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Opportunities of Diversity:  Yours to Lose

By Nicole D. Harris
 

If three people from the same economic background, who attended the same schools and who have similar life experiences discuss how to solve a problem, they are likely to all come up with the same solution.

If three people from different backgrounds, who attended different schools and who have different life experiences discuss how to solve a problem, they are likely to come up with different solutions because they each approach the problem from a different perspective. This second group provides diversity of thought.

Why is diversity of thought important? For policymakers and law professors, diversity of thought is a tool to ensure that a law is more likely to be class, race, age, ability and gender neutral. For companies, diversity is a corporate value and a business imperative. Individual departments within a company and a company as a whole must reflect the diversity of the customer base to provide the best service, communicate with customers appropriately and support the varied communities in which customers live.

By working together to better serve our clients and our customers, we can create the change that is needed in our profession to ensure that the law, which helps hold our society together, is enriched by diversity of thought to remain functional and relevant in a changing world.

We all hear about diversity plans and talk about diversity initiatives, but taking action is crucial. In-house counsel understand the business case for diversity and are aligned with the business units. We recognize that our job is to support our company in getting business done and serving customers. In-house counsel expect the same focus from outside counsel.

One of the most powerful ways for lawyers to demonstrate a commitment to diversity is to examine our own actions as impartially as we would examine those of a client.

Both in-house and outside counsel focus on continuous improvement. We use metrics and benchmarking to evaluate our success in meeting goals. With those tools in mind, how well do our internal and external actions demonstrate a commitment to diversity?

Consider the composition of your department or firm as a whole, then in terms of the management team or equity partners, to determine how well you have internalized the need for diversity.

After taking a snapshot view and evaluating the diversity numbers at a particular point in time, the next item to consider is retention rates for diverse categories of attorneys by age, gender, ability and ethnicity. Historically, law firms have significantly more difficulty retaining diverse attorneys than law departments.

This trend presents an opportunity for law firms and law departments to work together to strengthen the position of diverse partners currently in firms and to identify promising junior, diverse attorneys early on.

There is more than one way to promote diversity. In-house counsel can hire minority-owned firms or diverse attorneys at majority-owned firms. In either scenario, in-house counsel look at the team working on each matter to assess whether the focus on all key aspects, including diversity, are being met.

INSIDE LOOKING OUT

When in-house counsel work with diverse attorneys at majority-owned firms, there is often a frank discussion of origination credit and selecting or changing the relationship partner. Whether or not a law department has a formal discussion with firm management, these topics will be discussed. If the law firm team moves, the work may move as well whether or not the person historically viewed as the partner managing the client changes.

On a monthly basis, technology — specifically billing software used by in-house counsel — provides a useful tool to make sure that promising diverse attorneys receive good work and increasing responsibility to encourage them to stay at the firms.

In-house law departments use a variety of programs to monitor bills. That software allows users to sort billing entries by the names of people who have billed time. Most programs offer additional information fields, which can include information about diversity (as defined by the users of the system). It is not difficult to run a sort, look at the names of the individuals and note whether any are female or otherwise diverse based on information voluntarily provided.

In-house attorneys assess their law firms in much the same way as the business units assess their service providers: by considering the expertise provided, the cost and the extent to which the firm or service provider understands the corporate values. Because in-house counsel is measured in terms of success supporting corporate values, in-house counsel will hold outside counsel to the same standards.

When diversity is expressed as one of the corporate values, but a proposed law firm team is not in any way diverse, it is clear that the firm is not interested in supporting the company values or helping the in-house attorney demonstrate a commitment to those values. Large law firms seem to be surprised when a case is awarded to a different firm that has a diverse team or to a firm that proposes joint representation with another firm that is diverse. There are many law firms with a variety of areas of expertise, and cost is negotiable if the work is desired. Therefore, understanding the business and the corporate values are the easiest ways for a law firm to stand out in a field of competitors.

In-house counsel get to know the outside counsel team members in different ways. Some departments hold annual mandatory meetings with all outside counsel to discuss vision, values and performance, while others address these areas one on one. It is most helpful for in-house counsel to clearly state the obvious to outside counsel: You are expected to learn about the company and its culture and to take that into consideration when representing the company.

Outside counsel should consider reviewing the Call to Action Web site, www.clocalltoaction.com, and www.stakeholder100.com to determine whether any of their clients are listed as signatories or participants. That information can provide insight into the expectations of in-house counsel at particular companies.

THE WIDER VIEW

After scrutinizing internal metrics about the in-house department, the outside firm, the project or case team and identifying areas for improvement and implementing a plan to accomplish improvement, it is important to take a broader, external view and consider how to diversify in the profession as a whole via outreach programs.

Outreach efforts which can take many practical and concrete forms:

• supporting diverse bar associations by joining and participating in events,

• including diverse students in law firm and law department summer programs,

• offering diverse students access to law firm and law department internships,

• providing scholarships for diverse law students,

• funding programs that introduce undergraduates to the legal profession,

• coordinating with organizations to encourage diverse students to excel college by providing funding or mentors,

• donating to organizations with curricula tailored to diverse students in grades K-12 who have intellect and skill but might not complete school or consider college if they have not met anyone who has gone to college and do not think that they can afford to attend.

Outreach efforts address the issue most often raised by outside counsel: There are not enough diverse law students. It is true that the percentage of ethnically diverse law students does not match the percentage of ethnically diverse people in the state of California or in the country. However, it is also true that diverse students may attend a wider variety of schools or may have completed a different career path en route to law school. It is incumbent upon law firms to become familiar with the entire market of law schools to locate talent.

Expanding the pipeline of diverse students entering law school via outreach is critical and much more can be said on that point. However, it is also critical that we reshape our departments and firms into places where those students want to work: places that are inclusive and value diversity of thought as well as a variety of approaches to problem solving.

What we can achieve is limited only by the extent of our commitment.

If, as in-house counsel, we ignore the business imperative of diversity, then we do not provide the best advice to our business units which ultimately affects the quality of service provided to customers and the bottom line. If, as outside counsel, you ignore the significance of diversity as a business imperative, then you reveal that you do not understand the needs of the companies for which you work.

At the end of the day, value of diversity of thought is ours to embrace and the business is yours to lose.

This article first appeared in the 2007 issue of Diversity, a supplement to The Recorder.

Nicole D . Harris is corporate counsel in the law department of the Pacific Gas and Electric Company and a graduate of Boalt Hall School of Law. Ms. Harris has been active in the American Bar Association Minority Counsel Program, the California Minority Counsel Program and the Charles Houston Bar Association for several years. She thanks Don Liu and Marge Shultz for their thought-provoking comments and Group 1124 for insight .