The Many, Many Obstacles To Biglaw Diversity

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

The Many, Many Obstacles To Biglaw Diversity

09/10/2019

 

[Music]

 

Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

 

[Music]

 

Joe Patrice: Greetings to another edition of Thinking Like a Lawyer. I changed up my intro there because it’s a slightly different line up today. So I am Joe Patrice from Above the Law, and with me is Kathryn Rubino from Above the Law because Elie could not be here. So she is playing the role of Elie today.

 

Kathryn Rubino: I play it just as well as he does.

 

Joe Patrice: Yeah, there you go, yeah. So I mean you need to speak up a little bit.

 

Kathryn Rubino: I need to start screaming is what you are trying to tell me.

 

Joe Patrice: Yeah, that’s what I was saying, but no. So we are here today because Elie couldn’t be with us, he is ill, and we hope him a speedy recovery from whatever it was.

 

Kathryn Rubino: I think he said Ebola and typhus.

 

Joe Patrice: He said Ebola?

 

Kathryn Rubino: He actually said both Ebola and typhus in various communications today.

 

Joe Patrice: Interesting, okay, yeah, so.

 

Kathryn Rubino: I did read an article like literally yesterday that typhus is actually making a comeback in America, which is just terrifying.

 

Joe Patrice: Yeah. So on that cheery note, so what really are we planning to talk about today, because we had to do some quick change up of what the plan was. Longtime listeners know there is rarely a plan, so you understand that was a lie, but if there was anyone new joining us, we didn’t want to spoil it for them.

 

Kathryn Rubino: Yeah. I mean, well, listen, it’s your show, I am here to talk about whatever, but there were some diversity rankings and such that came out last week, I thought we might want to chit chat about that a little bit.

 

Joe Patrice: Yeah, I think that’s right.

 

Kathryn Rubino: Yeah. So for those of you who may not be familiar with the Mansfield Rule, it’s a project started by the Diversity Lab and what it does is it allows big law firms or law firms in general to become Mansfield certified and they become certified when 30% of the candidates that they consider for promotion, for leadership roles at the firm, that kind of stuff are diverse candidates.

 

They currently look at gender diversity, racial diversity and LGBTQ+ folks. In next year’s ranking they will also consider and talk about disability diversity as well. But this year we have 64 firms that have been Mansfield certified compared to — which is the second year of the ranking, which is pretty good; last year there were 41 firms that were certified.

 

And a hefty percentage of those 64 firms are actually Mansfield certified Plus, which means that there is actually 30% or more of diverse candidates in a bunch of different metrics in terms of leadership.

 

But I mean I don’t know what you think about the Mansfield Rule generally, but my sense from talking and thinking about diversity in firms for quite a while now is that it’s a good thing, it’s certainly a good thing, nothing bad about it. But I am not sure that it’s a — I am not sure that it’s a magic bullet that’s going to change the industry.

 

Joe Patrice: Yeah. I mean this goes back to some of the discussion that was prompted after Paul, Weiss released their list of new partners, which was a perfectly fine list, but it was accompanied by a picture that showed it was a bunch of white guys and one white woman. And diversity was present there. There were a number of LGBTQ people on that list, but it isn’t shown in that image, and it’s more the image that sparked criticism than even who got promoted. And I tried to make that clear when we wrote about it.

 

But in the aftermath of that there was a lot of discussion of how law firm diversity efforts operate, and Paul, Weiss actually is one of the leaders recognized by — Microsoft, for instance, does a roundup of the attorneys they work with that they feel are doing the best on diversity efforts and Paul, Weiss is always a leader on that.

 

But one of the issues that then the New York Times explored, questioned whether this was right, there has been some push back from Paul, Weiss about how accurate this article was. But one argument made in the article was that these sorts of rules have created situations that make it harder for people to actually move up, because you end up in a situation where diverse lawyers are put on teams, but only for the sake of satisfying these rules, which mean they end up always being on teams rather than leading things and that that causes a problem.

