The Digital Edge

Attaining Law Firm Diversity

As the demographics that make up our society continue to shift, the question of diversity in the legal profession continues to grow in prominence. How would an increase in diversity benefit law firms and what can attorneys do to promote that change within the profession? In this episode of The Digital Edge, hosts Sharon Nelson and Jim Calloway talk with KM Advisors, LLC Managing Director John Mitchell about the difference between diversity and inclusion, diversity fatigue, and factors within the industry that might hinder the advancement of diverse lawyers.

John “The Purple Coach” Mitchell is managing director of KM Advisors, LLC in Chicago. He spends his days supporting and advising leaders of law firms and legal departments as they navigate a constantly changing marketplace.

Special thanks to our sponsors, ServeNowCloudMask, and Scorpion.

View transcript

The Digital Edge

Attaining Law Firm Diversity

09/19/2016

[Music]

Intro: Welcome to ‘The Digital Edge’ with Sharon Nelson and Jim Calloway, your hosts, both legal technologists, authors and lecturers invite industry professionals to discuss a new topic related to lawyers and technology. You are listening to Legal Talk Network.

Sharon Nelson: Welcome to the 105th edition of ‘The Digital Edge: Lawyers and Technology’. We are glad to have you with us. I am Sharon Nelson, President of Sensei Enterprises.

Jim Calloway: And I am Jim Calloway, Director of the Oklahoma Bar Association’s Management Assistance Program. Today, our topic is ‘Attaining Diversity in Law Firms’.

Sharon Nelson: Before we get started, we would like to thank our sponsors. Thanks to our sponsor, Scorpion, which delivers award-winning law firm web design and online marketing programs to get you more cases. Scorpion has helped thousands of law firms just like yours attract new cases and grow their practices. For more information visit  HYPERLINK “http://www.scorpionlegal.com/podcast” scorpionlegal.com/podcast.

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Jim Calloway: We are very pleased to have as our guest, John Mitchell. John “The Purple Coach” Mitchell is Managing Director of KM Advisors, LLC in Chicago. He spends his days supporting and advising leaders of law firms and legal departments as they navigate a constantly changing marketplace. Thanks for joining us today, John.

John Mitchell: Thanks Jim. It’s a pleasure to be here, I am glad that you and Sharon given me this opportunity and I am looking forward to our conversation.

Sharon Nelson: Well terrific. We will get started by asking you what seems to be practically an age-old question at this point. Why is it taking so long to attain diversity in law firms and somewhere in your answer, can you explain the difference between diversity and inclusion, because that seems to confuse a lot of folks?

John Mitchell: Absolutely, I am happy to do that. I think that the challenge to creating diversity in law firms arises from a fundamental problem that we have in the legal profession and that is that most of the professions’ current leaders really saw the profession as a profession not as a business. And so, what you might see as a business imperative somewhere else is not really seen as one in the legal profession, so most law firm leaders and managers don’t see diversity as a priority. It’s simply not a business imperative for them and therefore there is not a lot of effort being made to drive changes in our diversity in the profession. And that leads to — I think an important distinction Sharon that you just mentioned and that’s the difference between diversity and inclusion.

Diversity is essentially a numbers game, so how many women do we have in the law firm, how many Asian attorneys do we have, how many Black attorneys do we have and so forth, and that is the idea that we can count diversity and that tells us how we’re doing.

Inclusion is a little bit different. Inclusion is the idea that everyone who is in that organization feels welcomed in that organization, has opportunities in that organization to grow and to prosper. And so, some of the diversity consultants who are out there like to talk about diversity as being invited to your college reunion or to the big dance let’s say, and that inclusion is actually then being invited to actually go out on the dance floor and dance.

So it’s not enough to simply be in the room, the idea of inclusion is you have opportunities to grow, to prosper and to thrive in that environment, the same opportunities that other people with the majority in that group might have. Is that helpful?

Sharon Nelson: Yes, very helpful, and I could not have given those definitions, so thank you.

Jim Calloway: We are beginning to hear now about diversity fatigue; is diversity fatigue a real phenomenon, and if so, how do we combat it?

John Mitchell: I think diversity fatigue is a real phenomenon, and I think it comes about in a couple of different ways. So first think about medium to large law firms as an example. They often have a chief diversity officer, and diversity fatigue for this person is something that’s different than it is for the lawyers in those firms.

So if you are a diversity professional in a law firm of any size, one of the things you are constantly doing is trying to fight what you see as the good fight, to try to get people to change their behavior so that their environments become much more inclusive.

