New Solutions to Persistent Problems
January 04, 2021
In 2020 we simultaneously faced a health crisis not seen for a century and racial equity challenges that seem certain to persist for yet another century. The economic impact of COVID-19 led diversity leaders to caution against employers making cuts on the backs of diverse professionals – or diversity initiatives.
This concern is well-founded. Women’s jobs are almost twice as vulnerable in a crisis than those of men. Diverse attorneys are at risk of losing even the small gains achieved over the last decade. Job openings for diversity professionals fell nearly 60% after the first wave of the pandemic. It took the Black Lives Matter movement and protests in the U.S. that highlighted still brutal racial inequities to reverse that trend. Job openings for DEI professionals sky-rocketed, and DEI has been an intense focus ever since then across legal and other sectors.
The legal industry’s struggles to make progress on diversity, equity, and inclusion were clear and painfully evident before these events. Nearly 70% of Chief Legal Officers responding to the ACC CLO Survey at the end of 2019 indicated that addressing the lack of diversity needed priority and would accelerate in the future. Most recently, the Citi Hildebrandt Client Advisory indicated that many law firms instituted programs to work harder on diversity and inclusion in 2020.
Although DEI receives a lot of attention, effective action is rare. Legal has made negligible progress in the past ten years. Since 2009, the percentage of Black associates in law firms has, unbelievably, declined in more years than not. This matters: clients want diverse partners to work on their matters, but partners start as associates. You can hire large numbers of diverse summer associates and new law school grads (and firms often trumpet doing so as “success”), but the numbers show that minority associates continue to leave at higher rates than their non-diverse peers and are with their firms for shorter periods. This pattern has remained constant and is the reason overall numbers improve at a glacial pace.
Despite the challenges, clients continue to want change. They ask increasingly direct questions of their outside counsel about whether they are diverse, inclusive, and provide equal opportunity for advancement for their under-represented attorneys. Law firms face an increasing risk of being excluded from panels or having work pulled if they fail to deliver on DEI. But it takes years to create and sustain programs that are robust enough to make a difference and meaningfully change the numbers.
A digital strategy around DEI is one of the most powerful tools for action to ensure talk becomes a reality. Today, most law firms possess many data points but lack the ability to gain useful insights or identify DEI trends. Consequently, firms do not understand what is – or is not – working. As with the growing use of data to analyze and optimize outside counsel spend, DEI data can be gathered, studied, and leveraged to obtain actionable insights and drive strategic action. Hiring, retention, promotion, inclusion, and belonging need not only to be measured but should also be viewed over time and in multiple ways to determine what initiatives and programs are proving effective.
Imagine that a law department wants to know how its law firms are doing on DEI. They could certainly measure their firms against others by, say, the number of equity partners who are diverse or firm policies to advance diversity. But it’s much more effective to measure multiple variables in conjunction with each other to get a fuller picture of real change over time. Law departments could use a digital strategy to collect diversity and inclusion data from their law firms to gain insights on whether diverse attorneys are getting client pitches and work opportunities, high-value work, and firm leadership opportunities. This would be a powerful tool for law departments to assess DEI efforts of their firms in meaningful ways.
Likewise, for law firms, a strategy for the advancement of Black or Latinx associates should involve multiple measures over time of how a firm is hiring, promoting, and retaining those lawyers. Measuring success merely by how many diverse partners are in the firm today is not especially meaningful. Firms should leverage data obtained from HR systems, billing data, and inclusion surveys to understand whether they are providing opportunities for professional and client development, training and networking, and associate engagement that result in the promotion of diverse associates. A firm could create a composite score that captures what makes diverse associates successful. That could then be the foundation for developing proven programs that succeed, rather than firms taking a scattershot approach and hoping that somehow the result will improve.
Adopting a digital strategy to advance DEI means harnessing the power of vast amounts of data and, from that information, identifying usable insights on how law firms are really doing and what actually works. It’s a much more powerful way for law departments to assess their law firms and law firms to make progress internally and against each other. If we want to start to achieve DEI in law, digital is the way to go.
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