allowed the disengagement of partners and firm management in supporting diversity initiatives.

As a search firm involved in the placement of attorneys, The McCormick Group often hears unfiltered comments from candidates seeking to change jobs. Early into the evolutionary cycle, we began to hear second- and third year minority associates tell us that, after being recruited heavily, they were ignored by partners; were not given substantive work; and had no mentors, role models, or champions within the firm. By the third year these associates were swimming upstream and drowning. Their answer was often to leave the firm, ideally moving to the corporate side where these problems were perceived to be less prevalent.

A benchmarking survey conducted by NALP (5) indicates that this trend has continued. According to the report, women attorneys leave their firms at an almost 10% higher rate than men during the mid-level associate years, and minority lawyers leave at increasingly larger percentages as seniority mounts. The attrition rate for minority lawyers at the senior associate level is 39.1% versus 31.7% as compared to their Caucasian counterparts, and more than twice the frequency, 34.4% vs. 15%, at the Counsel level.

At the same time, we began to hear from the mid-level and senior associates who had been placed into the diversity champion role. As recently as May 2008, a minority associate at a Women’s Bar Association conference in Washington, D.C., lamented that her role as diversity manager was “ineffective.” She reported holding events in the firm to raise awareness only to have the partners completely blow them off. “The only people who come,” she said, “are the ones [minority lawyers] who don’t need it.”

Without the clout of partnership, and without the weight of the management or executive committee, these efforts were marginally successful at best; and that success was confined largely to recruitment. Firms that still employ this model may find first year hires are often achievable, but the churn at the mid- to senior-associate level is likely to continue.

Model 2: The Diversity Committee

At some firms that had no minority presence at all, the initial response was the diversity committee approach. Under this model, partners (perhaps including women, but generally white males) were tapped to form and serve on diversity committees. As in the associate-based model, partners on the diversity committee were typically expected to carry fully the responsibility for practice development and billable hours, usually without much modification on time demands, as well as to carry out the diversity task force function.

While this model attempted to send a clear message regarding the importance of diversity from the top, many of the issues present under the associate-based model persisted under this model. In fact, some firms without minority presence at all found it increasingly difficult to recruit any minority attorneys, as candidates often favored firms where there was at least some affinity group versus being the “only one.” Those who were targets of our lateral recruiting efforts for these firms frequently told us they preferred to stay in firms where they had an existing comfort level. Some phrased it as staying were they were already known and no longer had to “prove themselves” [among their nonminority peers]. More tenured partners told us they had already fought the fights of being the only one at their current firms. They could see no advantage in going to a new firm to do it all over again.

These partners also clearly understood that a lateral move to a firm with no minority presence at the upper echelon brought with it the added responsibility of stepping into a diversity leadership role. Again, in most instances, stepping into the diversity role meant more work with no relief in the demand for billable hours and practice development. They were committed to being role models and mentors for those coming behind them; but, as with most practicing attorneys, their focus of choice was developing their law practice.

Model 3: The Diversity Partner

Firms who have women and minority partners have frequently tapped those individuals to step into the diversity management role, either leading the effort or sitting on the diversity committee. For a time, the most prevalent law firm model was the formulation of a diversity committee along with the identification of a female or minority partner to head the effort and tend to the day-to-day implementation of programs.

Assigning such a partner to the lead role appeared to answer many of the needs left unaddressed in other models. It provided instant credibility to young associates regarding the involvement of the partners in the diversity effort, and it provided role models and potential mentors. As partners, these individuals had sufficient clout to move programs and agendas forward. Finally, it served to signal to potential female or minority partner candidates that the firm was a good place to work; there were peers there.

What suffers in this model is again the diversity partner’s billable hours. As recently as spring of 2008, when the Minority Corporate Counsel Association and the Association of Law Firm Diversity Professionals conducted a joint survey of Am-Law 200 firms, only 20% of all responding firms gave billing credit for diversity activities, and only 13% gave full credit. (6) A separate survey compiled this year by Altman Weil found that 44% of the diversity managers who are also lawyers balance their duties with an active law practice (65% of that number have billable hours requirements as high as 1,500 to 2,000 annually). (7)

Regardless of how committed the partners in question might be to the value of diversity or the concept of responsibility to others, most eventually have to make a decision: to practice law or to practice diversity management. Some have chosen to move squarely into the diversity management role (34% of those currently in the role are non-practicing attorneys). (8) Others decided to focus the majority of their efforts on the practice of law and confined their commitment to participation on the firm’s diversity committee over the more dedicated central role of diversity management.

Firms using this model still had varying degrees of success. It became apparent to some that, while there was benefit in this model, there was also a good deal of unexplored territory to conquer. Trained as lawyers, individuals taking on this role eventually learned there was real substance needed to propel successful diversity programs through the firm. Those moving into the role needed real grounding in organizational development, program development, conflict resolution, and other areas not necessarily found in a law school curriculum.