(00:05:03)

For most diversity professionals it’s really clear on two levels why diversity is important. It’s the right thing to do, so on a moral perspective most diversity officers believe that, and also there is a business imperative. There is a lot of research that shows that diverse teams tend to do better.

Now unfortunately it’s not — they don’t do better because you just throw a diverse group of people together, they do better when you manage that process well, and that takes a lot of time and a lot of effort and a lot of law firms aren’t really willing to do that.

So from the diversity professionals’ view the fatigue is really a form of burnout, they are trying, they are trying, they are trying, they are doing everything they can to fight that good fight, and frankly 9 days out of 10, they are not moving the needle much at all, if at all and that can be very tiring and frustrating for those folks. So I think that that’s one form of diversity fatigue that we see.

The more common expression of diversity fatigue is really for the lawyers in the firm who have perhaps participated in a diversity workshop, or something like that, and then the firm decides we haven’t done enough or one of our big client is beating us up, we need to do more. We are going to have another workshop and then we’re going to send you to training off-site, and then we’re going to do this program with our associates to make them love us even more.

And what happens is you end up with folks in the firm who are very skeptical to begin with, and they quickly fall into cynicism because they believe the programs aren’t really designed to accomplish the creation of a more inclusive environment. They think that many of their firm leaders are simply paying lip service, and therefore they wonder, what’s the reason that I want to participate in this?

And frankly, there is another element as well that comes into play and that’s a concern over a fear. If we do all this, is there going to be a change, and if there is a change is it going to negatively impact me? And so, this cycle just starts to repeat itself with the diversity professionals push hard, push hard, push hard and don’t move the needle and are frustrated and the folks in the firm feel like, okay, it’s one more thing, it’s one more thing, it’s one more thing, it’s not really designed to create change, and both sides of this conversation end up feeling skeptical, end up feeling a little bit worn out and actually feel like we are having the same conversation over and over and over again. What’s the point? It’s not getting us anywhere. That’s really how I see diversity fatigue, and I think it’s a huge problem.

Sharon Nelson: Well, I would certainly agree with that and it seems to me it’s gotten stronger over the years, which is most unfortunate.

One of the things I see helping to attain diversity is clients driving law firms to attain diversity and I see that especially where as you say there are numbers of diverse lawyers, but they are not necessarily being used or perhaps they don’t show up in the courtroom, or they show up the courtroom but don’t seem to do anything. So what are the ways in which clients are really insisting that their law firms become diverse?

John Mitchell: This has been one of the more interesting developments in the last decade and-a-half, probably the clients really starting to drive a lot more of the effort in the legal profession to make it more diverse and in particular in private law firms to make them more diverse.

And there is a couple of things that are causing this, and before I talk about what clients are specifically doing with law firms, let’s just take a little bit of a look back at the bigger picture about the reason clients are doing this.

So I said earlier that it’s not really a business priority for most law firms to think about diversity and inclusion, they don’t see it as a business imperative. On the other hand, a lot of client organizations see it as an absolute imperative. We live in a time where in the United States in our lifetime there will be no majority group. I think the current statistics say by about the year 2042 there will be no specific majority group. So lots and lots of diverse people on all kinds of bases and figuring out how do you sell to those people, it’s what all of these companies are trying to do. They are selling a product, they are selling a service, and they are trying to sell it to as many folks as they can in their target market, and those folks typically are diverse, and as a result those companies are constantly trying to make their own operations more diverse from their employees, to the way they market, to the way they advertise, to the way they hire, everything is focused on trying to reach their target market. And as a result they are saying to their law firms you do a lot of work for us, you’re very visible, you are a huge part of our spend every year, and we want you to also be more diverse.

And so, they are using two primary methods; one is a carrot and one is a stick. There is a very large retailer for instance that became famous for using a stick early on in this conversation, and the retailer went out and told all of its law firms, you’ve got about two years to start to figure this out. Here’s what we’re looking for in terms of diversity from our firms. We need to start getting there, and by the way, at the end of this period if you are not there you’re probably going to lose our business.

(00:10:00)

This is a retailer with billions of dollars of legal spend, it got a lot of people’s attention, and what it also got was a lot of pushback, lot of the firms are really, really upset and said, who are you to tell us how to run our business?

As we have moved forward in time from those early days there still are a number of companies that are using a stick approach, you do it this way or you don’t get our business, and as I talked with GC, it’s interesting, there are many who believe that for the law firms they just don’t get it and therefore the stick approach is really the best approach.

Fortunately, there’s other GCs who are using a combination of carrots and sticks and the carrot approach I think has the best chance of creating some of the change with at least more enlightened law firm leaders.

