Earlier this year, I mentioned a bit about diversity in the profession and promised more on the topic in a later President’s Page article. Amazingly, I have only three more of these articles to write (including this one), so the opportunity to make good on my promise is running out. Like many of you, I too wonder what else there is to be said about the need for, the lack of, the business case for (you get my drift) diversity in the legal profession. But, as an African American woman practicing law for over 20 years, I feel obligated to speak on the topic. Frankly, it could be said that I squandered an opportunity if I don’t share my perspective and thinking on the issue.
If you are still reading, then I suspect you are one who appreciates the importance of a diverse bench and bar. And, many of you have worked in some way to increase and improve our ranks in that regard. So, please know that my intention is not to preach to the choir. But, it is critical that those of us committed to the cause, myself included, not get complacent because the strides we’ve made are not nearly as impressive as we’d like to think. Yet, we can’t throw up our hands because we’ve not moved the needle toward a more diverse profession at a faster clip. Change is damn hard and damn slow and lasting success comes by staying the course.
My goal with this article is to share the statistics so that you know where I’m coming from when I say, “Let’s not get crazy in patting ourselves on the back for all we’ve done to improve the diversity of the bar.” Some of you have worked tirelessly on that front I know, but the numbers are clear we have to press on. And, perhaps more importantly, I want to remind you that after you’ve put in the time and effort to reap the benefit of an increased number of minority lawyers in your firm or legal organization, be mindful of how they are treated, integrated, mentored and evaluated.
Only when the talented minority lawyers at your office are “included” in every sense of the word, will we see lasting change. That is, those lawyers will be more likely to rise through the ranks and become partners, owners, members, supervisors and leaders in our profession. As part of being mindful of how the minority lawyers in your office are being trained, you can’t ignore the impact our implicit and unconscious biases may play in whether those folks are ultimately successfully. I’ll share with you the results of a fascinating research study conducted to detect the impact our implicit and unconscious biases had in evaluating the written work of a new attorney.
Yes, I know you are thinking, “But what about so and so at this firm, so and so at that firm and the new head of such and such?” Those minority lawyers have been very successful. Ask them about their journey! You might be surprised at how difficult they had it rising, perhaps they’d say clawing, up the ranks and into the positions they now enjoy. You might remember an article two of our members wrote back in February about their experiences. Both are African American woman who have done well in their careers. But, neither would tell you it has been easy. If you don’t remember their story, please go back and see what Lonita Baker and Tanisha Hickerson had to share. The experiences they chronicled were not popular sentiments and may have been difficult for some to read, but if you asked 10 of us minority lawyers for our perspectives, I dare say most of us would tell you much the same.
Having practiced for over two decades, I’d certainly like to think that the complexion of the practice of law has changed, and remarkably so, in that time. I graduated from law school in 1994 and spent two years in a federal judicial clerkship. As best as I can tell, including my informal polls of a couple of folks in a position to have better recall than mine, I was the first African American woman to clerk for a judge in the Eastern District of Kentucky. Sadly, I can probably count on one hand the number of African Americans who’ve clerked for a federal district judge in Kentucky since. If you know that I’m wrong, please don’t hesitate to set me straight.
After my clerkship, I joined a firm here in Louisville and was the only African American, and perhaps the only racial or ethnic minority of any sort in the firm’s Louisville office at that time. I’m not speaking ill of that firm. It was a wonderful place and I was incredibly fortunate to have practiced law there. I’m simply speaking to the reality of the lack of diversity in my firm when I started practicing there in 1996. How could the diversity of the law firms and legal organizations in Louisville not have improved since then? Yes, there are a few more minority lawyers around town, but there are also a lot more lawyers practicing in our community now. You can do the math—the percentages are barely better, if at all.
The National Association for Law Placement (NALP), an association of over 2,500 legal career professionals who advise law students, lawyers, law offices and law schools in North America and beyond, is a wealth of statistical information about diversity in the legal profession. NALP’s Directory of Legal Employers includes attorney race/ethnicity and gender information for over 111,000 partners, associates and other lawyers in 1,056 offices, and for nearly 6,300 summer associates in 758 offices across the United States.
