Diversity with corporate law departments has taken center stage of late, or so it seems. In the most recent Corporate Legal Operations Consortium (CLOC) State of the Industry Report on law departments, implementing a Diversity and Inclusion program was the top-ranked issue in the list of priorities for 2021. Anyone who keeps up with developments in law departments would have a hard time missing the plethora of recent articles, statements, and open letters from law departments on the subject. The most discussed move – and then rapid halt – was that of Coca Cola’s (now former) General Counsel Bradley Gayton. In January, while still Coke’s GC, he published an open letter to the company’s outside counsel stating that any law firm seeking to continue to do business with the company had to commit to having at least 30 percent of billed time be from “diverse attorneys,” and at least half of that time be from Black attorneys – only to resign three months later, putting the program on hold.
In truth, Coca-Cola’s demand was just that – a demand. It could hardly be described as a program since it lacked a plan for working with Coke’s law firms to implement changes and achieve the stated requirements. Other law departments described the move as “intriguing” and “inspiring” but did not indicate they would follow suit. It’s not a stretch to infer the letter’s stark demand and its threat of punishment did not go over well and precipitated Gayton’s resignation. It also seems possible, even likely, that his stance lacked the necessary buy-in both internally and from outside counsel. The likelihood of failure to deliver on Coke’s demands might have had some law firms throwing up their hands at the outset, and if so, they must have breathed a sigh of relief when news broke that the program had been shelved indefinitely.
The Coke saga exposes some stark truths. Law departments can continue to make one-sided demands and take an easy, simple approach to try to make an impact. They can also continue to sign letters of intent without concrete actions tied to them. However, they will need to participate in their diversity programs with outside counsel if they really want to see change and positively impact the number of under-represented attorneys working on their matters. Acting as if it’s not their problem begs a key question about achieving diversity and inclusion across the legal industry as a whole. Law firms’ diversity problems are glaring, but some law departments are all too content to focus on their outside attorneys without making sure their own house is in order.
This presents a real opportunity for partnership toward common goals that could move the industry forward. Certainly, law departments should focus intensely on gathering their firm’s DE&I data and analyze it more often so that their outside counsel can course-correct more frequently. Yet, the metrics currently tracked are limited and do not tell the whole story. Collecting the right data is crucial if the industry is to gain an accurate understanding of the problem. Demographic information is important, but it’s not complete when you rely on HR systems and financial data and ignore those categories like people with disabilities and LGBTQ+ individuals, which require some degree of self-disclosure. Moreover, there remains a huge gap in data-gathering around things like mentorship, professional development, client-facing opportunities, value of work, and billing credit. These are critical aspects of effective DE&I programs.
Experience also tells us that law firms aren’t great at measuring inclusion or engagement (if they measure it at all). When diverse attorneys move on from their law firms, it’s rare that the law firm understands what played into that decision. Anonymous surveys that allow attorneys to freely express how inclusive the law firm is and how engaged they feel can serve as an early warning system to alert a firm to brewing problems.
Law firms can look quite different from each other, and when it comes to goals and metrics, one size may not fit all. Law departments and their outside counsel can work together to define what success means. It may look different from one firm to another, given a particular firm’s challenges and trouble areas. Some firms might be quite good at hiring large numbers of diverse new law graduates but failing to retain those Associates due to lack of training or inadequate structured mentoring to keep those Associates on track.
One certainty is that law departments must make sustained efforts and execute long-term strategies if they are to succeed in holding law firms accountable. Progress isn’t as simple as leveling one-sided demands. Law departments should collaborate with their law firms on improving the methods to collect data and ensuring that the right data are collected – all of it. Sometimes uncomfortable conversations are necessary – for example, when metrics involve items like how a firm gives matter credit, origination credit, and assigns diverse attorneys on client relationship teams. But if general counsel remain unsure how their law firms are giving credit and the methods those firms use to ensure promotion and retention of diverse attorneys, progress will be hindered.
The recent focus on DE&I is welcome, but it’s not enough. It’s time to take a more holistic approach to making progress on DE&I. Doing so requires a concerted effort from law departments and their outside counsel, together.
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The recent focus on Diversity, Equity, and Inclusion is welcome, but it’s not enough. It’s time to take a more holistic approach, and doing so requires a concerted effort from law departments and their outside counsel, together.