Alexandra DeFelice * Minority attorneys continue to depart law firms at a higher rate than those in the majority and continue to be substantially underrepresented at the partner level. With the continued demands of clients and other organizations to improve diversity, law firms need to embrace new and creative solutions.
To address the concern, the California Minority Counsel Program, or CMCP, held an interactive workshop in February for members to brainstorm and develop solutions to specific diversity challenges and share them with their peers. This was a rare occasion for attorneys to be able to discuss real issues they are facing in their firms and to develop a potential road map to success as opposed to listening to a panel discussion followed by the usual Q&A session.
Payne & Fears LLP is a member of CMCP, so our firm had the opportunity to participate in this workshop. Law firm leaders and HR professionals may want to pay particular attention to the suggestions outlined in this article as their firms strive to diversify. The topics can be uncomfortable, but if not addressed, the problem of underrepresentation will continue to spread. Many of these ideas do not cost much in the way of money, but they do require time and commitment to change.
The workshop kicked off with participants closing their eyes and imagining a scenario in which they were driving down the road and suddenly they were approached from behind by a speeding car, flying past them, blaring music. A few moments later, they saw that same speeding car, pulled over by two police officers. One officer was handcuffing one of the two passengers, and the other was holding up a plastic bag.
What color was the car? What type of music was playing? Were there two gray-haired Caucasian ladies in that speeding vehicle? Were both of the police officers Asian women?
To be sure, no two participants had the same answer, but no one said they saw two gray haired Caucasian ladies speeding down the road and two Asian female police officers arresting them.
The purpose of this exercise was to make people aware that they have different perceptions and certain biases that are not intentional or even conscious. When not addressed in a law firm environment, for example, such biases could potentially prevent minority attorneys from moving up in the ranks simply because they do not look or act like existing power brokers within their firms.
This was not a forum to discuss outright discrimination, but rather to address hidden, reflective judgments that shape individual perceptions.
Four Common Types of Bias
Four common types of bias were revealed during the exercise that could weave their way into the workplace. They include:
- Confirmation bias: paying more attention to the things that confirm what you already think;
- Attribution bias: trusting people you know more than those you don’t know;
- Affinity bias: gravitating toward those who are more like you (this could reach beyond gender and race to include age); and
- Availability bias: relying on easily accessible information to make quick decisions.
Participants broke into groups as part of a mini hackathon to come up with solutions to four common law firm challenges: (1) irregular or inconsistent performance feedback; (2) limited access to critical information and social capital; (3) lack of meaningful investment and sponsorship by senior leaders; and (4) limited room to fail.
A few themes emerged: training is critical, business models need to change, potentially even adjusting compensation structures, accountability is needed by both majority and minority lawyers, and addressing the issue can be uncomfortable. The best solutions address systematic and personal issues as well as business reality (Will the firm really implement it?), and they show courage.
1. Irregular and Inconsistent Feedback
Feedback is critical to an employee’s progression. Often, it is primarily received in the form of end-of-year evaluations. While this feedback is important, it provides limited room for meaningful improvement. Because the feedback may be delivered so long after the work assignment was completed, the context for understanding the feedback has passed. Moreover, biases can impact the quality and fairness of evaluations of underrepresented attorneys.
Firms should provide mechanisms for consistent, routine, unbiased and real-time feedback as often as possible to allow for constant course correction and improvement. This includes post assignment and informal feedback.
Train reviewers and incentivize them to take responsibility seriously. Set metrics and expectations. Evaluate the quality of hours if one person is billing significantly more than the other.
Engage additional reviewers to review some work product for consistency. This last suggestion was prompted by a study in which 60 partners were asked to rate a memo from a potential associate candidate. Those who were told the candidate was Caucasian rated the memo a 4.1 out of 5. Those who were told the candidate was black rated the identical memo a 3.2 out of 5.
2. Limited Access to Critical Information and Social Capital
Individuals accelerate their growth in organizations by having access to critical information and social capital, which is often shared by those in leadership positions. Underrepresented attorneys often lack regular access to this information, which stunts their professional growth. This is compounded by the fact that diverse attorneys are not often adequately represented in the leadership ranks of an organization.
For some minority groups, their social networks may not be as advanced. There needs to be structured initiatives to help with softer cultural elements.
Power brokers don’t understand the benefits of diversity. Show them the money, research and numbers.
Look at work assignments and how they are delivered. For example, if a Caucasian associate has 300 hours and a black associate has 80, why is that? Does the black associate need more training or is a senior associate giving all the work to the Caucasian associate?
