Professor David Wilkins is the Lester Kissel Professor of Law, Vice Dean for Global Initiatives on the Legal Profession,...
THE ORRICK YEARS Ralph served as Chairman & CEO of Orrick for nearly a quarter century, leading the firm...
Getting a job at a large firm and becoming a partner is vastly different than it was even in the 1990s. Where there once was a school-to-firm process and pipeline, Harvard Law’s David Wilkins tells host Ralph Baxter that hiring is dominated by lateral moves and recruiting of proven talent. Where young associates were given a long lead time to show their potential, metrics begin year one. And where achieving partnership was once akin to achieving tenure for professors, partners now have to prove their worth at every step. The current culture for partners, Wilkins says, is “What have you done for me lately?”
Wilkins, who asked in his writing in 1996 and then in 2016 why there are so few Black lawyers in law firms, and Baxter, former chairman and CEO of Orrick, talk about the lack of substantial progress yet sincere intentions on the part of law firm leaders to achieve diversity.
But both agree that having good intentions isn’t enough.
Wilkins notes he will continue the conversation with his brother, Freshfields Partner Timothy A. Wilkins, during an Oct. 14 webinar, “Race, Sustainability, and Social Justice” hosted by Harvard Law School’s Center on the Legal Profession.
Prof. David Wilkins is the faculty director of Harvard Law School’s Center on the Legal Profession.
Law Technology Now
Black Lawyers in major American Law Firms How to Make More Progress
Ralph Baxter: Welcome to Law Technology Now. I’m Ralph Baxter and this is my 12th episode as co-host to the show. My guest today is David Wilkins. One of the world’s most influential observers of the legal profession. Today, David and I are going to talk about the continuing struggle major American law firms face in achieving greater opportunity and inclusion for black lawyers. This issue has implications far beyond the welfare of individual firms or individual lawyers particularly today, as we come to grips with broader issues of racial disparity in America. We’re recording this episode remotely, of course, because we’re in a pandemic. David is in Martha’s Vineyard and I am in my study in Wheeling, West Virginia.
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I’ve known David Wilkins for more than 20 years, and he is truly a remarkable person. David was educated at Harvard College and then went on to the law school where he served as the Supreme Court Editor of the Harvard Law Review. He then clerked in the circuit court, then he clerked on the US Supreme Court for Justice Thurgood Marshall, which must have been a remarkable experience. David practiced law for a few years and then in 1986, he joined the faculty of the Harvard Law School where he has had a distinguished career as a teacher, as a scholar, and as a leader. David has won a large number of prestigious awards as a professor. To me, most impressive is that he has twice won the Albert M. Sacks and Paul A. Freund award for Teaching Excellence at the Harvard Law School. First in 1998, then again in 2020, and I happened to be present virtually this year when he won it because my daughter was graduating.
David has written more than 80 scholarly articles including a seminal one on the subject we’re going to talk about today, which is called ‘Why Are There So Few Black Lawyers in Corporate Law Firms’ which he wrote in the California Law Review in 1996. One other of David’s writings I want to mention is an essay that he and Ben Heineman, the legendary general counsel of GE and Bill Lee, the former managing partner of WilmerHale wrote in 2014 called ‘Lawyers As Professionals And Citizens’ which is about the fundamental duties and responsibilities lawyers have to preserve the rule of law and justice in America, which is very important at this moment. David is the faculty director of the Harvard Center on the legal profession, which has a focus of how law works all over the world. One of the reasons I emphasize, his leadership and his influence in the way as an observer of the legal profession, is he does observe it everywhere in the world not just in the United States. And then finally, David is as dedicated to the people in his life as anybody I know, his family, his friends, his colleagues. It’s part of what makes David, David. That personal dimension and I think it’s part of why he has such influence and is so well regarded in our profession. So, welcome to Law Technology Now, David.
David Wilkins: Well Ralph, all I can say is I’m glad this is being recorded and will be played as a podcast so that I can make sure my mother listens to this. Actually, my mother probably will believe it but then I also want to play it for my 19-year-old son, who will completely think it’s malarkey, but I still want him to listen. Thank you for that generous, overly generous introduction.
Ralph Baxter: Well, I meant every word of it, but that will come in handy, really handy with your teenage son. So, what David and I are going to cover today, will quickly go through several very important facets, fundamental facets of this question. We’ll talk about why this is important. We’ll talk about the historical context in which are now our current status of diversity sits and then we’ll talk about what that is, where are we and then we’ll talk about what has impeded further progress that we have made and will close by talking about what David believes law firms can do to make diversity and inclusion more of a reality for black lawyers.
