Minority Issues, Women's Issues

Should We Leave The Issue Of Diversity In The Hands Of Biglaw?

Perhaps the answer is for the ranks of the underrepresented in our profession to simply change the model and the profession as a whole.

By Christine A. Rodriguez  
on

The New York City Bar Association recently released its 2016 Diversity benchmarking report. As in previous years, the report indicates that both women and minorities at the law firms that participated in reporting made some progress in their ranks and in leadership positions. Much more notable than the small improvements noted in the report is the fact the progress for people of color and women in law firms is still not significant enough and painfully slow.

The statistics in the report show that every year, more minorities and women join law firms at entry-level positions, but those same statistics show that minorities and women are leaving in greater numbers at senior levels. In 2016, 15.6% of minorities and 14.3% of women left the firms that participated in the report voluntarily. The rates of voluntary attrition for these groups is reportedly 150% and 135% above the 10.6% rate for white men, respectively. The numbers are no better for these groups at the equity partner level. Additionally, though the numbers of women in leadership positions and equity partners at participating law firms has increased in the last decade, those include few, if any, women of color. At the very bottom of most of the statistics are Latina women attorneys, who make up only 0.4% of all partners at participant firms.

There are a variety of reasons that likely attribute to the slow progress and low numbers of women and minority attorneys at the participating firms. One obvious reason for the increasing rate of voluntary attrition at senior levels is likely that these attorneys are not given access to the same opportunities that make their white male counterparts more visible to the decision makers who grant promotions and place attorneys in leadership positions at firms. I could probably cite an abundance of anecdotal accounts of women and minorities at firms who struggled to get good assignments, not for lack of trying or for lack of talent and skills, while watching their male white counterparts receive opportunities that made them shine come promotion time. No matter how hard these attorneys worked, how much they produced, and how well they performed, their portfolio of “achievements” may often be less obviously impressive than their male white peers. This phenomenon has been referred to as “the thin file.”

Someone who has worked tirelessly and performed well, but may have been repeatedly passed over for larger cases, important deals, and received less attention and feedback from their superiors, is often also less likely to be promoted or placed in a leadership position at a large firm. These attorneys are most often women and minorities. These are the attorneys who leave after they don’t make partner and cannot get past a certain level at their firms.

It has been repeatedly suggested that Biglaw and the legal profession as a whole must do better, distribute work in a more equitable manner, and refocus the way they evaluate candidates for advancement in these organizations to increase diversity in the legal profession. That is an aspirational goal, but it has been slow to realize. So, what can we do now to make significant change, ensure that more diverse, well-qualified candidates have meaningful opportunities within their reach, and that fewer leave firms or even the legal profession altogether when they cannot break through that invisible brick wall (trust me, the obstacle is thicker than the “glass ceiling”) that keeps them from getting ahead? Perhaps we should simply change the game and take it out of the hands of Biglaw and rewrite the rules.

Women and minorities alike have been leaving Biglaw and forging their own paths in boutique firms, alternative careers, and businesses in greater numbers. I can point to myself as an example. Nearly 11 years ago, I took a leap of faith and started my own litigation firm. Before that, I was one in the ranks of many who worked really hard, performed well above the average, and was overlooked repeatedly when it came to opportunities to advance and excel. Rather than give up, I forged my own path, and I never looked back. I realize that this is not for everyone. There are many people who cringe at the idea of running their own business and would rather have the comfort of steady employment and benefits. Admittedly, I sometimes fantasize about that as well, but just for a minute or two. But I, and many like me, understand that though we cannot change the old school mentality of large firms, agencies, corporations, and sometimes even the courts, we can take other less traditional opportunities while we make turtle-paced progress. These opportunities may eventually make success at large firms less relevant to the profession in the future as smaller, less traditional firm models take hold and succeed. Perhaps the answer is for the ranks of the underrepresented in our profession to simply change the model and the profession as a whole. Maybe that is the only way that we will finally resolve the diversity issue and make more opportunities for everyone in the profession regardless of race, gender, sexual orientation, or any other category that is underrepresented in the current state of the legal profession.

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Christine A. Rodriguez is of counsel to the firm Balestriere Fariello and successfully represents individuals and small businesses in all manner of employment discrimination, civil rights, criminal defense, civil litigation and commercial litigation matters. She also advises small businesses on all aspects of legal matters from contract to employee issues. She is the Chair of the New York City Bar Association’s Committee on Minorities in the Courts and a member of the Association’s Committee to Enhance Diversity on the Profession, Diversity in the Judiciary Subcommittee and Council on Judicial Administration.

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