So one of the things that you’re seeing out there right now are companies that will promise a certain amount of business to a firm if it gets more diverse. They will promise a lead role for diverse attorneys from that law firm on some of that client’s most significant matters. And as we all know, in a law firm your power is really derived from the business that you bring in and the status of the types of matters that you work on. And so, one of the things that the clients are doing is they are looking at the law firm saying, we understand your environment and we’re going to incent you to provide opportunities for diverse lawyers that may not be getting those opportunities so they can develop business and so they can work on high-profile matters. And so, those are couple of examples of what clients are doing right now and I think what we’re going to see is this is going to continue to grow.

I was facilitating a roundtable conversation with some in-house folks out in Arizona last year, what was fascinating is the room was almost evenly split between in-house lawyers who said, we’re going to start telling our law firms, they have to do better, and actually telling them who gets credit for our work and the other groups saying, well, we’re not going to tell them that, we’re going to hint pretty strongly that that’s where we are headed.

I suspect if we fast-forward five years from now, a lot more of Corporate America is going to be telling their law firms who they think should be giving credit for the work, and as we all know that’s a hot-button issue in most law firms.

Jim Calloway: John, you mentioned having a Chief Diversity Officer or other staff person dedicated to diversity but what other things are law firm leaders doing to achieve diversity?

John Mitchell: That’s a great question, Jim, because often times people think that having a Chief Diversity Officer is the answer and it’s not. If you look at the largest firms in the country they have Chief Diversity Officers and a significant staff and they’re not moving the needle anymore than a much smaller firm might be.

I think that what’s really important is that there are a lot of law firm leaders who are trying to experiment and figure things out and find a way to help their firms become more diverse and some of them are doing it simply to respond a pressure from their clients, others are doing it because they believe in it, again for the moral reason or because they get the business case, but either way, they have a personal belief and so they’re trying to drive some of those changes.

Some fascinating things are going on. There are some firms that are starting to experiment with a blind resume screening process, meaning, I don’t know the name of the person on this resume. So I don’t have a bias, my own implicit bias for somebody’s name which sounds like mine and perhaps an implicit bias against somebody who has a name I find strange or difficult to pronounce, and that’s something that some social science research has shown provides very different outcomes and opportunities for people if it’s a blind review of a resume. So that’s one example of something that some of the firms are doing.

A lot of firms are actually trying to identify people early on in their career who were diverse attorneys and saying, we’re going to focus on creating opportunities that you might not otherwise get so that we can have a more diverse base of partners who are succeeding, because what they also know is, if you have that more diverse base you are more likely to attract the talent who say, oh, I like this law firm because they have people who look like me or think like me or talk like me or whatever the diverse characteristic happens to be.

I think this is one of the most interesting things that’s happening right now in the world of diversity and inclusion is looking at all the little experiments that are going on all across the country and frankly in other countries as well, and hopefully at some point some of the researchers pull some of these experiments together and share some of the information about what seems like it has been making an impact and what seems like perhaps it has not been making that much of an impact. So that everybody can learn from these experiments and hopefully at least the people who are committed to change can figure out, okay, this is something that works, I want to do more of that.

Sharon Nelson: John, do you think that the law firm leaders have a genuine real commitment to making their firm diverse or are they talking the talk versus walking the walk? I know there’s been a lot of a people coming down on both sides of that question.

John Mitchell: I think that there are law firm leaders who are very committed to making their firms much more diverse and they do what they can to walk the walk.

(00:15:00)

Now what is important to understand is that some of these law firm leaders have developed a very good sense of self, a level of self-awareness and understand where some of their implicit bias lies and what they’re doing is they haven’t changed themselves, they still have that bias. What they’re doing is trying to figure out how do I manage it?

So as an example there’s a law firm leader who I interviewed for an article who told me that he had significantly changed the number of women who were being promoted in his large international law firm, and this is somebody was not known for being a champion of women and I said, so, tell me how you made that happen? That’s not been your reputation. What is it that made this possible? He said, very simply, he realized he wasn’t putting women’s names on the list of nominees for high-level committees within the firm, and he just put a post-it on his computer that reminded to him he needed to make sure that every slate that he put forward had at least some women on it. He started to do that, and guess what, some of those women started to get picked and it changed the dynamics in this very large international law firm. So sometimes it could be something that simple that can make it happen and create change.