So, let’s start with why it matters. I’ve said David, that this is important beyond the law firms, beyond the individual lawyers, am I right?
David Wilkins: You are certainly right. Actually, I’ve been giving a talk which I thought was cleverly titled ‘Black Lawyers Matter’ and the subtitle is the ‘History of the Civil Rights Movement and The Future of the Legal Profession’ because the history of black lawyers is a critical part of the history of the legal profession. In fact, the reason why we associate lawyers with social justice has as much to do with my old boss, Thurgood Marshall and his mentor Charles Hamilton Houston, and their step-by-step litigation to produce Brown v. Board of Education, the seminal decision that outlawed segregation in the public schools and eventually in all of America as it does with anything else. That really was the beginning of the thinking of how do we use law as an instrument of social change and that in turn produced not just the Civil Rights Movement, but the Women’s Rights Movement, the Movement for Gay and Lesbian Equality, Disability Rights Movement. It’s spawned movement for equality all around the world including Nelson Mandela, who looked at Brown v. Board of Education and Thurgood Marshall as inspiration. So yes, it’s a critical subject that goes far beyond just the purview of the legal profession.
Ralph Baxter: Right. We’re talking now about diversity in the major law firms and that goes just within law beyond the major law firms, right? That the major law firm set the norm, set the standards and then the rest of the profession is influenced by that in a very real way.
David Wilkins: Yeah, that’s a very important point. Look, I think we always have to remember that the major law firms still are a relatively small part of the legal profession, depends on how you count, maybe 15% or 20% of all the lawyers, but they have enormous influence within the profession and far outside the profession since lawyers in major law firms and we should also include in-house legal departments and other similar spaces are influential advisors of some of the most important business interests in our country and around the world and also go on to occupy important positions in government and academia and in public service. So, they have a very large influence and therefore what happens in those institutions and whether those institutions are in fact open to talent for all has important implications that go far beyond the law firms themselves.
Ralph Baxter: And some of that is symbolic as well. If you can see these big law firms, and if you see that they don’t have any black faces in them, then you get a message from that and if they do, it’s a different message. So, it’s important and we’re not just talking inside baseball here. This is a big subject.
I want to start with history. I always believed when we talk about a subject like this, if we don’t take into account how it once was and how far we’ve come or whatever that is from that earlier time to now, it’s hard. We can’t really appreciate where we are now. So, there was a time that some refer to it as the golden era in law. You have dubbed it the not so golden era in the late 19th century, early to mid-20th century. Could you describe how the law firms are operated then in this way?
David Wilkins: Listen, a couple of things are important. One is the modern American legal profession doesn’t come into existence roughly speaking until the late 19th, early 20th century. Lawyers are solo practitioners before then. And the law firms — we think of the great law firms, so today they really get going in that period and that what people sometimes refer to as “the golden age” is roughly speaking of the 1950s or 1960s. So, we’re not talking of the 1850s and 1860s. This is important. And that period one can argue in various ways was golden for the people who got a chance to participate, but the fact of the matter is if you wanted to be a lawyer in one of those law firms, basically you had to be a white Anglo-Saxon Protestant man of means, other than that, it was open to doubt. All right?
It’s not until we get into the 1960s that even you get any presence of women, let alone Catholics, Jews. There used to be separate Jewish law firms and WASP law firms, let alone people of color. So, it’s very important to recognize that this is within the living memory of many people when law firms used to look incredibly homogeneous.
Ralph Baxter: Incredibly. So, in one of your articles, you pulled a quote from an article by Erwin Smigel called ‘The Wall Street Lawyer, Professional Organization Man’ and this is how he described it. Wall Street firms want lawyers who are Nordic, have pleasing personalities and “clean-cut appearances” or graduates of the right “schools”, have the right “social backgrounds” and experience in the affairs of the world and are endowed with tremendous stamina. That was the not so golden era.
David Wilkins: What I’ll say, Ralph, when I do use that quotes. One of my favorite quotes from –he was a sociologist and I tell people the reason why we have changed is in part because there are not enough clean-cut Nordic guys to go around as the legal profession has expanded in size.
Ralph Baxter: Which there really is a lot too of that, right? There’s been this dramatic expansion and so even without anything else motivating one, the firms had to find other sources of lawyers, and then that’s worked in the way that it has, which will turn to you now. On the diversity front and in particular the diversity front as two black lawyers, we’ve made a lot of progress. We’ll talk in a moment how much but we’ve made a lot of progress. What are the key drivers of that change?