In 2009, the percentages of women, minority and minority women lawyers based on NALP data was 32.97 percent, 12.59 percent and 6.33 percent, respectively. In 2014, the numbers had improved slightly to 33.48 percent, 13.83 percent and 6.74 percent in those same categories.
The percentages of women, minority and minority women partners reported by NALP in 2014 was 21.05 percent, 7.33 percent and 2.45 percent, respectively. For associates, the numbers were 44.94 percent, 21.63 percent and 11.51 percent for those same groups. Remember, however, that this data includes such diverse cities as Miami, New York and Los Angeles.
In Kentucky, by contrast, the percentages of women, minorities and minority women partners in the same time period were 19.27 percent, 2.03 percent and 0.81 percent, respectively. For associates, NALP reported the percentages at 45.31 percent, 14.06 percent and 7.29 percent. I’d expect we’d be a little behind the national percentages, but 0.81 percent of minority women partners in Kentucky compared to 2.45 percent nationally only underscores my admonition that we have to stay the course.
I picked on the minority partner numbers because it helps me make my next point. While the raw number of minority attorneys being hired is slowly increasing, those attorneys are not making it from new associate to partnership. We can certainly expect some attrition, but the data would seem to suggest that minority lawyers are not sticking it out or not making it to partnership in any appreciable numbers—particularly here in Kentucky.
Figuring out why may be the key to seeing significantly improved diversity in the profession. How you train, mentor and evaluate the minority lawyers in your office could hold some answers. Remember, minority associates and new lawyers want to be treated the same as the majority lawyers in the office at the same experience level. They want the same quality assignments, the same opportunities for client interaction, and the same constructive criticism and training. I recently read the results of a research study conducted by Nextions, a management consulting firm out of Chicago that showed how our implicit and unconscious biases may be preventing newer minority lawyers from being evaluated in the same way as their majority counterparts.
The highlights of the study are that Nextions, with the help of five partners from five different law firms drafted a research memo from a fictitious third year litigation associate who had attended NYU Law School. The memo purposefully included 22 different errors, ranging from minor spelling errors to more serious errors in the analysis of the facts.
The memo was distributed to 60 partners at 22 different law firms, including 23 women, 37 men, 21 racial/ethnic minorities and 39 Caucasians. All 60 of the partners received the same memo, but half received a memo that stated the associate was African American and the other half understood the associate was white. The 60 lawyers participating in the study, purportedly measuring the “writing competencies of young attorneys,” were asked to edit the memo for all factual, technical and substantive errors. They were also asked to rate the overall quality of the memo on a scale from one to five. Of the 60 partners who received the memo, 53 completed the task. Of those 53 responses, 24 had received the memo by the African American associate and 29 had received the memo by the Caucasian associate.
The results of the study were shocking. The memo believed to have been written by an African American associate averaged a 3.2/5.0 rating while the identical memo from the hypothetical Caucasian associate was rated 4.1/5.0. The qualitative commentary received on the memo allegedly written by an African American was significantly more negative than the other. Some of the comments on the African American’s memo were “needs lots of work,” “can’t believe he went to NYU” and “average at best.” In contrast, the comments on the Caucasian’s memo included “has potential” and “good analytical skills.” More of the 22 errors were found in the African American’s memo than in the one from the white associate.
The study was done in follow up to earlier research done by Nextions and was based on the hypothesis that unconscious bias in a supervising lawyer’s assessment of legal writing would result in a more negative rating if that writing was believed to have been submitted by an African American attorney. The results of the study clearly affirmed the hypothesis. Nextions had a number of suggestions for addressing this kind of unconscious bias in your own organization’s evaluation process. Distribute the study to your colleagues and talk about the findings. Have some of your associates’ written work evaluated without any identifying information included. These are not difficult changes to implement and the improvement in the objectivity and fairness of the evaluation may be profound.
I can’t recount all the details of the research study or all the nuances of the results here, but I commend the full report to you. It can be found HERE. Read it for yourself, share it with your colleagues and be cognizant of how you might be subconsciously slowing your own hard work to improve the diversity of the bar.