Turnover numbers among women and minorities, especially at the mid-level associate ranks, continue to be well above that of white males at most firms. Firms reasonably asked themselves if the problem was intractable or if it needed another approach.

A New Paradigm – Acknowledgment of the Professional

The law firms’ corporate clients were making the case for diversity quite clear. On its corporate website, Chubb, one of the nation’s largest casualty insurers, lists a diversity statement that has become typical of modern corporate thinking:

“Those who perceive diversity as exclusively a moral imperative or societal goal are missing the larger point. Workforce diversity needs to be viewed as a competitive advantage and a business opportunity.”

Even as far back as the 2003 New York Times study, it was noted that “while just over half of the hiring managers in the study considered workplace diversity to be of benefit to a company's business performance, an even higher percentage of hiring managers at the companies with diversity programs said this.” (9) So, while the business imperative couldn’t be clearer, workable solutions still seemed to elude most larger firms.

Those firms willing to consider a different approach are now moving to the Diversity Professional model. Of the 89 Am-Law 200 law firms responding affirmatively to the MCCA/ALFDP survey as having a diversity professional, 74% have created the position in the last three years. Of these diversity professionals, 59% were hired from outside of the firm. (10)

Going outside of the firm is often required to get the experience base necessary: Firms who decide not to spend time reinventing the wheel, but to learn from those who have been successful in other venues, are more likely to find answers with real impact. Although law firms can be a bit unique in their structure, and the challenges inherent in those differences can present a bit of a learning curve, a professional who already possesses the necessary skills but who needs to learn the environment can prove to be more productive than the other way around.

Non-Lawyer Model vs. Non-Biller Lawyer Model

2008 saw an increase in the overall number of firms employing a director of diversity. While some firms have brought in non-lawyer diversity professionals, according to the MCCA/ALFDP study only about 21% of the current diversity directors do not have a JD. Conversely, 69% of those in the position now hold a JD degree, but of that number only 34% are non-practicing attorneys, and less than 5% are now practicing attorneys who are exempted from billable hours requirements.

Much like they did when creating the law firm Professional Development Director, Marketing Director, HR Director, and Executive Director roles, firms are beginning to recognize the value of bringing professional expertise into the diversity area. These diversity professionals work along with the standing diversity committees and executive committees in the same way their director level counterparts do -- addressing policy, strategy, and tactics. The goal is to help firms move to more effective strategies not only to recruit but to maintain a diverse team of professionals that maximizes opportunities for the firm.

Finnegan – A Case Study in Getting It Right

When Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, one of the market leaders in intellectual property law, decided to hire a Director of Diversity, the move put the 350-attorney firm on the leading edge of a trend. This is how they got there.

Finnegan’s reputation in its field makes it one of the go-to firms for young lawyers of any gender or ethnicity who want to practice intellectual property law. That is not to say the firm had an easier task than other law firms in recruiting and maintaining a diverse attorney group. The highly technical and scientific backgrounds of those who enter IP law has historically attracted fewer women and minorities than might be found among the general population of newly-minted lawyers each year.

But Finnegan’s reputation gives it a drawing power that did make it a bit easier to gain access to a more diverse pool of summer and first-year candidates. Layer on top of that a Diversity Partner, HR Director, and Director of Recruiting all committed to the ideal, an environment of respect for diversity, and an understanding by partners in key positions that diversity is important; and the result was an entering class in 2007 that was almost 30% female or minority.

But Finnegan wasn’t satisfied with that. They recognized that, as at many other firms, the ranks of women and minorities began to thin during the march to partnership; and they were determined to do what they could to stem that tide.

At the same time, the firm was beginning to get questionnaires from clients and organizations wanting to know about its formal diversity programs. The message of the business case for diversity was becoming apparent.

Management at the firm embraced the idea that it was time to migrate from its existing diversity model – a full-time practicing partner who happened to be a minority -- to a new model featuring a dedicated professional in the diversity world. It’s important to note here that the partner fulfilling the diversity role was one of the major champions of the change. He’d stepped into the diversity role out of a sense of commitment to the initiative and to the firm but found that, over time, the position required the attention of a fulltime professional.

In some ways being an IP firm moved Finnegan faster and farther down the track than it may have first intended. As The McCormick Group began to approach partners at other firms about taking on the role, it became clear that those who were most experienced with moving a law firm forward on diversity issues and those who were experienced IP attorneys were groups without a great deal of overlap. Truth be told, there weren’t many practicing (non-IP) attorneys who were willing to step entirely away from the practice of law to take on the diversity role at a firm where they knew they could never practice at all; in other words, they preferred to go to a place where they could keep their options open. It was back to the drawing board.

What emerged next set the firm on the path to the right decision. With the weight of the management team behind it, Finnegan decided it was more important to have someone who could impact the diversity issue in real and meaningful ways than it was to have another IP attorney. It made a clear and affirmative decision on the importance of putting a true diversity professional into the role.