David Wilkins: One thing to always remember is the legal profession does not exist in isolation. This goes to your first point. Lawyers often ask what’s happening to the legal profession. And I haven’t told them, generally what’s happening to the legal profession is what’s happening in the rest of society. What happened in the rest of society between the 1960s and today? There was an enormous awakening of the importance of civil rights and equality, right? This comes from the litigation campaign in Brown, but then actually another great book Gerald Rosenbloom’s ‘The Hollow Hope’ nothing really happened for 10 years until the combination of Martin Luther King and mass protests and you could even say violence in the streets in Watts, and you get The Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968. The three greatest pieces of civil rights legislation ever passed.
That then begins to slowly open the doors of opportunity to black Americans who had been shut out virtually from everything including the doors of higher education because remember, you can’t become a lawyer unless you go to college and law school. And so, until you open up the doors to higher education, you are not going to get integration in the legal profession then that begins in earnest, in the mid to late 1960s. Harvard Law School had one Black law student in the class of 1965 which was exactly the number of Black law students they’d had a century before. But by the class of 1968, there were 25 Black law students. By the class of 1970, there were 50 Black law students. This trend was going on around the country. That then began to both make it possible but also put pressure on law firms to then hire the Black law students who were coming out of these law schools. That’s what begins the process. There’s much more to be said but that’s the opening of the door.
Ralph Baxter: Right? And then other things have happened along the way and one of the things I wanted to ask you to talk about was this ‘A Call to Action’ that Rick Palmore and others made in 2004 because I believe it made a big difference. It really influenced the law firms in a direct way. What do you think?
David Wilkins: So, the process I’m talking about begins in the 1960s. I then write the article ‘Why Are There So Few Black Lawyers In Corporate Law Firms’ in 1996 and the premise of the article is how could it be that 40 years after Brown that Black still constituted less than 2% of all the lawyers in major law firms and less than 1%, I think it was like .5% all of the partners.
So, it turns out yes, the door opened. Yes, there were some efforts but frankly, there was very little in the way of sustained progress. In the article, I have lots of reasons for that which I’m happy to come back to, if you’re interested, but then there began to be kind of the mobilization of a new source of pressure and that was the pressure that came from clients. So ironically, Corporate America has actually done somewhat better with bringing diversity into managerial ranks particularly for our purposes, the ranks of the general counsel’s offices then the law firms, and the clients began to put pressure on the law firms to improve their hiring.
Rick Palmore was one of the first Black general counsels of a Fortune 500 Company. He wasn’t the first but he was one of the firsts and interestingly he had come out of being a partner in a major law firm. I think he was a partner at Sonnenschein before but he became general counsel at Sara Lee. He first Deputy GC and then GC and Rick is a really remarkable guy and he said this is unacceptable. So now remember, we were now 10 years almost after I wrote that article in 1996 and he mobilized about 200 general counsels eventually. It took a while to sign a letter that they sent to all their law firms saying that they wanted their law firms to do better.
I agree with you that it had an important effect. I will also say that as I’ve said to Rick, it wasn’t the first letter and it wasn’t the last letter. And what happens in these circumstances is that client pressure can get the attention of managing partners. It could produce some short-term gains. It could get people to fill out reports. It can help with some individual lawyers over time but until you address the structural or institutional causes of the failure to make progress on integrating law firms, which I humbly will say I identified back in 1996 and which have only gotten in some ways more difficult today simply exerting pressure or the business case as it sometimes said, in the kind of most sort of direct way, no matter how well-intentioned isn’t going to solve the problem and we know this because it hasn’t solved the problem.
Ralph Baxter: I couldn’t agree with you more but it did have the effect — I wanted to raise that in our discussion for two reasons. One, you’ve raised it in some of your other writings and the other is I experienced it. We were committed at Orrick to diversity. We had an affirmative action plan because we did a lot of federal work so we had one and we knew about it. I’m an employment lawyer. I knew about what the dynamics are that can prevent or enable diversity, all of that and then we get this letter that ‘Call to Action’ was followed by a call to action to all the law firms and I really think it was an important event in getting the law firms more focused on the question and more institutionally focused. I think you are exactly right as we’ll talk about here in a moment that there’s fundamental systemic issues that need to be addressed to get where we need to get. But from that moment on, the law firms treated the subject way more seriously whether they were doing it. Well, we’ll talk about that in a moment. But anyway, so let’s talk about where things are now. Well, how would you characterize the state of Black participation in major American law firms?
David Wilkins: So, in 2016, I gave a bunch of talks that title which I kept saying I was going to write but I haven’t. It’s in the process of being written. It’s called ‘Why Are There Still So Few Black Lawyers in Corporate Law Firms’ because the fact of the matter is 20 years later, there has been progress and it’s important to say that but Black partners are less than 2% of all the partners in the Top 250 law firms. That’s better than .5%. But I don’t think anybody in 1996 would have thought that we would have only gotten to 1.8% or something like that.