I do think Sharon that you’re right that those folks who are cynical about this probably have a right to be. If you look at the profession as a whole, we really haven’t come very far in 40 years, in fact, in some areas we’ve gone backwards and that’s obviously disappointing and disheartening, and I think there are a lot of people who are just trying to figure out – or lawyers, we wanted them to try to figure out is if there’s a rule how do I get around that rule? So in this case if there’s a client demand that we create a more diverse law firm how do I game that system so that the client is happy with me, but I get to run my business the way I want to run my law firm. So I think there are a lot of lawyers who are very cynical about it and aren’t really putting forth an effort.

The good news is with each generation I see more-and-more lawyers who seem to be very focused on trying to create a much more inclusive environment in their law firm, and that does give me some hope.

Sharon Nelson: Good.

Jim Calloway: We’re glad to hear that. Today every photograph shared by a major law firm is very careful to show diversity. Is that just for public consumption and also is there truth to that there’s still a ceiling for many diverse lawyers?

John Mitchell: There is a ceiling and it’s an unfortunate one. I was just reading a statistic that said that 85% of diverse women lawyers leave the profession within seven years, that’s pretty sobering. So that’s diverse women leaving the profession within seven years. They’re not leaving because they want to go have a child, they’re not leaving because they decided they suddenly don’t like the law anymore, they’re leaving because they don’t feel like to have the opportunities or they’re not getting the opportunities and they read the writing on the wall and say, we’re not going to succeed here. So I think there is truth to that statement.

In terms of the photo, I just want to share a quick story with you about that photo. It’s not just the firm’s photo it’s also who the firm’s take on pitches when they go to see their clients.

I was talking with an associate in Washington DC, young Black woman who is having a particularly bad day and I was in a conference room with some other associates at this firm and she was listening to the other — her colleagues talk about how to get ahead in the law firm and she cited she had a better plan and she said, I’m going to go in and tell the partners that I should be given credit for significant portion of the firm’s existing new client business, and all of the colleagues looked at her and said who the heck are you, why do you think you should get credit? And she said, my picture in my bio is on every pitch package that has gone out since I got to this law firm and I’ve been on at least half the pitches the firm is made even for work that I wouldn’t be qualified to do. So if I’m that important to how the firm gets business from these clients then I should be that important and get credit for that work and the way we get credit in a law firm is through the book of business.

I laughed, cautioned her, she probably wouldn’t advance her career, she marched into the managing partner’s office and said that, I share the story though because it’s not the first time I’ve heard that story and I know there’s a thousand young lawyers out there who have a similar story to share and it’s a story of extreme frustration.

Jim Calloway: John, that’s certainly an interesting story. Let’s take a brief pause now to hear from our sponsors.

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Welcome back to ‘The Digital Edge’ on Legal Talk Network. Today our subject is ‘Attaining Diversity in Law Firms’ and our guest is John “The Purple Coach” Mitchell, who is the Managing Director of KM Advisors, LLC in Chicago.

John, I certainly want to ask you why you call yourself “The Purple Coach”, so that’s my initial question followed by do you think things are better or worse for diverse lawyers in small firms and why?

John Mitchell: Well, Sharon, “The Purple Coach” story is literally a three-minute story, so if it’s okay, I think I need to pass on that one. I’d love to share it, but I know we are tied on time.

Sharon Nelson: Okay, all right, I’ll get you later.

John Mitchell: Thank you. In terms of whether things are better or worse for diverse lawyers in small firms, I did some research and preparation for this conversation and I couldn’t find anything that was specific enough but I felt like there was good data that suggested it is better in a small firm could and it might be in a large firm.

That said there is some research about the impact of leaders that suggest that the opportunities could be greater to create an inclusive environment in a small firm with less opportunity than it would be in a very large firm, and the reason for that is a strong leader can make a big difference in any organization and when we are talking about creating a more inclusive environment like we are talking about right now, that’s a big culture change. And culture changes take lots of time, lots of effort, usually a period of years to really make a significant difference.

So a strong leader who is personally committed has a much better chance of moving the needle in a smaller firm simply because it takes less time to change that culture than it would if you were in a firm of a thousand and more lawyers.

Jim Calloway: How do you suggest that the law firm seriously implement diversity? Do they need a plan in a way to measure their results?

John Mitchell: Jim, this is I think the $64 million question. I think that the biggest thing that needs to happen for law firms to really start to create a much more inclusive environment is to get more lawyers understanding business. And I know lots of lawyers have a business card that says, attorney and counselor at law and they talk about advising their clients on business issues. The reality is, most lawyers in more firms if they’re not involved in day-to-day management of their firm, don’t really understand how their firm makes money. And if you listen to GCs, it’s going to tell you that even the ones involved in for management often don’t understand how the clients make money. They don’t understand the clients’ business.

