In my inaugural glog post (glog is my definition of guest blog post, I alluded to the issue of diversity and suggested that, in addition to driving change related to alternative fees, in-house counsel had the power (or at least some power) to drive change in this regard as well.

In late January, I had the honor of sitting on a panel about affinity groups and diversity initiatives in California with two fellow panelists (Macey Russell and Tiffani Lee). I qualified not only because I am a woman, but because I co-founded and ran the women’s initiative in my former BigLaw firm from 2004 – 2008, and in 2008, formed an organization in Chicago called the Coalition of Women’s Initiatives in Law Firms (Coalition for short) which now boasts 35 member firms and more than 80 firm delegates. The Coalition provides a forum to share  best practices, training, programming and policy ideas with the women running their own firm’s initiatives. It’s an effort to address issues collaboratively rather than individually (the old “power in numbers” and “why reinvent the wheel” adages).

Although “diversity” has taken a distant back seat to survival within law firms these days — not because it’s a puzzle that has been solved, but rather, because when profits per partner fall, everything else takes a distant back seat– I was struck by a question that came from a participant in the session, as well as by others not in attendance, but who joined in a discussion afterwards — how can you tell whether firms are really committed to or are actually making progress with diversity? How do we distinguish window dressing from real change?  For what it’s worth, here are my 2 cents on what is going on behind the diversity curtain:

1. To borrow a phrase from Justice Potter in Jacobellis v. Ohio, it is difficult to define what a commitment to diversity means, but “I know it when I see it.”  Among other things, it includes: (a)  affinity groups and diversity initiatives that are driven by the attorneys, not mandated by marketing or management; (b) creative programming designed to address issues that the affinity members themselves think are important; and (3) real measurement of things that matter like percentage of work done by minorities and women on matters for the firm’s top 10 clients by revenue or the top 10 revenue-generating matters by department.  It is also (4) evidence of shifting associates or partners around in an effort to capture greater diversity on even the firm’s most important matters.

2. It’s the hard evidence.  Numbers.  And specific numbers.  It’s not just the percentage of minority/women partners — it’s the percentage of minority/women EQUITY partners that matters.  Allowing firms to hide behind laudable numbers showing 20-25%  women and/or minority partners ignores the fact that in reality, among the equity partnership, the numbers are usually in the dismal single digits. The NALP, American Lawyer and other organizations who gather or utilize data from law firms but do not insist on a breakdown of equity and non-equity status are simply perpetuating the fallacy that great strides are being made at every level.  Remember – non-equity partners are not factored into the venerable “profit per partners” equation and are, like associates, mere overhead. 

3. Rather than asking for the number of minority and women partners or associates on key firm committees — ask about the number of DIFFERENT minorities and women serving on DIFFERENT key committees.  In other words, if there are 5 key committees and  the same 3 women and  2 minority partners serve on all of them — saying there are 25 minorities/women on key committees may be technically accurate, but disingenuous at best. 

4.  In BigLaw, it’s all about revenue generated and hours billed. Speaking from experience — and yes, this will draw the ire of many, and admittedly, this is a generalization —  women and men with families or significant outside commitments or interests are disproportionately negatively impacted by the measurement of hours billed, since the typical efficiency that emerges when trying to juggle work and other responsibilities is not only not valued in the law firm context, but it is penalized, as  more efficiency = less hours billed = less revenue generated for the firm (even if those same efficient hours got a winning result for the client). 

There are a whole host of studies and explanations as to why women and minorities, regardless of drive, success in practice and intelligence, are not as successful at developing business as their white male counterparts, and I won’t even attempt to get into those here (see one of my favorite articles relating to women). 

What Can You Do? Suffice it to say that if you are an in-house lawyer and you really want to make change and strides for women and minorities — (a) demand accountability and breakdowns of the number of hours spent by diverse attorneys and women on all of  your matters (and demand to see it on every bill) and (b) seek out and directly give x percentage of your work to women and minority attorneys.  Note, please, that I am not saying to give it to someone who isn’t qualified — I am simply saying, broaden your horizon when it comes to evaluating qualified recipients so that women and minorities are included in the mix on a regular basis.