Biglaw, Minority Issues, Partner Issues

Diversity In The Legal Profession Has Flatlined Since The Great Recession; Who Is To Blame?

When it comes to diversity, it doesn't just get better; we must make a real and sustained effort.

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sad minority lawyer of color lack of diversity“Confused scholars can’t interpret our scrolls / Your sky has holes / We know the young is old / Nastadamus tells us how the story gets told.”
— Nas

This month, the National Association for Law Placement (NALP) published its NALP 2016 Report on Diversity, based on data collected for the 2016-2017 NALP Directory of Legal Employers (NDLE), its annual compendium of legal employer profiles. The report revealed that “the overall percentage of women associates has decreased more often than not since 2009, and the percentage of Black/African-American associates has declined every year since 2009, except for the small increase in 2016.”

Many fates and fortunes were devastated during our country’s last recession. As for diversity and inclusion, it turns out that any positive trend for diversity in the legal profession would continue to be marginal at best. Whereas the stock market has gone on to recover since the last recession, diversity in the legal profession has basically flatlined since that time. Women and Black/African-American associates have actually witnessed a net-decrease in their representation in the legal profession since the Great Recession:

Minority women and Black/African-American men and women continue to be the least well represented in law firms, at every level, and law firms must double down to make more dramatic headway among these groups most of all.

And, while the relatively high levels of diversity among the summer associate classes is always encouraging, the fact that representation falls off so dramatically for associates, and then again for partners, underscores that retention and promotion remain the primary challenges that law firms face with respect to diversity.  — James Leipold, NALP Executive Director

These patterns look even bleaker at the top. Minority women represent 2.76% of partners, while minority men account for 5.29% of partners, according to the NALP report.

In 2009, Black/African-American lawyers represented 1.71% of law firm partners. Today, Black/African-American lawyers represent 1.81% of partners.

Currently, Asian-Americans and Hispanics make up 3.13% and 2.31% of partners, respectively. Both groups have increased by less than 1% since 2009.

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Many of the solutions and recommendations to increase diversity in the workplace are rather simple ideas, but this does this not mean they will be easy to implement.

In their book The Daily Stoic: 366 Meditations on Wisdom, Perseverance, and the Art of Living (affiliate link), Ryan Holiday and Stephen Hanselman point out that most of us have to do something several times in order to truly learn it. One of the hallmarks of martial arts, military training, and athletic feats of almost any kind are the hours and hours of monotonous practice required to learn how to escape from a chokehold, execute maneuvers, or shoot the perfect jumper. Simply knowing isn’t enough; it must be absorbed. It must become part of us or we risk losing it the second we experience stress or difficulty, according to Holiday and Hanselman.

If law firms treat diversity and inclusion programs only as one-offs or inconsistent initiatives, without truly ingraining them into their cultures and understanding what actually works, then it is likely the next recession will be as devastating to diversity as the last recession. We cannot afford another seven-year setback.

We have access to and have received the data in our profession. But as Charles Duhigg highlights in his book Smarter Faster Better: The Secrets of Being Productive in Life and Business (affiliate link), receiving information is not nearly enough. We must engage with the data instead of passively absorbing it. According to Duhigg, engaging with the data makes it “‘disfluent’ — harder to process at first, but stickier once it [is] really understood…. there’s a difference between finding an answer and understanding what it means.” Is the legal profession currently suffering from “information blindness” — the inability to take advantage of data as it becomes more plentiful?

Where the diversity statistics haven’t fallen since 2009, we have witnessed only incremental increases. So who is to blame for the diversity dilemma in the legal profession? The answer is simple: we all are. Law schools, law firms, and lawyers can all do more to raise the floor.

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Instead of just hoping matters will improve, while watching diversity continue to wither on the vine, we should engage with the data and understand what this means for our profession. We should no longer just trust that improvement will be made. We should become watchmen and watchwomen for diversity. If not us, who? Failing to verify best practices and procedures led us to the ramifications of the last recession. Hopefully we have learned our lesson.

For, as Benjamin Franklin once said, “without continual growth and progress, such words as improvement, achievement, and success have no meaning.”

2016 Report on Diversity in U.S. Law Firms [NALP]
Women and Minorities Make Slow Progress in Filling Ranks at Law Firms [Dealbook / New York Times]

Renwei Chung is the DEI Columnist at Above the Law. He currently serves as a Board Advisor for The Diversity Movement (TDM), whose integrated approach enables law firms to build and strengthen culture by tying real-world business outcomes to DEI initiatives via a scalable subscription-based employee experience platform. And he is excited to host TDM’s and Footnote 4’s new podcast Charge the Wave — focused on entrepreneurs, executives, and icons who are assiduously building companies, cultures, and communities.

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