Find activities that people like to do so they can get exposure to partners. For example, not everyone plays golf and a person could be left out if that is the common activity partners participate in together. Create something like a date night or game night to get to know your colleagues based on interests and form affinity groups to hold discussions and find things you have in common.
3. Lack of Meaningful Investment and Sponsorship by Senior Leaders
Sponsorship occurs when an influential leader within an organization advocates for, protects and proactively develops his or her protégé. Research by The Center for Talent Innovation confirms that professionals with sponsors are 23% more likely than their peers to be promoted.
Firms can create a more equitable workplace by intentionally and mechanically building these sponsorships for underrepresented individuals by fostering sincere and committed advocacy, protection and nurturing of employees by senior leaders.
Sponsors are not like mentors. They put their neck on the line for their sponsees. The process needs to be institutionalized. Consider making volunteer sponsor time billable, with a cap. Encourage sponsors to bring their sponsees with them to client meetings or events.
Track how good a job the sponsors are doing. How much work are the sponsors personally giving their sponsees? How well did their sponsees do? Are they progressing? Advancing to senior associates? This should be included in the compensation formula.
Impediments include getting enough sponsors and initial training on what sponsorship entails.
4. Limited Room to Fail
Failure is critical to growth, innovation and success. For diverse attorneys, however, their underrepresentation puts a spotlight on them, intentionally or not. Under that spotlight, errors are magnified and highlighted and, as a result, underrepresented attorneys are sometimes held to a higher standard.
It is unfortunately common that when diverse attorneys err on a matter, they are much more likely to be written off quickly, rather than given a chance to correct and improve. Firms need to create space for underrepresented attorneys to take risks and try new projects. While this may result in failure, it is critical for growth, innovation, and success.
Many minority attorneys come from disadvantaged communities. They lack a fallback plan and therefore are risk adverse.
Create a safe space for innovative brainstorming about new ideas and processes. No idea is bad. At least get it on the table. Send an agenda in advance and ask folks to come with typed, anonymous ideas. Talk about all of them, then reveal whose idea it was and celebrate the idea and the person who came up with it.
Conduct diversity and inclusion training around people’s cultures and backgrounds. How can firm leaders encourage people to speak out when it normally is uncomfortable for them?
There needs to be a leader in the room to call out anyone in the meeting who gives audible or visible signs of disapproval or disrespect and to make people aware that they are doing that.
It needs to be double-pronged, not just teaching the nonminorities about potential biases, but teaching minorities to assert themselves. Instill confidence and encourage and embolden minority attorneys to be risk takers. Motivate them to be more aggressive through positive reinforcement.
Participants created an acronym for this solution called DESTINI, which stood for Double-Edged Sensitivity Training Including Newer Ideas.
All good solutions have a name, they said, and making diversity and inclusion a part of firm culture is not just the future — it’s our destiny.
All of these ideas may seem overwhelming to firm leaders who are trying to get their hands around best practices when it comes to diversity and inclusion. So what is the best way to follow up on these ideas?
- Call a leadership meeting to go over the ideas that would resonate most with the firm. Remember that the ideas must be embraced and actionable, so not all ideas will work for all firms.
- Hold people accountable at all levels. Diversity and inclusion is a firmwide commitment.
- Appoint someone with ample clout who is comfortable having uncomfortable conversations to lead each initiative.
- Communicate broadly about what you are doing and why. The more you openly discuss diversity and inclusion, including acknowledging the areas in which your firm needs to improve, the more ideas will come to the table.
- If your firm doesn’t already have a diversity and inclusion committee, form one, and make sure that the committee itself is diverse, including not only gender and race, but also age and different departments within the organization. Diversity of thought comes in many shades.
- Consider joining an organization that focuses on diversity and inclusion to get a glimpse into what other firms around the nation are doing in this arena.
- Don’t be afraid to fail. Trying, failing and starting again is better than remaining still.
- Celebrate your success.
*Alexandra DeFelice is the director of marketing and business development at Payne & Fears LLP.
 Additional resources: National Association of Women Lawyers https://www.nawl.org/
California Minority Counsel Program https://cmcp.org/
ABA Minority Counsel Program https://www.jamsadr.com/aba-minority-counsel-program-mcp
Minority Corporate Counsel Association https://www.mcca.com/
Various organizations promoting diversity in the legal profession (compiled by Arizona Women Lawyers) https://awla.clubexpress.com/content.aspx?page_id=22&club_id=143224&modu…. D&I institute https://www.diversityinclusioninstitute.com/
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