Article Review -
Your People: Valuing Diversity
Author: Prof. David B. Wilkins. Publisher: forthcoming.
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Discussions about diversity have become a staple of modern law firm life. In Britain, for example, both the Bar Council and the Law Society recently published lengthy reports containing specific directives and policies designed to ensure equality and to promote diversity among their respective members. At the same time, managing partners of law firms in the UK with global aspirations declare, in the words of Clifford Chance’s former senior partner, that ‘the question of culture is critical’ and affirm their intention ‘to create a genuinely multi-cultural firm.’ Although diversity is unquestionably now an important topic, there is far less agreement about why diversity matters, what kinds of diversity should count towards these goals, and how best to bring about the diversity that firms claim to seek.
But this requires melding national as well as professional cultures. Often, linguistic differences will be present as well. And because law and lawyers are intimately connected with national sovereignty and identity, the attorneys who make up these global firms will come from different normative and substantive legal traditions embedded with differing, and potentially conflicting, notions about law, lawyering, and professionalism. Given these realities, the barriers to integrating these diverse ideas, styles, and practices into a functioning global firm are considerable indeed.
In the United States, women and minority lawyers who are joining large firms are similar in most important respects to the lawyers who have worked in these firms for generations. Virtually all are American, most are graduates of the same elite schools as their white peers. The fact that US firms are having difficulty integrating US women and minorities into the institution’s cultural fabric does not bode well for their ability to form global partnerships with lawyers who come from substantially different national, linguistic, and professional backgrounds. Although my research is therefore primarily limited to the American context, the turn to market-based diversity arguments in the USA is likely to have important implications for law firms in other parts of the world.
Of all the factors that have contributed to the failure of most US law firms to hire and promote a significant number of women and minority lawyers, two have emerged in my own research, and the research of other scholars, as being of particular importance: (a) the exclusion and alienation that many women and minorities feel from traditional law firm culture, and (b) the built-in biases of the ‘tournament of lawyers’. Understanding both of these themes, I submit, will be crucial for lawyers in Europe and the USA who wish to build stable and successful global law firms for the twenty-first century.
The US experience of trying to integrate minority and women lawyers highlights both the importance and the difficulty of cultural integration. Minorities and women consistently report feeling excluded and alienated from the prevailing culture of many law firms. Thus, women lawyers often feel trapped between an ‘old boys” culture that views women as unfit for demanding work assignments and an implicit expectation that women must play a demanding but unappreciated role as ‘nurturers’ inside the institution. Minority lawyers frequently complain that they are left out of the informal social networks in their firms, thereby isolating them from the information, opportunities, and relationships that invariably flow through these channels. Research on women and minority solicitors in the UK has reached similar conclusions about the exclusionary effects of traditional law firm culture
The net result is that lawyers from both groups in the USA and the UK often fail to reach their full potential because of what they correctly perceive as the firm’s oppressive and exclusionary culture. If firms are going to make real progress on improving their retention of women and minority lawyers they must find ways to change these prevailing cultural norms. The problem is likely to be even more acute with respect to the issue of ‘cultural integration’ faced by firms like Clifford Chance and Freshfields, which have participated in large mergers with their continental counter-parts. If global firms are to avoid having foreign lawyers feeling as excluded and marginalized as US minorities have traditionally felt, they must begin, as Garth has argued, ‘to start thinking like anthropologists’, and question some of their fundamental assumptions about what it means to be a ‘professional’ in a multicultural society.
Redefining Professional Identity
Through legal education and professional socialization, lawyers are expected to adopt a ‘professional self’ that subsumes all other aspects of their personal and moral identity. According to this standard account such aspects of a lawyer’s personal identity—race, gender, religion, or ethnic background—are irrelevant to defining one’s capacities as a lawyer. Some in the legal academic community have labeled this traditional ideology: “bleached out professionalism.”
As a preliminary matter, women and minorities stand as a constant reminder of the falsity of the implicit claim of bleached out professionalism that the current norms of professional conduct exist independent of any particular pre-professional identity.
Moreover, by stigmatizing as unprofessional those whose identity related commitments fail to conform to traditional understandings, bleached out professionalism stifles innovation. Many of the most important critiques of long-standing professional practices have been launched by lawyers challenging the manner in which existing standards fail to recognize particular aspects of their non-professional identities.
Consider, for example, the alternative dispute resolution movement in the USA. Feminist scholars in the USA have long claimed that the British and American adversary system, with its emphasis on aggressive winner-take-all combat, reflects a distinctly ‘male’ form of identity. Although such claims have always been controversial—even among women academics—many of the scholars and practitioners who levelled these charges have also been instrumental in pressing legislators, courts, and litigants to seek more consensus-oriented means of resolving disputes. The resulting shift towards negotiation and mediation has been one of the most important innovations in American law in the last quarter century.