 

(00:04:53)

 

And the argument also was that there is a bottlenecking at the mentor level that happens as a few people move up and are always there, they are asked to take on as mentors tons of other people and folks fall through the cracks, which was an interesting argument about how diversity efforts have to be thought out more than just a superficial level, which I would think is a thing we should have all hoped would be where we end up.

 

But it’s a question of whether or not the Mansfield Rule, while a good first step, may actually be one of those superficial first steps that shouldn’t be the end all of the discussion.

 

Kathryn Rubino: For sure, and I recently did a podcast with Andrea Kramer and Al Harris, who wrote a book about ‘It’s Not You It’s the Workplace’ about gender discrimination in the workplace, and one of the things they said about the Mansfield Rule was that it’s great, but it needs to be much bigger.

 

We need to be thinking about diversity, not just when we are talking about promoting to partner or figuring out who is going to be the managing partner of a law firm, but rather when we are doing summer associate hiring, kind of start it from the very beginning, because you are going to wind up in situations like Paul, Weiss found themselves last year, where in that particular year there is just not a lot of diversity when they are trying to make those partnership jump and what are you going to do if you didn’t hire in the first instance.

 

Joe Patrice: Or at least diverse diversity in that instance; there were different vectors of diversity and they only kind of had one.

 

Kathryn Rubino: Yeah. And I think that that’s actually something — and the Mansfield Rule and the Diversity Lab is really working on improving the rule every year and changing it and making it more responsive to I think what the industry needs and what it’s looking for.

 

And this year was the second year they added the LGBTQ+ component to it, next year they are adding disability, but also there is a pilot program that five firms have signed on for where they are going to be tracking and looking at all of that 30% rule, but in all of the different categories.

 

So right now if you had 30% were LGBTQ, then you would satisfy the rule, but you may have zero ethnically or racially diverse candidates that you are looking at. And so this kind of much more strict version of the program that they are starting to investigate would look at how many, in each of these categories, how much gender diversity do you have, how many LGBTQ people are you interviewing, how many racially diverse candidates are you considering, how many disability diverse candidates are you considering for each of these promotions and other things, which I think that is certainly much more difficult to achieve, but is also I think incredibly important when we are really trying to figure out what the legal profession will look like in 10, 20 years from now.

 

Joe Patrice: Yeah. And one quirk of it that a recent article pointed out was that the way origination credit works has created something of a siloing effect within firms, and so even as these in-house departments, which have really been leading on a lot of this push, for good reason, in-house departments are part of corporate America which has felt the pressure to do more for diversity much longer than law firms have, and so these in-house departments working very hard have demanded more diversity on the outside counsel teams that they employ.

 

The problem is it’s starting to create situations in these, according to this article, where there is a little bit more siloing of the people who fit and become a team that only works on these cases, because that’s what this client demands and so on, which is kind of defeating the purpose of the whole effort.

 

Kathryn Rubino: And let’s be clear, origination credit is probably a screwed up way for all of your compensation to come from, right? I know that’s kind of how law firms have done it since time immemorial, but that doesn’t necessarily make it a good thing.

 

One of the things that Law.com pointed out in that article is that frequently in-house counsel will have contacts that they deal with every day, when they actually have asked to see who gets the origination credit for their work, it’s someone that they have never actually met, because once you get that client in the door, all the rest of the — whether or not you are relevant or whether or not that client even cares about you anymore, they are still getting the origination credit as long as you are at that firm.

 

Joe Patrice: So a white male partner may have brought the client in originally, they now demand a more diverse team, they only work with this diverse team that is kind of the day-to-day, this is the 10 people they work with in order to satisfy those rules, but at the end of the day the person who is getting the largest paycheck remains the white guy who brought in the client in the first place.

 

Kathryn Rubino: Right, which — I mean I think that right now we have a very robust lateral partner market and I think that that is something that’s part of it, right, which is when partners, whatever, any kind of partner feels like they are doing the majority of the work for a client, the majority of the service and are not getting the lion’s share of the payday for that work, then there is motivation potentially to move and to go somewhere where they can get the credit for that client that would potentially move with them, and I think that’s part of the reason why you see so much movement in that market.

