More About Making Partner At Sullivan & Cromwell (Part 1)

Our recent report on the newly elected partners at Sullivan & Cromwell generated some critical reader feedback. We pointed out that the new partner class of five white men was not a model of demographic diversity. But we also, in fairness to the firm, shared some defenses of S&C: (1) over the past 10 years, 16 out of the firm’s 61 new partners, or 26 percent, were women; (2) the New York litigation practice, singled out as “particularly bad” on gender diversity, made three women partners in the past decade; and (3) the firm is “within range” of its peer firms.

These defenses of S&C didn’t go over so well with some of our sources. As one tipster told us:

S&C is lying about women partners in New York litigation. They made two women partners in 2007. Since then, it has been 11 white men and zero women or minorities. They are trying to count Kathleen McArthur from 2015, but she was an associate in D.C., which is not nearly as sexist as New York. Her partnership offer was conditioned on moving to New York…. No current female associate in New York litigation has seen a woman named partner. It’s truly Trump’s America at 125 Broad.

Said a second source:

The statement from Sullivan that three of the six litigator women who were made partner in the New York office in the last 10 years is not entirely true and very misleading. Two female partners were made in the New York office in 2007 (nine years ago). Then last year, one woman was made partner in D.C. (where the majority of her career developed), but was told she had to move to NYC. This move was used to try to limit the outrage by the women associates in New York. It didn’t….

We did some digging into the Kathleen McArthur situation. Sources at the firm reject any claim that she was forced to move back to New York upon making partner, stating that it was her own decision to return. During her years as an associate, she split her time between New York — where she actually started her S&C career, as a summer associate — and Washington. Over the years, she developed an expertise in litigation relating to commodities and derivatives trading, which caused her to spend more and more time in New York, the base of many of her clients. When she made partner, she asked to relocate to New York to reduce her travel time. As a mother of two, McArthur understandably did not want to spend so many hours on trains and planes.

Another encouraging fact about Kathleen McArthur: she was elected partner while working a flex-time schedule. Her oldest child was born in April 2013, and when she returned to work in October 2013 after six months of parental leave, she did so on a part-time schedule. She was still on that part- or flex-time schedule when elected partner in November 2015, near the end of her eighth year at the firm. (She is now back to a full-time schedule, after having her second child and taking another six months of parental leave earlier this year.)

But let’s not let S&C off too easily. According to its website, S&C has around 180 litigators based in New York. Even counting McArthur as a New York partner, making three women partners in litigation in a decade is not exactly impressive. S&C has 38 litigation partners in New York; of those 38, just eight are women (or 21 percent, below the 26 percent representation of women in S&C’s past decade of new partners).

How does S&C compare to its peer firms on gender diversity? Is it “within range” of its fellow Vault 10 firms? Earlier this year, we released Above the Law’s Gender Diversity Index, which gives letter grades to firms based on factors including, but not limited to, the representation of women in the partnership. Here are how the V10 firms stack up (full index here):

1. Cravath, Swaine & Moore: C+
2. Wachtell, Lipton, Rosen & Katz: C
3. Skadden, Arps, Slate, Meagher & Flom: B
4. Sullivan & Cromwell: C+
5. Davis Polk & Wardwell: B-
6. Simpson Thacher & Bartlett: B
7. Latham & Watkins: B-
8. Kirkland & Ellis: C+
9. Cleary Gottlieb Steen & Hamilton: B
10. Gibson Dunn & Crutcher: B-

(Note: The Gender Diversity Index was prepared by my colleagues on Above the Law’s research team. Please direct all questions about the index and its methodology to them, by email: [email protected].)

Sullivan & Cromwell gets a C+, and the median grade for V10 firms is a B-. So S&C is a little behind its peer firms, but not incredibly so — i.e., “within range.” But a grade of C+ is not something to crow about. It would certainly kill your chances of getting hired at SullCrom.

Sadly, this isn’t a new issue for the firm, one source said:

This is a longstanding problem. See Blank v. Sullivan & Cromwell, [litigation in the 1970s when S&C was sued] for gender discrimination in hiring.

(That was a long time ago, so one shouldn’t be too hard on S&C — conduct from decades ago looks very different when measured against today’s standards — but note that the firm sought the recusal of Judge Constance Baker Motley, the first African-American woman appointed to the federal bench. The firm argued that Judge Motley, as an African-American woman who worked on civil rights cases before becoming a judge, “strongly identifies with those who suffer discrimination in employment because of sex or race.” Judge Motley shot that down: “if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.”)

Back to our S&C source:

During the 1990s and 2000s, few women were promoted to partner, and a high percentage of those who were had relationships with male partners at the time of their promotion. The ‘affairs problem,’ as it is known internally, became so bad that in the early 2000s the firm instituted a ‘no dancing’ policy at firm events….

