Lawyers are failing at achieving diversity – But, they shouldn’t be!
A few years back, I worked with a law firm that was unwilling to change the way it constituted committees and task-groups. Traditionally, the firm’s leaders identified and unilaterally appointed people to various committees, working groups, and planning coalitions. The leaders would establish a working group or committee, and then decide who could serve on it. While this is hardly unusual within law firms, particularly larger ones, this process generated resentment within the firm and fostered a sense among lawyers—even partners—that they had little say in decision-making and no institutional power. I recommended that the firm try adopting a new, more open process by allowing people to express interest in, volunteer for, and work on extracurricular projects of interest to them. Because this would be a different approach, I recommended they start slowly by identifying a few committees as pilot projects. I met strong resistance. In fact, I can recall a particularly tense meal with a few firm leaders in which they implored me to understand the “uniqueness” of their firm and the fact that my way was going to make people—especially the firm’s powerbrokers—too uncomfortable. They pleaded with me to see the wisdom in their approach. “Be patient,” they said. They even suggested that I was becoming dictatorial, that I just wanted to impose my will and vision on them. Well, that firm, last I checked, is much the same institutionally as it was when I started working with them, except for the fact that their reputation as promoters of diversity, equity, and inclusion in the legal community has suffered, and they have been unable to retain lawyers of color and some White younger women.
You see, the firm leaders wanted a different kind of “change”. They wanted change only on their terms. The change they wanted was a superficial rebranding without organizational reorganization. They wanted to keep doing what they were doing, in much the same way they had been doing it, but they wanted to look better to the public and magically get different and improved results in terms of diversity recruitment, attrition, and retention.
This experience and others like it have long perplexed me. “Doing diversity,” as I like to call it, is rewarding work. Doing diversity means living by and applying values that sustain diverse, inclusive, and equitable spaces. Doing diversity is a necessary ingredient in long-term success in the 21st century with our rapidly changing demographics and markets. And lawyers are failing at it. This shouldn’t and wouldn’t be the case, however, if lawyers applied their professionally developed skills.
I believe that lawyers are perfectly suited for learning how to “do diversity” because they have the training and skills to tackle the prerequisite tasks. This is not to say that law firms, as most currently function, are bastions of diversity or inclusivity. In fact, the institutional foundations upon which our legal system are built are actually anathema to most notions of true diversity and equity. However, the manner in which individuals enter the profession–the way one trains to become a lawyer–is very similar to the way one learns to do diversity. Think about it. Becoming a lawyer means becoming a new person in an old system. It requires a metamorphosis of sorts. Even the way we describe the process of becoming a lawyer uses the language of transformation. You enter law firm a caterpillar and leave it a legal butterfly. Law school is the place where one learns to “think like a lawyer”. Legal training requires learning a new language: “legalese”. The legal profession is a recognized subculture, a fraternal association, within the broader, larger culture. It is not always fondly looked at or referred to, but it is its own community. One comes to the profession initially as a law student, a lay person. One leaves a lawyer, someone who has learned to walk (metaphorically speaking), talk, and think like a lawyer.
This mythologized transformation process (think of the movie Paper Chase) is vastly different from the way we view training in other professions. We don’t talk about thinking like a teacher or an architect or a scientist in the same fashion, even though those professions require mastering unique vocabulary and skills. There are far more shows and movies about medical schools, yet we don’t commonly think of educating doctors as remaking a person into a physician. There isn’t this image of walking through a turnstyle one person and exiting it as another for most other professions. To use a dated and admittedly sexist analogy, there isn’t the same sense that doctors enter the phone booth as Clark Kent medical students and exit as Superman physicians.
The Clark Kent/Superman model is still the prevailing one in legal education. Law schools take the meek, mild-mannered (translation: untutored and unskilled) lay student and supercharge him into an attorney. (I am intentionally using the gendered notion of creating an attorney because modern legal education still tries to reproduce the man-model of lawyer).
Because lawyers are trained to transform, they can be and should be better at doing diversity. Lawyers understand the reality of the drudgery required for long-term success. They are familiar with the necessity to cram a lot of information (some of it seemingly useless) in a relatively short period of time. They understand the need to apply specific remedies to specific problems. And they get that facts and analysis are inextricably bound. Lawyers are trained to function in the real world with real people and real problems. Therefore, lawyers should be the ideal doers of diversity, equity, and inclusion.
After all, the necessary ingredients for diversity, equity, and inclusion (DEI)—history (precedent), language (wordsmithing), and behavior (professional conduct)—are a part of a practicing lawyer’s daily life.
Nonetheless, most lawyers remain resistant to using their learning-style skills to learn how to do diversity. Resultantly, the legal profession is lagging behind others. It continues to be non-inclusive and non-diverse profession. The legal profession in 2020 remains 99% attorneys without disclosed “disability”, 90% heteronormative, more than 85% White, and more than 60% men.
Doing diversity requires living diversity, which requires valuing diversity. However, most lawyers are not trained to do this. The legal education process is a perfect place to institutionalize such training. Lawyers must do better – lawyers must learn to do diversity!