 

(00:10:11)

 

Joe Patrice: Yeah. And this is a difficult thing for us to report on always because we don’t really — it’s hard to see inside the inner workings of a law firm because we’re —

 

Kathryn Rubino: We do not work there.

 

Joe Patrice: We do not work there, but it’s also that unlike Corporate America this is not a company that has to make public filings and for this reason, it’s hard sometimes to tell what’s going on within these firms, but we occasionally hear from tipsters which is the only way we get news really so —

 

Kathryn Rubino: [email protected].

 

Joe Patrice: Correct. Send things there. We hear sometimes stories and it’s hard to confirm and so on which is why even if we don’t report on them don’t to lose faith, we’re still logging them we just can’t do much.

 

Kathryn Rubino: And also tips are super important for us to track trends within the industry.

 

Joe Patrice: Correct. And we keep them anonymous, so we can’t really report on things without getting them a lot more confirmation. But it’s not unusual for me to hear from tipsters that XYZ firm, check out their office in, insert city here, Dallas let’s say, check out their Dallas office and if you go over a long enough timeline you’ll see that eight female partners have left over the last three years or something like that. And those are the sorts of things that you can’t necessarily see in the plot point, but you can really understand when you take a step back and somebody’s telling you.

 

Sometimes these firms’ laterals, some lateral moves a lot of good firms will send out the press release saying oh, we picked up this person from somewhere. Others they go unnoticed and so, these movements unless you’re set up something to track every firm’s website every day, you’re not going to see some of this movement. You’re looking at me without saying anything, so I’ll move on from that I guess. Wow. You’re just freezing up in a weird, weird way.

 

Kathryn Rubino: I’m not freezing up I just, I think that diversity in law firms is not something that’s going to be solved anytime soon and I think that there’s a lots of reasons for that. I also think that more diverse people and women tend to opt out of law firm life at a certain point.

 

There was a recent study about – it was in a report about women bread, women lawyers who are breadwinners. I did a podcast about it and one of the data points they had there was that less than something like half of women who are senior associates are looking forward to the prospect of being partner, whereas like for men, it’s like 80% or something like that.

 

I don’t remember the exact numbers, but sort of the enthusiasm to become a partner was much higher amongst men than it is women and part of it’s because of the increased expectations. The feeling that it’s not going actually get better maybe you’ll make a little bit more money especially as a junior partner or non-equity partner.

 

Oftentimes, you don’t make more money or make slightly more money not as much as the amount of time you have to dedicate to being a partner. And it’s not something, they have a lot of other pressures on them and other responsibilities and being a partner is not that brass ring that everyone is going for anymore.

 

Joe Patrice: And that’s an excellent point the de-accreditation process. The way in which we have several firms who set it up where you’re a “partner”, but you really aren’t a partner, you are a higher paid employee and that puts all the pressure that used to be a junior partnership with none of the leverage of saying that you actually own a stake of the institution. That is a huge problem, but it’s also one that that kind of triggers.

 

If you are in that position, the blessing is that you get to have the title partner even if that isn’t what you’re making and you can use that to market yourself and build out business and so on. But now that’s more on you, you now have to become something of the free agent utilizing that not just doing your legal work that you have to do is a what would be a junior partner, but also considering lateral markets, considering a building books outside of the pre-established platforms business. In order to try and fight your way to a point where you can get there and I do think that you’re right, I can understand how that would be a less attractive prospect these days.

 

Kathryn Rubino: Especially, oftentimes when a lot of times women are also responsible for the majority of their home responsibilities as well, so you’re just kind of it’s just bad on top of worse. I mean one of the other things you’re saying too is about how a lot of this pressure is coming from in-house lawyers and from clients to increase diversity on teams, but let’s also be clear that it’s not great in Corporate America.