And there are several major law firms which will go nameless but who know who they are, who still have zero Black equity partners. Think about that. Today, Black associates are about 3% and have been holding steady or falling. So, we still have a long way to go. And again Ralph, I will say that it’s a combination of a couple of things. One is that the institutional pressures inside law firms that affect careers have gotten more complicated and more difficult for all lawyers between 1996 and 2020. And again, remember just as people — the legal profession does not exist in isolation. Black lawyers do not exist in isolation. They don’t live in a separate world. What happens to all associates and partners happens to Black lawyers too, it just happens more intensely.
So, if you think about what the cycle in a law firm is in terms of how people become successful, you’ve got hiring, you’ve got sort of retention and promotion and then you have what happens to people once they become partners. And in each of those three areas, life has gotten more difficult in many ways in a law firm between 1996 and today. So, hiring. In 1996, the majority of hiring most law firms did was out of law school. When you hire out of law school, there is a mechanism that actually you can build in equality of opportunity or at least fairness. You have the National Association of Law Placement which keeps track of the numbers of how many black lawyers you hired versus how many total associates. You have a law school placement process that has an anti-discrimination norms. You have a whole bunch of stuff. How do most law firms get most of their lawyers today? Through the lateral hiring market where there are zero checks and balances and it’s mostly driven by relationships like the partner will say, “Go find me somebody who’s really good at what I already do or people who you know.” That is going to disproportionately disadvantage Black lawyers. That’s hiring.
Okay, let’s talk about retention and promotion. It used to be that for the first six years, Ralph, you can tell me. You were kind of left alone to progress because basically law firms could bill you out to clients, there wasn’t a lot of pressure around performance metrics until you got to say year six, seven, eight, nine as you’re headed into partnership. Now, the pressure on metrics for associates starts at year one and that’s about billing, that’s about performance metrics which might seem good except nobody tells people what those metrics are and nobody tells them or gives them an opportunity necessarily to meet those metrics.
So, the short-term pressure on associates to perform is much higher today and that for reasons we could talk about more in length, has a disproportionately adverse effect on Black lawyers. Finally, you become a partner. It used to be we thought of partnership is like tenure, you know, which I often say tenure is never having to say you’re sorry which many of my colleagues take literally. But you know, you became a partner and that was it, you wrote happily ever after into the sunset. Today, being a partner is like Janet Jackson. What have you done for me lately? And every partner is about short-term, top-line business generation. They dread the knock on the door that says that their numbers are down if you think about business generation and the difficulties that Black lawyers have versus other lawyers, you can see why law firms are losing at every stage of this pipeline Black lawyers.
Ralph Baxter: So now, you’ve set a stage here and I agree with everything you have said about the present circumstance. I want to back up a second then we’ll come back and dig deeper as you just suggested about the systems that work in the law firms and about some of the other emerging pressures for life and careers in a modern law firm.
But before we get to that, we skipped over something, I wanted to make sure we observed. So, we touched on where we are in terms of diversity at the moment, ballpark. The firms have made formal commitments, almost all of them, maybe literally all of them have made commitments to diversity. They’ve got programs. They’ve got professional staff working on it and so on. Do you think they’re sincerely working to improve their diversity to be more inclusive?
David Wilkins: Yes. Listen, I know all the people who run these firms. They’re like people like you. Listen, this is everybody totally sincere. Look, isn’t everybody totally sincere and anything, no, but firms have spent literally millions. Probably if you’re in the aggregate, tens of millions, maybe more of money on diversity efforts and I think most firm leaders genuinely would like to do better and are genuinely embarrassed when somebody like me comes to log and says to them where we are now 65 years after Brown v. Board of Education. The question is whether good intentions are enough and we know what they say the road to where is paved with good intentions are oust(ph)? You can say that because you are the one who the FCC will come after.
Ralph Baxter: Right, you’re exactly right. But I think it’s really important as we tell this story, you tell the story that we observe the firms are making their efforts in the way that you just said and of course, every firm is different from each other and in certain ways and some are better and all of that, more sincere in all of that. But they are trying and yet we have this continuing situation. You’ve made a point that is hugely important for anyone who’s trying to improve their diversity. These things don’t just happen out because of good wishes. They don’t happen because you’re well-intentioned. They don’t happen because you are open-minded, you are equal opportunity in a philosophical sense because there are all of these dynamics at work, all of these systemic issues. None of which were designed at least in modern times to have an impact on diversity. They were designed to run the business, deliver legal service staff up, whatever they were doing, but they do have a consequence and so the law firms where they are is confronted with disappointing numbers and the law firms themselves regard them as disappointing.
