The Evolving Diversity Conversation

The Evolving Diversity Conversation

The conversation around diversity and inclusion in the legal profession changed over the past several decades. When the principals of SeltzerFontaineLLC entered the legal search profession in the early 1980s, diversity was a topic we brought up to the hiring authorities at major law firms and corporate legal departments rather than the other way around. As a women-owned company, diversity was something that was of great interest to us, so we would initiate that discussion with our clients. I remember walking into a boardroom or conference room of a law firm once and looking around at pictures of all their managing partners going back through time and, of course, they were white men. I thought to myself, “Hmm, I think we need to change this.”

Over time, hiring authorities started coming to us with requests to present diverse candidate pools for their consideration because their clients began pressuring them to diversify their legal teams. Now, they are concerned not only about diversity, but also about inclusion—which is not the same thing.

Diversity is hiring for the numbers, looking at statistics and metrics: how many women, how many people of color, how many LGBTQ+, how many veterans, how many people with disabilities, and so forth. Hiring those non-traditional candidates is like asking a them to join your team. Inclusion is actually making them feel welcome on the team, giving them a real role to play, making them an integral part of the organization, and helping them succeed and advance through that organization. It’s keeping them on the team and letting them play important roles, and maybe even making them captain of the team.

The definition of diversity itself, in the context of lawyer hiring, has changed over the past few decades. When talking about diversity in the 1980s, we were referring almost exclusively to women and people of color. Over time, the definition has grown to include LGBTQ+, people with various levels of disabilities or special need for accommodation, and veterans. A diversity of backgrounds and viewpoints is becoming important, as well.

We’re hearing more from our clients about increasing their diversity hiring because their in-house counsel clients are making it a point to say, “You must have diverse teams, not only in your hiring numbers but also among the attorneys actually participating on our matters.” Some clients even are going as far as demanding to see time sheets and learning not only which attorneys are working on their matters, but also who is getting management and/or origination credit on their deals and cases.

This movement of corporate clients demanding diversity first was formalized in 2004 with the Association of Corporate Counsel’s Call to Action. A number of corporations banded together and asked law firms to sign a pledge to increase their diversity. While that introduced the idea, it didn’t go far enough in affecting real change.

In 2017, which is relatively recent, the ABA passed Resolution 113, which provided forms for corporations to send to law firms so they can see the metrics and more effectively compare apples to apples and oranges to oranges. Thus, the corporate client can more accurately assess which law firms not only have the numbers, but also will put diverse people on their teams. That started to put some teeth into this movement.

Even more recently was the introduction of the Mansfield Rule, which is a take-off of the NFL’s Rooney Rule. The Rooney Rule requires at least one person of color or a from an underrepresented group be included on every panel of candidates being considered for a major role in coaching or team management. The legal profession’s Mansfield Rule, however, requires not just one—but 30 percent—of candidates for significant leadership roles be from an underrepresented group. Major roles for purposes of the Mansfield Rule includes partners, equity partners, lateral partners, practice group heads, and members of the compensation committee and management committee. By late 2019, 64 law firms signed on for Diversity Lab’s Mansfield Certification, promising to abide by the Mansfield Rule which, in its first iteration, applied to females and people color. Now, Mansfield 2.0 includes LGBTQ+ lawyers, and Mansfield 3.0, which is coming up, will include lawyers with disabilities.

In January 2019, more than 200 general counsel and corporate legal officers signed an open letter to big law firms stating that their companies will prioritize their legal spend on those firms that commit to diversity and inclusion. Some companies, such as Novartis and Intel have taken it even further. In February 2020, Novartis AG, the Switzerland-based pharmaceutical company, released preferred panel of global and U.S. law firms with strict diversity and inclusion staffing requirements. And, as of January 2021, Intel will not retain or use any outside law firms in the United States that are average or below average in their diversity. What that means is they want at least 21 percent of their firms’ U.S. equity partners to be women and at least 10 percent to be members of a non-Caucasian race, or self-identified LGBTQ+, or disabled, or veterans.

That’s why the law firms now come to us and say, “Help us hire diverse lawyers at all different levels.” But, the firms must not only hire lawyers from a variety of backgrounds to play on their teams, they also must work on inclusivity in order to keep them there. And, that is a continuing conversation.


Valerie Fontaine
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