 

(00:14:58)

 

Whether or not they felt the pressure is for longer, everything’s not great. I mean, there was a recent study about general counsel pay trends, which said that the pay gap for general counsels at Fortune 500 companies is actually getting worse.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: For the last couple of years when they did the study the pay gap between men and women has been about 11% and now it’s 8, this year it was 18.6%.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: So it’s not really getting better and obviously all these companies are making these payment decisions on based on individuals that they’re hiring or promoting or whatnot. So it’s not saying that any one person is doing a bad job per se, but when you look at trends and you look at the overall market and the fact that it had been pretty steady at 11% for a few years and now has jumped to over 18% is not encouraging.

 

Joe Patrice: Yeah. No it’s definitely a trend that seems as though it’s a step backwards. One would hope though that over time, one thing about little blips like that is we do have to wonder if that is a blip or if it’s actually part of the trend and we’ll — so we’re going to have to wait another couple of years to see if this returns to the norm or gets better.

 

Because one would think that it would get better over time, it’s not like these efforts are going to result in women running legal departments of Fortune 500 companies tomorrow but they begin a career path that puts them in a position eight, nine, ten years down the road to be considered for those sorts of roles. So, one would hope that we’re over a long enough time line moving in a different direction.

 

One issue that comes up and came up today in an article is ranking systems and we have several of them of various ranges of quality from pay to play; hey, I’m a mega lawyer because I paid mega lawyer to name me a mega lawyer.

 

Two institutions actually take the time to consider lawyers and their portfolios to determine if they deserve certain accolades, our colleague in arms Vivia Chen wrote an article over at American Lawyer about how chambers actually disproportionately at least if you looked at the population, honors men with a lot of their accolades for leadership in the field. Now, part of that is of course diversity efforts are relatively young and therefore elderly partners are —

 

Kathryn Rubino: More likely to be.

 

Joe Patrice: Yeah more likely to be —

 

Kathryn Rubino: Just a gesture.

 

Joe Patrice: Yeah. But is there something to that and some reason why these ranking institutions should start pulling back and considering the future trends. Especially, well let’s just say that, is there an obligation upon these rankings institutions to put thumbs on the scale to make sure that they’re giving proper accolades to more diverse sets of lawyers.

 

Kathryn Rubino: I mean, I think of course. But I’m not one that has to be convinced about the value and necessity for diversity in pretty much every aspect of the legal profession, but I think that there’s this myth of some pure meritocracy that exists in the country and world, but in particular in the legal profession that well, we’re just talking about the really great people, whoever they are they are and if it’s just a bunch of white men so be it.

 

And I think that that is incredibly naïve and short-sighted way to look at who’s accomplished in the legal profession or any profession frankly, and I do think that a well-rounded meaningful set of rankings will absolutely include things like diversity when they’re making those determinations, because a diverse set of — if these are our top ranked lawyers and our thing, you should want them to be a diverse set.

 

Joe Patrice: Right. And what I’d argue with that is additionally, you’ve got to step back in any sort of endeavor, it’s important to take a step back and understand why you’re engaged in it. It’s a thing with this podcast we never do, why are we even talking, but with real issues, you just take a step back and you say what’s the purpose of a ranking system and theoretically, the ranking system is there to inform clients on who they should be hiring.

 

If you believe that that is what the ranking system is for then there is no logic to this just give it to the same people always, especially in an era where more and more of these in-house institutions are looking for more diversity in who they bring on as outside counsel. If that’s the mandate that’s out there then a ranking system that is doing its job for the client which is the companies out there trying to look up a lawyer they have an obligation to be giving more credit to folks who could fulfill those corporate missions.

 

(00:20:05)

 

Because if the company is looking to hire all the diverse lawyer, then the ranking system should show them, here are diverse lawyers who are actually experts in the fields that you are interested in.

 

Kathryn Rubino: Yeah, I mean, it makes a lot of sense to me.

 

Joe Patrice: But to your point you are like you were very polite about like the — which does isn’t how this podcast operates, but you were very polite about the oh, there is some myth of meritocracy, no they are whining people.

 

Kathryn Rubino: It’s a lie meritocracy.