The people who run their own programs are every year disappointed. We didn’t get further. And so now, we have to ask ourselves why. We have to look deep inside of how we run this thing because you know, it’s not an accident. It didn’t happen because somebody else did it to us. So why and that’s what we’ll turn to you now. So you were talking about the pressures and the pressures are all the things that you said and they’re just going to get greater because the world is changing externally. You’ve said now a couple of times correctly and it’s true in everything. The law firms are just part of a much greater ecosystem of business and the needs of their clients and competing for talent with everybody else and all of that. And so, there’s pressure on law firms to change the way they do things.
Diversity aside, their model is under pressure. What it takes to be successful is changing for the associate, for the partner, for everybody. So, it’s just going to get more challenging, I think. You have studied and have written eloquently in that 1996 article and elsewhere about how the system works, the high salary, the pyramidal model, the way people are or are not trained and mentored and evaluated. Can you talk a little bit about some of those dynamics that you think are at work in diversity?
David Wilkins: This is what I began to say before. I mean if you focus — the focus hiring is important, but frankly, if firms were able to retain and promote, promote and then retain the number of Black associates that they’d hired over the years, the numbers would look much better. So, the biggest problem is around retention and promotion and then promote then retention after promotion and that has to do with work. It has to do with how the law firms internally generate, manage, evaluate and distribute work. I often say to people look, you know a large law firm like your old one, it’s not a social welfare organization.
It doesn’t exist to produce diversity. It exists to produce legal work that will be of high quality and that clients will purchase, and it exists to be a part of that institution that produces greater societal goods. And to paraphrase James Carville what he said in his famous quote “It’s the work stupid and the problem is work is not evenly distributed.” It’s not evenly distributed in two senses. It’s not evenly distributed in the sense that everyone gets the same amount of work and even more importantly, it’s not evenly distributed that everybody gets the same quality of work because some work develops you into a better lawyer over time and some work does not develop you significantly, but it still might be work that could be billed out to a client. And it’s only the first kind of work which I called training work, back on that old article, is the kind of work that will allow you to develop to be somebody who eventually can become a partner in a law firm.
There’s a reason why we call it the practice of law. That means two things. One, you have to practice it because nobody learns in law school how to be a great lawyer, certainly not a great lawyer in a law firm context. You learn it on the job, which somebody has to give you the opportunity to do work of increasing importance for increasingly important client. And the second is somebody has to tell you whether you’re doing it well or not, which means that you have to get feedback both positive and negative and most importantly, negative because that’s how — or developmental is the nicer way to say it — because that’s how you develop and you get to be better.
Now again, this affects everybody, right? It affects everybody in a law firm, but there are reasons to believe that it is more difficult for Black associates to get access to good work and training and mentoring and development opportunities, and to get the kind of feedback particularly constructive developmental feedback that will allow them to get to the place where they need to be, so that somebody could look at them and say, “This is the person who should be a partner in our organization.”
Ralph Baxter: Let’s talk about how that affects Black lawyers differently. As you said, that system applies to everybody and I have experienced, you have experienced it. We’ve lived it. How does the impact become different on Black lawyers?
David Wilkins: So again, you need to take it piece by piece. So first, somebody has to give you an opportunity. Now, we know that giving an important assignment is at high stakes, high risk thing for partners because partners depend on associates doing their work. That’s one of the great secrets of lot of firms, is that most of the work is not done by the partner. It’s done by the people below the partner and the partner needs to believe or trust that the work is going to be done well. But the problem is partners are operating on very limited and imperfect information about who’s likely to be able to do their work well. And so, what do they look for, they look for proxies? Like who is on the Harvard Law Review or where did you go to law school? Or whether when I look at you, I see somebody that reminds me of myself. I can’t tell you how many partners have gotten more sophisticated than this but they used to tell me all the time with pride. “Oh, I saw Ralph. The day I met Ralph in an interview or in law school, I knew he was going to be a partner in this firm.” Really? In a 20-minute interview in a hotel room? You knew he was going to be a partner in this firm? How could that be? Well, it turns out I went to Stanford. Ralph went to Stanford. Ralph likes Rugby and I played Rugby.”
So, we know this. This is all of the literature about implicit bias says that people are way more likely to feel closer, to feel that they could trust people, to feel an instant connection with people who remind them of themselves. It’s not that that cannot happen across racial lines but it’s more difficult than in a world in which Blacks are less than 2% of the partners.
