The Overlooked Importance Of Firm Pro Bono Work

Pro bono work may be justified on its own merits, but pro bono work can contribute to long-term professional diversity too.

Whether a law firm pro bono program can have an impact on that law firm’s diversity efforts is a question for which we may never have an answer. But if any part of the success of diversity programs is built on a firm rolling up its institutional sleeves and doing work in diverse communities, without fanfare, being present and immediate, showing its commitment by its actions, then maybe the answer is not quite so mysterious.

Pro bono work often focuses on two types of clients — those who are low-income and those who are fighting to protect endangered civil or human rights. The pool of clients impacted by poverty and civil rights violations often overlap and often include individuals and communities of color. Without examining the complex relationship between race and poverty, it is plain that poverty rates in many geographical areas are highest in minority communities. It is also plain that those who require the protection of the judicial system to protect their civil rights are those who traditionally are more vulnerable and politically less powerful than majority communities. So, can the work that law firms do through their pro bono programs be a building block in a robust diversity effort?

The statistics that paint a picture of law firm diversity are familiar. Since 2000, minorities in the legal profession have increased by about 1 percent. African Americans make up approximately 1.8 percent of law firm partners, up ever-so-slightly from about 1.7 percent a decade ago. Asian Americans are barely more than 3 percent of partners, Hispanics about 2.3 percent, each having increased by less than 1 percent since 2009. This despite many well-regarded and sincere efforts by many law firms to address the issue. Many have hired diversity officers, put partners in charge of diversity recruiting programs, drafted policies, held trainings, exalted improvements, worked on pipeline possibilities, and more.

The motivation to have a diverse workforce is powerful. As President Obama said in 2016, “Research has shown that diverse groups are more effective at problem-solving than homogeneous groups, and policies that promote diversity and inclusion will enhance our ability to draw from the broadest possible pool of talent, solve our toughest challenges, maximize employee engagement and innovation, and lead by example by setting a high standard for providing access to opportunity to all segments of our society.” Statistics bear this out. Studies by McKinsey & Company and the Boston Consulting Group have demonstrated what firms know intuitively. Companies in the top quartile for racial and ethnic diversity are 35 percent more likely to outperform their industry medians in terms of financial returns. Companies in the top quartile for gender diversity are 15 percent more likely to show financial results that outperform their competitors. For every 1 percent increase in gender diversity, there is a 3 percent increase in revenue. And for every 1 percent increase in racial diversity, there has been a 9 percent gain in revenue. A diverse workforce generally is more innovative, it draws on varied viewpoints, and excels at problem-solving. Clients demand more diversity for these reasons. And, frankly, many agree that diversity reflecting the composition and realities of the communities in which we live and work simply is the right thing to do.

Diversity has been the subject of a significant amount of thought and study. As mentioned, McKinsey & Company and the Boston Consulting Group have authored widely-read reports and made well-considered sets of recommendations. Among the takeaways are the launching of programs to create awareness of implicit stereotypes that can influence hiring, albeit often unconsciously. Changing organizational processes to try to remove biases from decision-making, highlighting positive achievements, taking affirmative steps to ensure that the value of diversity is communicated by trusted firm opinion leaders, supporting employee resource groups, leadership engagement, being clear about who “owns” the diversity efforts, instituting mentorship programs, and tracking and taking advantage of key sponsorship opportunities, are some of the steps that can be implemented and institutionalized.

Among the action items to implement in the diversity sphere, rarely mentioned is the impact of a firm’s pro bono program. Whether having a leading pro bono ethic can significantly impact the recruiting of diverse attorneys, or whether a robust pro bono program can retain diverse attorneys until they become law firm partners, are questions with elusive answers. We certainly know that pro bono work reaches deep into communities that many commercial practices cannot access. If “showing up” in those varied communities, and quietly but effectively being a presence in the face of basic needs can influence a recruit’s decision, then we can add pro bono to the list of diversity-increasing recommendations. But whether that is true, whether it is an influencing factor in choosing employers or affecting longevity, are questions we have yet to answer.

It seems clear that corporate law firm clients are placing more and more emphasis on law firms building diverse teams to work on their matters. Does a strong and direct pro bono presence in diverse communities help law firms hire and retain diverse talent, thereby increasing their chances of prevailing in RFP processes and winning business engagements? While the answers are unclear, and while it may not even be a fair association to make, the representation of diverse clients through pro bono work can have many benefits for a law firm. It helps with professional development, it responds to the passions of the attorneys, and it helps us all answer our profession’s highest calling. But is diversity a tipping point factor in the decision-making of diverse law school graduate recruits? Does it make a difference when a three-to-five year associate is deciding whether to stay at a firm or for those on the cusp of partnership? Does it influence women and ethnically diverse attorneys any more than it influences others?

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A recent study by Deloitte sheds some light on the conundrum. In analyzing the professional arcs of Millennials, Deloitte found that career decisions, including the degree of loyalty to an employer and duration of employment, is significantly influenced by whether the Millennial employee believes the employer shares her/his values. Almost 9 in 10 Millennials believe that business should be measured by more than just profit and should include a businesses’ potential to do good, to be a good community citizen, to volunteer and actively engage. In short, Deloitte found that values are a driving force in where Millennials choose to work and choose to remain. It is not much of a stretch to see the impact that a robust pro bono program can have on this generation of employees.

In addition, we seem to know, with some certainty, that with more diverse law firm partners setting examples and mentoring others, more diverse candidates are likely to be interested. Diversity begets diversity. Being present in diverse communities through a robust pro bono program also sends a powerful message about a firm’s values, with all the importance that such messaging can bring. It then would seem logical to conclude that nurturing diverse pro bono clients can be influential, at least to some. Whether it has a significant impact is something we need to learn. What do you think? Hearing from you is key.


David LashDavid A. Lash serves as Managing Counsel for Pro Bono and Public Interest Services at O’Melveny & Myers LLP. He can be reached at dlash@omm.com. The opinions expressed are his alone.

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