 

Joe Patrice: Yeah, there is whining people who like — well but I did Mike, he is like sure, but that’s not what people are trying to hire, the clients are looking for different kinds of lawyers now and to that extent, these ranking institutions have an obligation to show you what is out there that’s different, anyway. So that’s the rankings discussion I would like to think unless you have something else to say.

 

Kathryn Rubino: No that was pretty good.

 

Joe Patrice: So where do our favorite punching, arguably our favorite punching bag around here. Where do law schools fit in to this equation, what can they be doing better.

 

Kathryn Rubino: I mean law schools are not doing an awful job in terms of the pipeline, at least if you are looking at legal academia, legal education generally, for a while now, more than half of the starting 1Ls have been woman, right. They are doing better and better every year on other measures of diversity as well.

 

I don’t think that as an institution they are doing a terrible job but I am not sure that they are doing, and this is just kind of a criticism about legal education generally, preparing them for what it’s like to be a lawyer, I mean law school doesn’t really prepare you to be a lawyer in a lot of ways, right.

 

But I think to that distinction between what you learn and how you have to be in law school to BigLaw for example is even more stark for some more disenfranchised population that it might be for people who have been privileged their entire lives.

 

Joe Patrice: Well, this is always an argument that you hear when to bring up now a controversial topic to the extent that you and I are on opposite sides of it. This is the argument that comes up constantly when we talk about the California State Bar, a notoriously difficult bar, one that most people fail.

 

This bar exam, whenever there is a discussion, often lead by the law schools themselves to lower the cut score to allow more people to pass the bar every year, people freak out and play, oh, you know, it was good enough for them, what’s wrong with you, you are just terrible students.

 

Sometimes a higher level argument and the one that I think you and Elie have made before is that this is actually just a tail wagging the dog of how law schools lower their standards over a series of years and therefore students who were never really cut out to be lawyers are now coming up and that we shouldn’t put our thumb on the scale to help that out.

 

Kathryn Rubino: Well, I mean whether or not you think the cut score should be lower, there is certainly something to that argument, right, that I mean as a matter statistics it’s pretty clear that the GPAs, the LSAT scores have decreased particularly after 2009, right.

 

Joe Patrice: Right.

 

Kathryn Rubino: So it is the average entering 1L classes at a lot of law schools is not as qualified as it once was. And if that has some impact on the overall ability for that class to pass the bar well, I am not sure that the answer is to change the test. I mean is it more difficult than the other bar exams of this country, of course, I mean there is only one other state is worst, right, Delaware. That is all true and maybe there is something to be said for a Uniform bar exam.

 

Joe Patrice: Well I mean Uniform bar exam is –

 

Kathryn Rubino: Well Uniform is grading system.

 

Joe Patrice: Yeah, right, that’s more the issue, because, yeah.

 

Kathryn Rubino: And that’s an argument to be had, but you can’t pretend that some of the dire numbers that people tout about the failure rates of the California bar are not at least partially because of the lowered entrance status.

 

Joe Patrice: Well and then the way this ties in to our overall topic is that when the law deans filed with the court, the Supreme Court in California about changing the cut score, a lot of their argument rested on many of the diverse and people of color, who are going through law schools were law schools that had worst pass rates.

 

That said, they did not have pass rates that obviously some students don’t pass but they pointed to the number of them that had pass rates that would mean they would be members of the New York Bar but weren’t members of California because of this artificial protective measure.

 

And the point was you don’t have to lower standards to the point where people who aren’t qualified to be lawyers gets to be lawyers but New York also a pretty important jurisdiction has a cut score.

 

(00:25:00)

 

And if what you’re doing is by and large disproportionately cutting out people of  color who tend to go at least in California to some of these other schools that are — they have a bunch of schools in California. So some of these schools are majority, yeah, some that are California schools rather than ABA schools.

 

But putting all that aside, their higher proportion of minority law students in California go to these schools that are not the ones you necessarily think of but nonetheless are doing the work and passing the bar if it were New York but just aren’t passing it because of this California tax basically of making it harder to get in and their argument is that that therefore makes this fundamentally a discriminatory policy.