And that’s a fundamental challenge because all of these GCs who are pushing to create more diverse legal departments and more diverse law firms, they are not doing it because it’s the right thing to do, some of them believe that. That’s not the reason though why they’re pushing so hard. They are doing it because it makes good business sense. It aligns with their strategic business priorities. That’s something that has to change if we are going to see a change in the legal profession in my opinion.

So if you have a plan, yes, it’s a good thing. Put it in writing, have a way to measure results, I think all of that is really important, but until we get more lawyers understanding that there are some business reasons to change attitudes, to change behaviors, and to change beliefs, I don’t think we are going to move the needle, in the last four years it says we are not.

Sharon Nelson: Well, I wonder if there is a role for the ABA in moving the needle and helping the profession become more diverse, what do you think, John?

John Mitchell: I really think there is. The American Bar Association is the largest professional association of lawyers in the United States. And in my opinion it needs to take a strong leadership role in this area, and unfortunately, I don’t think the ABA is doing it. It has had a lot of turmoil on staffing in terms of looking at their Chief Diversity Officer in other roles in that department.

If you look at the staffing in the American Bar Association itself, is very diverse. When we are at an administrative level, it is not nearly as diverse at the more senior leadership levels when we are talking about people who are employed by the American Bar Association.

I think the ABA needs to talk about how it is going to fix its own house as a way of leading the profession rather than helping and telling the rest of the profession what it needs to do to become more diverse.

(00:25:08)

There are a lot of great diversity professionals working in the American Bar Association, unfortunately most of them are not even close to the senior levels of that organization and I think that limits their ability to help create change. I think it’s a huge problem for the profession that the ABA is not playing a stronger role.

Jim Calloway: Well, we have a few ABA people who listen to our podcast so maybe you’ll get that message sent through that medium.

John, what are your final thoughts on where we are today compared to the past and where we will be in the next five to ten years?

John Mitchell: As I said earlier we haven’t really moved the needle very much at all as profession and that is very, very disheartening. I don’t think we are likely to move the needle anytime soon. I don’t think my recommendation that more lawyers learn about business is likely to happen anytime soon, and that suggests that if I’m correct in my theory here that the profession really isn’t going to change. That’s sad as somebody who is a diverse lawyer himself.

That said, I actually think there is going to be massive change in diversity inclusion in the legal profession. It’s not going to happen though because law firms decide to change. It’s going to happen because all sorts of alternative legal providers who are out there right now taking business away from law firms see the world differently and behave differently and sell differently, and they are going to create change.

And when we have some of the things that the lawyers in the United States believe will never happen, like ownership of a law firm by someone who is not a practicing lawyer, when that stage does come and believe me it is going to come. I don’t think you need to worry about some of these other companies out there that are talking about this. You just have to look at a company like Deloitte who already has more lawyers than most big law firms have as you look across their business across the world. They are going to go after the big law firms. All these alternative survivors or providers are going to go after the medium and smaller firms.

And I think that if you are solo, you might be okay in this, maybe, for a little while. Everybody else, you better start thinking about your next job, and I think that’s where we are going to see the greatest change in creating diversity in the legal profession, it is the profession itself, I think it’s on the cusp of being disrupted and I think that disruption is going to lead into this type of change.

Sharon Nelson: Well, I heard the sound of AGIA team dropping there, John, and I agree with you, I think it’s coming and I think it will devastate some people who refuse change because there’s change that’s coming whether we want it or don’t want it and your comments today about attaining diversity, they certainly were very insightful. Great stories, I think that this is something that we need more of in CLE and that our listeners are going to be delighted to have heard your wonderful comments about this and your thoughts about how to attain a diversity in the legal profession.

I am sorry that it’s as dismal as it is, but I remain ever Rebecca of Sunnybrook Farm, so I will remain optimistic. Thank you so much for joining us today, John, it was great.

John Mitchell: Well, Jim and Sharon, thank you for having me. I appreciate that and I hope that we all can continue to be Rebecca of Sunnybrook Farm and stay positive, because if we don’t stay positive, for sure no change is going to happen. So it’s been my pleasure, thank you.

Sharon Nelson: That does it for this edition of ‘The Digital Edge: Lawyers and Technology’. And remember, you can subscribe to all the editions of this podcast at  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com or in iTunes, and if you enjoyed our podcast, please write us on iTunes.

Jim Calloway: Thanks for joining us. Good bye, Ms. Sharon.

Sharon Nelson: Happy trails, cowboy.

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