You’re there less people who look like you and more difficulty in making those kinds of connections, right? And this extends outside of the firm as well so that the client has to trust you and the client is high stakes for the client too. Again, this is why I’m talking about things that exist in the — we haven’t talked about intentional discrimination once. But the client has a major matter. The client is worried. The client needs somebody that they can trust. Who are they likely to trust? They’re likely to look at proxies like who’s done a lot of this transactions before? Well, if you’re looking for who’s done a lot of it before, you’re going to find the same people who always get an opportunity to do it and it’s a self-reinforcing thing. So even if you’re a Black partner, if you’ve not had an opportunity to do this kind of transaction before, people are way less likely to give you the opportunity the first time and without the first time, there’s not a second time, not a third time, et cetera.
Ralph Baxter: As you say, we are talking about a dynamic that applies to everybody but has an outcome, a consequence, an impact in the case of Black lawyers. It also has that impact on other lawyers in any given class. I watched it happened. When I was an associate, I saw people get relegated to the lower track of more —
David Wilkins: We call it politely the paperwork track. There’s another word you could use but again Ralph, I don’t want to get your FCC license in trouble.
Ralph Baxter: But the question we’re focused on is how do we get to this place? How are we this many decades after Brown v. Board, this many years after? Anything you can pick as a measuring place and only have fewer than 2% partners in major American law firms and the answer is in part as you’re saying, the way this system works so that the people coming into it the way still are the Black lawyers, Black students, Black candidates are going to come into it. They will have a higher incidence of failure by virtue of what you’ve just described.
David Wilkins: Although I think you also have to say there’s also both a push and a pull. So, a lot of times when you talk to law firm managing partners, they will say things like, “Yeah, we had this fantastic Black associate. We love him or her but then they left and they got hired by the general counsel and they left. They are so much in demand that we can’t keep them.” There’s some truth to that. And the reason why there’s some truth to that is that law firms do not exist in a vacuum. They are not the only ones who faced pressure, to try to do better in diversity and who see talent. Do you think I say that law firms is a couple of things? One, how come that other job was better than your job? We used to say that being a partner in a major law firm was the best job you can have in the legal profession. If that’s no longer true, you need to think about why and if it’s particularly no longer true for Black lawyers, then you need to really think why. And oftentimes what it’ll turn out when you go talk to the Black lawyer is nobody — he’ll say or she’ll say, “Nobody told me that they thought I was a superstar. Nobody was treating me like I was a superstar.” So, in other words, if you care about an asset, then you need to treat it like a precious asset. You cannot just treat it like it’s just like everything else, if you really care about.
Ralph Baxter: Right. This is one way in which we can see that what it would take to address the challenge you’re describing if a law firm were to respond in the way that would take the advice you just gave. It would be better for the firm as a whole. That same absence of positive feedback is felt by the white lawyer as well as the Black lawyer. It’s felt by everybody. And it’s part of the problem. Part of the problem that law firms have at the moment among all the pressures they feel is the challenge of retaining their best people, attracting and retaining their best people across the board which they could — and what would address that would also address diversity at the same time?
David Wilkins: Yes and no. I think you have to be a little careful about this. So, I’ve often said listen, the analogy I give is if you’re looking, I’m looking outside my window in Martha’s Vineyard and you might see a bunch of birds on a branch and if the branch starts blowing in the wind, it’s blowing for everybody. It’s going up and down. But the closer you are to the edge, the higher the amplitude of the swing and then more likely it is that you are to fall off. So yes, all of these are issues that affect all associates.
I often say the problem with law firms is not that their business is, of course, their business is. It’s that their traditional business model was roughly speaking 19th century sweatshop capitalism, which is that we bring in the assets, we grind them to a pulp and then we throw out the ones that we don’t need and we take in some more. I think the reason you asked me why is there now renewed attention and hope, it’s exactly because the business model of law firms is overall under pressure. Their human capital model is over all under pressure, their demand for labor has increased exponentially at least until the current COVID crisis. We should come back to that at the end. But the fact of the matter is they are looking at this precisely because they’re looking at the entire business model. The one caution I would give is that yes, the overall mechanisms are similar, are the same for Black lawyers and other lawyers, but that doesn’t mean simply addressing an overall performance evaluation metric system will automatically solve the race problem because the race problem also has dimensions that are unique to the race problem that you also have to address.
Ralph Baxter: I couldn’t agree with you more and let me let me be clear about what I meant in what I said because I agree with that. I didn’t intend to say that these were the same thing but I do believe this deeply that the tactics that one can use to address racial diversity will have those same tactics will be therapeutic in other ways. It’s not the same as the birds being in different places, they are. They are in different places. I get it, but there’s a — in all of the things that you’re describing, there are fundamental systemic flaws in the organizational model and we’re isolating today the impact this has for good reason. We are identifying it on Black lawyers, but it’s flawed.