The firm held discussions among the major stakeholders on where the position would report and set up pathways to access the managing partner and the chairman of the firm. They sought and interviewed only candidates with extensive credentials in diversity management issues and who had track records of program development and change management.

And, while they were willing to talk with diversity professionals who were non-lawyers, they were ultimately persuaded that the JD credential would be an advantage because the firm’s lawyers would see the new director as a peer.

Critical issues

Finnegan addressed four critical issues in this process:

1. They understood the business case for diversity. Firm management recognized the business and economic drivers. They saw diversity as something that was important to everyone in the firm – not just other minority lawyers.

2. There was support from the top of the firm. The management team fully supported the idea of bringing in a committed professional. They were prepared to communicate the importance of the initiative throughout the partnership and made sure there was clear access for the director of diversity to firm management.

3. They understood the need to focus on more than just hiring. An acknowledgment that it was necessary to look beyond the initial phase of recruitment and focus on the long range objective of retention was a critical factor. Retention is a much more complicated issue than hiring.

4. They were willing to acknowledge the need for a specialized professional. Recognizing the complexity of the issues helped to lead them to the decision to hire an experienced diversity professional. They decided it was worth the investment to hire someone who wouldn’t need to spend time reinventing the diversity wheel but who had dealt successfully with the issues they were facing.

In the end, Finnegan hired a veteran diversity professional who is not only a JD, but also holds a masters degree in organizational development and has a background in consulting on a range of diversity and human capital issues.

What it looks like now:
Surveys from MCCA and Altman Weil provide a statistical look at the role of Diversity Professional in Am-Law 200 firms today. Altman reported that virtually every firm that responded to its inquiry now has a formal diversity committee.

1. 58% have a designated diversity manager or director, up 8% from 2007, and 13% from fall 2005.
2. 79% of these diversity managers are lawyers in their firms, compared to 67% in 2007 and 57% in 2005.
3. 53% of diversity managers hold the position fulltime, down from 61% in 2007.
4. 54% of Diversity professionals have less then 5 years of paid diversity experience.
5. 36% have more than 10 years of unpaid diversity experience.
6. Almost all have dual reporting responsibility, including sitting on the firm’s diversity committee. 64% sit on the committee, 15% chair it.
7. 50% report to the managing partner.
8. 25% report to the Exec. Director.
9. 88% are female. 62% are African American, 8% are Hispanic, 5% are Asian, 21% are Caucasian.

Andi Cullins is a Principal at The McCormick Group, a national executive search firm. She specializes in partner placement, organizational development consulting, diversity management training, and diversity recruiting. Andi thanks Tom Jenkins, Chairman of Finnegan, for his permission to cite the firm in this article. Andi can be reached at acullins@tmg-dc.com or www.mccormickgroup.com.

Reprinted with permission from PROFESSIONAL DEVELOPMENT QUARTERLY.
The author of this article is permitted to reproduce and distribute it without limitation, including republication elsewhere. Copyright © 2008 Evelyn Gaye Mara. Address subscriptions and correspondence to Professional Development Services, P.O. Box 150306, Alexandria, VA 22315-9998, (703) 719- 7030, maraeg@profdev.com.

1 In 2004, Sara Lee’s general counsel, Rod Palmore, issued A Call to Action aimed at increasing diversity in the legal profession. By December of that year, Sara Lee was joined by 72 major corporations who began to ask their law firms for accountability on diversity practices within the firms. Today, many major corporations as well as the Minority Corporate Counsel Association regularly ask law firms to reveal their diversity policies and efforts. http://www.cmcp.org/FileLib/9/cr_handouts.pdf.
2 We have used the title Director of Diversity to signify any diversity professional who is responsible for strategy, formulation and implementation of firm-wide diversity programs. We acknowledge that various law firms use various titles to describe similar positions in the professional management field. Some firms opt to title these individuals as Chief while others use Director.
3 Jason Forsythe, “Creating a culture of inclusion.” September 14, 2003 in The Boston Globe Magazine and The New York Times Magazine. http://www.boston.com/jobs/diversity/092003/div_0903_2.shtml
4 MCCA/ALFDP 2008 Law Firm Diversity Professional Survey, Minority Corporate Counsel Association. http://alfdp.com/clientimages/42560/
2008finaldiversityprofessionalsurveyexecutivesummary052308.doc.
5 National Association for Law Placement, 2006 Benchmarking Report, New York City Bar Association. http://www.abcny.org/Diversity/FirmBenchmarking06.pdf
6 MCCA/ALFDP 2008 Law Firm Diversity Professional Survey.
7 “Flash Survey on the Diversity Director Position, Altman Weil.” American Bar Association, Law Practice Magazine, June 2008. http://www.abanet.org/lpm/magazine/articles/v34/is4/pg34.shtml.
8 MCCA/ALFDP 2008 Law Firm Diversity Professional Survey.
9 70%, according to Jason Forsythe in “Creating a culture of inclusion.”
10 MCCA/ALFDP 2008 Law Firm Diversity Professional Survey.