It has always been a place that has struggled with gender. There is extreme sensitivity within the firm to consistently losing women law students to Davis and Simpson, which are perceived (rightly or wrongly) as more woman-friendly. [Former chair H. Rodgin Cohen] tried to make progress on this issue by forming various women’s groups and committees and trying to promote more women. The consensus within the partnership seems to be that these efforts did not work. [Current chair Joseph] Shenker seems to have given up trying. [A different source confirmed this: “Rodge was a champion of women’s programs and trying to make all staff happy. Joe is the opposite, and he ended the mothers’ group, which was one of the more successful women’s mentoring groups we had.”]

The prevailing view seems to be that the firm has a bad reputation with women, and since reputation is hard to change, it is no longer going to play a game it can’t seem to win. This becomes a self-fulfilling prophecy. Some say the lack of recent female partners in New York is a reflection of difficulty recruiting top women from the top law schools. They then feel justified in not promoting more women. One way the firm has tried to avoid the appearance of sexism is to promote women in satellite offices, where there is not as much of a boys’ club mentality.

In short, Sullivan & Cromwell has a long way to go when it comes to achieving gender balance in its partnership ranks. And setting aside the specifics of any particular partnership class or individual partner, the anger that women at S&C feel — anger they have communicated to us here at Above the Law, loud and clear, on multiple occasions — suggests that the firm has work to do when it comes to making women lawyers feel welcome.

So that’s how things look at Sullivan & Cromwell in terms of the partnership prospects of women lawyers. In a subsequent story, we’ll tackle a different issue raised by sources: is S&C stretching out its partnership track, promoting to partner from the ranks of special counsel instead of associates? If you look at the firm’s five new partners, just one was an associate prior to promotion; the other four were special counsel.

If you have thoughts on that topic — or anything else S&C-related (e.g., bonuses, when they’re announced) — please feel free to email us, subject line “Sullivan and Cromwell,” or text us (646-820-8477). Thanks.

UPDATE (9:30 a.m.): Two additional comments, which reflect the divide discussed above between New York and the other offices:

1. From a New York source: “I think the most notable stat is that 20 of the last 21 new partners in New York have been men.”

2. From a non-New York source: “The last four homegrown partners made on the West Coast were all female, two litigators (Diane McGimsey and Laura Oswell) and two General Practice (Sarah Payne and Rita O’Neill). S&C lost a big female New York litigator in Stacey Friedman when she left to become GC of J.P. Morgan’s corporate and investment banking unit [and subsequently rose to become GC of J.P. Morgan Chase as a whole]. Probably also worth taking a look at female representation on the committee compared to peer firms. I fear that your article may dissuade females from joining what is a more female-friendly firm than the article suggests.”

UPDATE (10:05 a.m.): On Kathleen McArthur making partner while on a part-time schedule, one source reports that she worked very, very hard during her “flex-time” period: “Katy McArthur’s pre-partner ‘flex-time’ year was most full-time associates’ billable year from hell.”

UPDATE (3:36 p.m.): From a new source, a Sullivan & Cromwell alum:

The firm’s line on not being able to recruit good female talent is not credible. S&C passed on an Asian woman litigator who came up through New York [a number of years] ago. She is an amazing lawyer, had plenty of experience at trial and had done appeals at the Second Circuit, obscenely organized, and a pleasure to work with. She was promoted to Special Counsel and told that they would consider her for partner in two years. She wasn’t having it and decamped to another firm. It was a big loss for S&C.

[W]hen the firm holds onto certain [problematic] people, it’s not surprising that terrific women lawyers leave after a few years (and after receiving the best possible training a young lawyer could ask for). [A certain white male retired partner] still maintains an active litigation practice and comes to mind as an example of someone who is notorious for his treatment of women (and more generally being a miserable person to work with). Notwithstanding his brilliance, holding on to people like [him] is a tacit endorsement of behavior that is a vestige of a boys’ club from 30 years ago. It is a terrible signal to send.

Don’t get me wrong: I think S&C is an amazing firm with the most capable group of lawyers I have ever worked with. I’m grateful for the opportunity that I had to work there. I think that I am in many ways a better lawyer than many of the people I work with — not because of some innate ability but because S&C (including the miserable partner I alluded to) developed me so well. But after leaving the firm and seeing what it’s like elsewhere, my eyes were really opened up to how things are better elsewhere (although not perfect). Hopefully this comes as a signal to the firm that they should start adapting to a more modern world.

Earlier: Sullivan & Cromwell’s New Partners: Impressive, Yes; Diverse, Not So Much

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David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].