Is achieving diversity in the legal profession a realistic goal?

by Don Prophete

The question of whether the legal profession is serious about achieving diversity among its rank continues to be debated throughout the legal community.

Many critics believe that the overall lack of diversity in the legal profession is evidence of either a nefarious motive to keep racial minorities outside the profession or of a lack of commitment to diversifying the profession.

As a member of the Board of Directors of a large national law firm and the Firm’s Chief Diversity Officer, I do not believe that either covert discrimination or simple apathy are the primary causes of this problem. This, of course, is not meant to naively imply that the legal profession is devoid of historical or current discrimination. Indeed, until approximately 30 years ago most law firms in America refused to hire African Americans and other racial minorities. This historical problem has, of course, contributed significantly to the overall lack of diversity in the profession today.

Neither am I convinced that overall apathy is the primary culprit for this lack of diversity. It is true that many firms and companies do not view diversity as

a primary area of focus. While many shudder at this thought, there is merit to the argument that a law firm’s primary role is to hire the brightest lawyers to represent their clients without regard to factors such as race. Notwithstanding this position, a number of law firms and corporations have demonstrated a sincere commitment to diversifying their ranks. They are part of a growing number of firms that have bought into the increasing call for diversity in the legal profession.

If neither discrimination nor general apathy are the real culprits for this lack of diversity, then what is the problem? While the solution is complex, the nature of the problem is simple. The primary problem is

the lack of a “qualified” pool from which law firms and corporations can readily recruit diverse talent.

I reluctantly use the term “qualified” in the instant context, because that term is, in many respects, quite subjective. Critics argue (incorrectly) that the selection process is flawed because the focus rests entirely on grades, law school rank, and class rank, instead of an individualized assessment of skill sets. Regardless of whether one favors these long-used selection criteria, the current standards are objective and unlikely to change. 

The stark reality is that for a variety of reasons including lack of interest, finances, grades or simply because of the arduous nature of the law school curriculum, very few minorities are admitted to law school. Coupled with the profession’s tendency to limit recruiting to students falling in the top 10 to 15% of their class, very few minorities will be selected for legal positions. Proportionally speaking, only a minuscule number of minority applicants will possess the “qualifications” necessary for selection for an entry level legal job.

There appear to be only three plausible options. The profession can relax the current selection criteria, which is not something this author would advocate; it can redefine its existing selection criteria to add more subjective qualifiers; or it can increase the pool of qualified minority candidates.

Increasing the pool of qualified candidates is an arduous process that requires significant industry commitment over the next several generations. Currently, to meet their diversity goals, law firms raid the limited number of qualified candidates from competitors, which leads to a vicious cycle of raiding with little positive impact on the greater goal of increasing the profession’s diversity numbers.

Finally, one must note that while the goal of achieving diversity in the legal industry is a noble one, without strong financial incentives, the profession will never make diversity a priority. Doing the right thing is simply not a sufficient motivating factor for law firms to tackle diversity. This is especially true in light of the divisive nature of this issue. Corporate law firm clients are essential to motivating law firms to diversify. Law firms, like all good businesses, respond to their clients, because doing so makes good business “dollars and sense.” A continued demand by corporate clients for qualified diverse lawyers to work on their matters will go a long way in driving the behavior necessary to address this problem.

 

Don Prophete is a Member of the Board of Directors and the Chief Diversity Officer of Ogletree Deakins.
P | 816.471.1301
E | don.prophete@olgetreedeakins.com