Now, we don’t have time to get much deeper into this problem. Suffice it to say this is a much more complicated issue than we’re giving than we’re able to get into today. I do think that David’s 1996 article remains very valuable to read in its detailed treatment of the systemic model of the law firm. Actually, it’s good reading for any associate as David and I were talking about before we started the podcast, for any young associate to anticipate how this model is going to work and figure out how you navigate it. And actually, it’s very informative to somebody who’s run a law firm for a long time to look back and see what that really was examined by economists, sociologists and David.
Let’s take a break for a second and get a commercial in, then discuss how we can make it better.
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Ralph Baxter: We’re back and we’re talking today with David Wilkins about racial diversity in major law firms and all of its implications. We’ve just talked about some of the reasons that we have not made more progress in major law firms. I want to turn now to what David thinks law firms can do to facilitate greater diversity. David?
David Wilkins: So, to link the two parts of the conversation it’s always important to remember Einstein and what Einstein said which is the definition of insanity is to do the same thing over and over again and expect a different result. And I think the challenge that law firms have is that they tend to do more of the same and expect a different result.
And if you are with us so far, that core reason we haven’t made progress has to do with the fundamental workings of the institutional mechanisms that were not set up intentionally to discriminate against Blacks or to keep Blacks out, but which have the unintended but predictable consequences of doing so then you need to intervene in those processes, which means you need to intervene in how people get work, how opportunity is distributed in the law firm and you need to make sure that it’s not just a formal assignment system. Every law firm has a formal assignment system and every partner will tell you that, “Yeah, I don’t really ever use that or I’ll use that for things that are unimportant.” And then there’s a backchannel assignment system where people assign work to the people who they know they have trusted. But that backchannel assignment system predictively perpetuates the challenge that Black lawyers have in becoming a part of that good backchannel.
So, that means way more attention to work assignment, training, mentoring and development in a way that focuses on the real opportunities that help people get ahead inside organizations. And yes, Ralph, as we said before that can be a general program that applies to everyone but you have to make sure that the Black lawyers who are by the way not very many to begin with are getting the right access and the right opportunities out of those programs. Now again, let me be very clear. This is not a gift. So, if people aren’t performing then they’re not performing or if it’s not for them. Some people will find that you know, this is not for them. But what the problem is you need intentionality to say how do we intervene in this process to ensure that the Black lawyers overcome the disadvantages that they start the process with in terms of getting access to good work training and development opportunities.
Ralph Baxter: And that can be done today. First of all, I agree with you to do what you just said of course requires the law firm to regard this as an important issue. You will not intervene if you don’t think it is. And that’s why it’s important for us to start and in any conversation to start with why this is important. This isn’t just a nice to have and something it’s politically correct. This is important. That’s important in part for the law firms even if they’re just selfish because without doing this, you cut yourself out of a substantial portion of the potential workforce and partnership by doing that. The technology today is your friend on this. The technology can really make systems that are designed to manage the career progress of lawyers happen the way you planned it.
When I was back at Orrick, the technology wasn’t there yet, but it is now. So, you can develop a plan for any associate including your Black associates. This is how we’d like it to go and you can monitor what the lawyer is experiencing and you can nudge the people that you expect. We want Wilkins to see to it that Smith gets this kind of mentoring. You can nudge Wilkins to do that, you can monitor whether Wilkins did that. When we didn’t have this technology, you had to rely on anecdotal stuff and all kinds of paper in it and it took forever and didn’t happen. But now, it’s electronic and you can manage this. This is an example of something. This kind of career management will be better for everybody. What you said about this isn’t a gift and that the negative feedback is more valuable than the positive feedback, that’s what we’re talking about here. We’re talking about a system in which people get the feedback that they need in order to learn, get better or find out that this this isn’t a match. I’m not good at this, right?
David Wilkins: Yeah, or I don’t like it. By the way, law firms need to stop viewing when people leave that those people are failures because in fact, they should look at it like McKinsey looks at it. So, two things McKinsey does which almost no law firm does in reality, even though some might say they do, one is McKinsey in its mission statement says that it has twin goals or bottom lines or guiding principles. Excellence in service to clients and excellence in developmental professional opportunities and experiences for its people.
That they are equal and although every law firm says we love our people, we hired our people. People are us. In fact, none of them, I think, really take that seriously and the second is no one expects anyone to say at McKinsey from two or three years. And yet when you talk to anybody who has been at McKinsey, they will say two things. One, it was the greatest experience of my life that I made all these relationships and that’s how I got all this cool job, and I hired McKinsey for anything and two, those people are insane and I would never be there. But it’s not viewed as a failure, which is the way law firms still view it. And so understanding this is part of a dynamic career process. Second, what you said about technology is really important. How could we harness technology to improve not just the way in which we monitor work or we organize work, but the work itself in ways that actually improve what the life of an associate is? I think most people are so afraid of technology that they think it’s going to take away jobs, but it could also improve the jobs of the people who are there. I think that’s a critical point. And then the third thing I’d say is how can we understand and take a better advantage of the external environment?
