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LegalJanuary 03, 2022

Improving outside counsel diversity is a shared effort

This is a guest blog by Doug Ventola, Managing Director at Consilio.

In August of 2016, the ABA released Resolution 113, which encouraged providers of legal services to expand and create opportunities for diverse attorneys. It also encourages directing a greater percentage of purchased legal services to diverse attorneys.

As a result, many corporate law departments and law firms took the pledge in support of the resolution. For some corporate law departments, it was the catalyst to get them starting to think about how to best measure the diversity of their outside counsel. For others, it validated the importance of diversity reporting that they may already have had in place. But that was over five years ago, and there is still much more work to be done.

One of the challenges that exists for corporate law departments is access to the diversity demographics of their outside counsel. Gender information is more commonly available, but race, sexual orientation, disability, and veteran status are not generally determinable from publicly available resources. As a result, law departments must rely on their law firms to provide diversity demographics of the timekeepers who are performing the work. However, law firms do not always have this information, may not have the permission of the individual timekeepers to share the information, or may have concerns about privacy and how the data is going to be used.

Corporate law departments, on the other hand, have a desire for detailed timekeeper demographics so they can report and understand the diversity profile of their law firms as it relates to them directly. Goals are being set regarding expectations of outside counsel – but if you can’t measure the performance of a firm against your goals, you can’t improve.

Law firms have the responsibility of attracting, recruiting, retaining, and promoting diverse timekeepers. The good news is that there are plenty of diverse attorneys for law firms to recruit – it’s a matter of looking in the right places. And even though it may be easier to attract diverse talent in certain regions with a workforce that is more often working remotely, location is less of a restricting factor. When looking to attract diverse attorneys, firms need to also consider their leadership. If the top of the firm is comprised exclusively of white males, for example, it doesn’t send the message to junior attorneys of other demographics that they can advance.

The reality is that to build a more diverse law firm workforce, there are things that can and should be done by both the corporate law department and the law firm. It is not solely the responsibility of the law firm nor is it something that can be accomplished by the corporate law department without collaboration.

Actions that the law department can take include:

  • Set diverse staffing expectations at all levels. However, you must be flexible with expectations by considering the size of the law firm and the size of the matter. A very small firm may not be able to offer the same level of diversity as a very large firm.
  • If you have experience and satisfaction working with a specific diverse attorney, insist on them working on your matters.
  • If you are bringing work to a firm because of your satisfaction with a diverse attorney, insist that the firm give them origination credit. Origination credit is critical for the appropriate compensation and promotion opportunities.
  • Collect diversity demographics from your law firms so that you can develop the internal reporting that you need to measure your current outside counsel diversity but also track progress. When a law firm timekeeper is set up in your system, require diversity data to be part of that process.
  • For firms that do not want to provide diversity demographics, have the discussions to understand why. Communicate to the firms as to why it’s important to your organization and how not providing the information may impact future business.
  • Clearly communicate expectations and have discussions with your firms when expectations are not met to understand what the firm may be doing to improve diversity over time. Include diversity in your annual law firm review process.
  • Consider other characteristics of a firm when seeking diverse representation. Is the firm Mansfield Certified? Is the firm woman, minority, or LGBTQ+ owned? Does the firm have a written diversity policy?

Actions that the law firm can take include:

  • Collect and share diversity demographics whenever and wherever possible. Request the permission of your timekeepers to share that information with clients when asked to do so.
  • If the top of the law firm lacks diversity, hire some diverse partners. Diversity does not have to be developed from incoming associates. By having strong diversity at all levels, law firms will be better able to attract diverse attorneys and will be better positioned to support their client needs.
  • Be flexible with attorney location when possible. With so much work being done remotely today, it becomes easier to hire talent in a location with more diverse candidates to cover work in a region with fewer diverse candidates.
  • Mentorship programs for diverse attorneys by diverse attorneys.
  • Affinity groups to help create an inclusive environment.
  • Ensure that origination credit is properly and fairly allocated. Just because a partner brought in a client 30 years ago does not mean that the client is continuing to come to the firm because of him/her/them. Frustration with unfair origination credit allocation makes it difficult to retain talent.

It is encouraging to see the progress with law departments and law firms working together with the goal of advancing diversity. Commitment, measurement, follow-through, and follow-up are yielding measurable improvement.

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