Similarly, black lawyers in the large law firms have often used identity based organizing strategies to cope with the isolation and subtle obstacles that still haunt their careers. For example, black lawyers working in large law firms appear to be more likely than their white peers to engage in pro bono work, to have spent time in government or other public service, and to be active in bar organizations. Although their primary motivation is a commitment to use their legal skills to uplift the black community as a whole, many black lawyers find that the experience, visibility, and contacts that flow from public service will be especially useful in helping them to overcome the obstacles that they face as minorities in the corporate world. In the process, however, many black attorneys have found that their engagement with public service also has helped them to develop an integrated sense of their own identity that rejects the stark dichotomy of bleached out professionalism between personal identity and professional role. The visibility and access associated with being a president—even of a small minority association—increased his stature both inside and outside his firm. Those black attorneys who have managed to achieve this integration have been able to rise within the profession while at the same time continuing to hold the bar and the country as a whole accountable for continuing inequality between blacks and whites.
Each of these lessons from the experiences of minorities and women—that bleached out professionalism stigmatizes lawyers who are different from those who created existing professional norms, discourages identity related innovations in professional practices, and deligitimates the kind of integrated self-consciousness that promotes individual growth, collective organization, and service to others—has important implications for the success of global law firms. Lawyers from around the world who are increasingly being brought together in US and UK law firms with global ambitions are unlikely to work efficiently together if some believe that they are stigmatized for beliefs and practices that they consider to be intimately connected to important aspects of their national or legal culture. Similarly, firms with global ambitions will be less likely to respond to the rapid changes that increasingly characterize the global marketplace if they discourage innovation by lawyers from other cultures who disagree with the firm’s often taken-for-granted policies and practices. Finally, the fact that firms too often fail to allow associates and partners to develop an integrated sense of their own identities plays an important role in the growing problem these institutions.
The Real Rules of the Tournament of Lawyers
The basic structure of the modern large law firm has remained the same for more than a century. A large number of associates are hired directly out university. After a period of time—during which they are expected to demonstrate their commitment to the firm—the firm selects the ‘best’ of these young lawyers to become partners. Those who are not selected are let go or, in rare circumstances, allowed to stay on as ‘of counsel’.
The structure is often analogized to a ‘tournament’ in which associates compete on an equal playing field to demonstrate their abilities with the top performers selected for partnership. It is this image of the large law firm—as an efficient, professional, and meritocratic institution that best serves the needs of lawyers, clients, and the public at large. This image, however, masks important structural biases in the manner in which the competition for partnership takes place. Given the pyramidal structure of most elite firms—a small number of partners at the top supported by many associates at the bottom, particularly in the junior tiers—good work and mentoring will inevitably be in short supply. Contrary to the ‘survival of the fittest’ rhetoric of tournament theory, therefore, success in large law firms is less a matter of innate ability and hard work (most of those who get hired by elite firms possess these qualities) and more a function of gaining access to valuable, but limited, opportunities—opportunities that are invariably mediated through relationships, and relationships of all kinds are invariably mediated by issues of identity.
There is now a substantial body of evidence in fields ranging from cognitive psychology to organizational behaviour that people tend to favour people who are like themselves when reaching subjective evaluations about “merit.” Given that most lawyers in large law firms continue to be both white and male, particularly at the partnership level, this unsurprising but nevertheless powerful tendency means that minorities and women are less likely to gain the kind of important opportunities and encouragement that give them an incentive to invest in building a long-term career in the firm. The result of this vicious cycle is that women and minorities are much more likely to leave their law firms after only a few years than their white male peers.
Global law firms must work to ensure that lawyers from all backgrounds feel that they have a fair chance to succeed within the context of organizations whose traditional boundaries are being remade by changing career patterns. At the core of this effort must be a willingness to redefine both cultural norms and established organizational structures. Law firms must move beyond the implicit belief that there is only one way to be a ‘true’ professional. Just as women and minorities have chafed under a law firm culture from which they have felt excluded, lawyers from around the world are unlikely to work efficiently together if some feel that they are stigmatized for beliefs and practices that they consider to be intimately connected to important aspects of their national or legal culture.
Firms that encourage their associates to explore relationships and build opportunities outside the firm will expand the firm’s network of potential relationships when these lawyers leave to pursue other opportunities. Indeed, firms that actively discuss career options with their associates may actually reduce the pressure that young lawyers currently feel to leave a law firm after only a few years for fear that staying longer may decrease their lateral mobility if either they or the firm decides that they are not likely to become partners. In the last analysis, however, none of this will matter unless firms are willing to move beyond traditional patterns of work assignment and promotion that increasingly limit opportunity to an ever smaller percentage of new associates. Needless to say, breaking free of these established structures will be difficult. But innovation in times of crisis is the key to survival.
Once again, attention to diversity is critical to this process. Large law firms are less likely to respond effectively to the rapid changes that increasingly characterize the global marketplace if they discourage innovation by those who believe that existing structures and practices do not allow them to express their own individuality or creativity. Firms that fail to acknowledge this truth will continue to find that their lawyers are alienated from their work, isolated from crucial sources of development and support, and prone to seek more meaningful careers at the first available opportunity.
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