 

And I kind by that, I feel like I’m opposed to the California bar system because I think that the New York bar is a perfectly acceptable one and they’re just trying to be protectionist. But when this filing came in that said, indeed the margin between those two, the delta between those two of who’s getting cut out then is disproportionately discriminatory, I thought was a much big problem and this pays back into the whole issue. You can’t have a more diverse profession if there aren’t people getting into the profession are more diverse.

 

Kathryn Rubino: Yeah I mean that is certainly accurate and it does make a lot of sense, but I also think that and I think it’s getting better now because the amount of applicants into law school is increasing. So law schools aren’t quite as desperate to fill seats.

 

But there was also a time where I think that a bunch of schools were somewhat predatory trying to get low information people to be lawyers or to go to law school, telling them all those money that they’re going to make on the backend but it was highly unlikely given that school’s reputation, that school’s ranking, that school’s ability to get you to pass the bar for even the best of students there.

 

So I mean I think that both of those things are true, right. And we can hold multiple somewhat contradictory thoughts in our heads.

 

Joe Patrice: And that actually gets to part of the problem with this California situation from my perspective because I believe the ABA for years was just rubber stamping law schools who are doing a bad job. And part of that was they were letting law schools keep going even though people wouldn’t pass the bar and just taking money from folks who weren’t going to pass the bar.

 

So in California I believe that’s super charged because of course the bar is too hard and people don’t pass and so they’re super charged putting people in bad place. But I do think the ABA, who a few years ago started stepping up and actually caring about institutions that were doing poor, having these poor pass rates and unfortunately for them what happened in response was the schools hired Paul Clement to sue on their behalf and the poor ABA who doesn’t have the wherewithal to defend itself financially, had to ultimately or at least allegedly, we don’t know what the problem is let’s just say they folded like Superman on laundry day as soon as these suits started happening and started agreeing well I guess, you get to keep your accreditation rather than do the job that they are actually assigned by the  government to do which is a credit these places.

 

That’s problematic too because that like you said, that’s where the problem is for me not the California bar, that’s where you have institutions that know that they’re turning out students who get a 43% pass rate on the bar exam or whatever, yet nonetheless they’re pocketing that money. That’s where an accreditation organization should step in and make a change not by artificially moving around the bar exam scores.

 

Kathryn Rubino: That’s fair.

 

Joe Patrice: I think that’s kind of my concern on that, but yeah. So these are all problems over the long term of how we address this. Have we solved this problem absolutely not, there is no chance that we did. But we did have a discussion about some of the major themes in diversity, if you’re interested in hearing more about diversity in the legal profession, Kathryn hosts her own podcast called the Jabot, which focuses specifically on these issues and comes out periodically. Okay, it comes out –

 

Kathryn Rubino: Very reasonably frequently.

 

Joe Patrice: Yeah reasonably frequently, you’re not like us where it’s like every week.

 

Kathryn Rubino: No, no, no well theoretically, there are two of you to shoulder that load I know that.

 

Joe Patrice: That’s fair.

 

Kathryn Rubino: The reality might be a little bit different but in theory.

 

Joe Patrice: Yeah and that’s why you’re here.

 

Kathryn Rubino: So I actually do two podcasts, this is reality.

 

Joe Patrice: Right, exactly, so you do one and a half podcast, but yeah so, if you’re interested that’s the Jabot. Thanks everybody for listening you should be ranking and writing reviews of this podcast so that you can help us move up and conquer the podcast services algorithm that says if you type in the word law, do we come up first; if not, that’s because you should be giving us stars and reviews/

 

You should be listening obviously to the Jabot, you should be listening to the other Legal Talk Network offerings of panoply of podcasts out there that you can list too, they all deal with law.

 

(00:30:01)

 

You should be reading Above the Law, you should be following us on Twitter. I am @JosephPatrice, she is at @Kathryn1. And with all of that, I think I have said everything I need to.

 

Kathryn Rubino: Bye.

 

Joe Patrice: All right, bye all.

 

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