So, we are now in a world in which issues of social justice are now moving to the heart of what you might call the sustainability agenda which in every place in the world, except the United States and now increasingly in the United States is the number one corporate at the top of every board member, every CEO’s mind is sustainability, its stakeholders, it’s how do we reinvent capitalism in a world on fire and as Rebecca Henderson says at a great new book, these issues are now things that law firms have to interact with their clients and in their own practices and moving social justice and racial justice as to the heart of the sustainability agenda is a critical way for law firms to move forward not just on this issue but to move forward in the future in general.
Ralph Baxter: That’s a great place for us to stop. This is why I wanted to have the conversation with you, David, today because we are at such a time. The time you’ve just described and it’s not just about race, but it’s very importantly about race at the moment, but it’s about other things as well as you have just put in context.
Let me say one more thing about the specifics because I think this will be helpful to all of our listeners who are in these law firms or leaders of law firms. What you said about law firm saying we care about our people but then the action doesn’t really match that, and it’s not because they’re insincere, it’s because it takes more than it once did, it certainly takes more than we’re doing. That’s where we are.
That same thing is true about we care about our clients. One of the most important themes for example in the detail of running a law firm is that the law firms have to get better in touch with what the real objectives of their clients are, not just what the lawyers’ objectives are in doing the work, what the clients objectives are and I don’t want to get us off our subject here, but it’s not like foreign territory. This way of changing the introspection and then the thinking about the organization and its objectives must be done to further interest in diversity are also going to be present in other things.
David, this was a really illuminating conversation. We barely touched the surface on some of the subjects, but I think we got the fundamental ideas out and I so appreciate your joining us today.
David Wilkins: Well, so Ralph, I’m delighted to be here. I’m very proud of what you’re doing. I think this is really important. I’ll just put in a plug for two things. If people are interested in another way to keep up with these issues, I urge them to subscribe to our digital magazine from the center of the legal profession called The Practice where we take on these issues in a serious, but not academic way, but made to be read by busy practitioners and we’re doing something around diversity, around technology, around globalization, around sustainability.
Will send you so you can post with the podcast the link to that. And the second thing is my brother who is the global partner for sustainability at Fresh Fields and I on October 14th are going to do a webinar which we are calling the “Wilkins Brothers: A Conversation Among the Wilkins Brothers on Race, Sustainability and Social Justice.” And so, if people are interested in this connection, which I believe is the most important thing that’s happening in this moment with respect to issues of diversity and inclusion, tune in and hopefully you’ll have some very interesting data and some interesting things to say.
Ralph Baxter: I’ll tune in. That sounds great to me. Let me just say a couple of things to close up our episode. I’ve discussed in earlier podcasts how important I think the broad issue of diversity is for law firms. Law firms need to divert, make themselves more diverse in the background of their people, in the perspectives of their people and when they do, they will be stronger. But this dimension of diversity is singular. It’s important in addition to those — it’s part of that broader idea of diversity, but it’s got its own significance. The leading law firms do set the standards and they do set the norms for the rest of the profession. They create role models for others to follow and they are emblematic of how our legal system works and if they’re not racially diverse, it calls into question whether our legal system really does work for everyone.
I know from my years at Orrick where we very sincerely made progress and tried every year to make more how difficult it is, this will not happen by accident and you have to be self-aware. You have to be self-critical about your progress and examine why you are not doing better. It requires real leadership for law firms to make progress here. David can share with you ideas about how it might be, how you might do better but if the leadership of the firm is not behind it and not ready to accept the inconvenience of change, which we’re going to face in a lot of other fronts, then it will not happen. I am optimistic actually about law firms dealing with this. It is in their self-interest. They do want to do the right thing. I believe that nearly all the law firms are quite sincere about doing the right thing and I think they will put in the work to make the progress we need in the years ahead.
That’s the end of this show. I wanted to just thank everybody for listening in on this podcast. You were lucky to listen in on a podcast with David Wilkins. If you liked it, please review us positively on Google or Spotify, Apple, wherever you get your podcast and recommend us to your friends. Recommend us to any of your friends who are interested in law and the way it works and how we can make it work better for everybody and that’s not just lawyers, people who have law in their life, which is kind of everybody. We would love them to listen as well and until next time, this is Ralph Baxter for Law Technology Now.
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