The Origin of the Legal Industry’s Diversity Problem

The law profession isn’t in denial about its lack of diversity. So, what’s stopping change from occurring?

After decades of attempting to increase diversity and inclusion within the legal industry, minority lawyers now make up a record 16 percent of law firms, according to research by the Minority Corporate Counsel Association (MCCA). But that doesn’t mean lawyers should pat themselves on the back for shattering their reputation as one of the least diverse professions in the nation.

In the seven years between 2009 and 2016, the percentage of women in law firms climbed by less than one percent, and the percentage of minority lawyers inched up by two percent. Minorities are scarcest at the top: only 9 percent of law partners are people of color, the MCCA reports. Add gender to the mix and the numbers are even bleaker: women of color represent 13 percent of associates but less than 3 percent of equity partners.

Nearly half of white associates make partner, but the vast majority of minorities do not.

Minorities in the corporate world face similar challenges. The Washington Post reports that only 11 percent of general counsels at Fortune 500 companies are black, Hispanic, Asian, or Native American. At the nation’s 500-largest companies, 57 general counsels are black, the Post reports. And while that is a 50 percent increase from a decade ago, progress has stalled in recent years.

Women overall have fared slightly better in their attempts to climb the legal ladder, but “better” doesn’t translate into a level playing field. The American Bar Association (ABA) reports that women comprised 30 percent of the legal profession in 2007, and by 2017 that number had only increased by 5 percent. Women make up 45 percent of law firm associates, but only represent 20 percent of partners and 18 percent of equity partners.

Once again, the situation is worse for women of color. White women comprised 19 percent of attorneys serving on law firm executive and management committees at the end of 2016, compared to less than 3 percent for women who identified as minorities, the Post reports. More than 22 percent of general counsels at corporations are now white women, while only 5 percent are women of color.

Two decades later, the numbers have barely changed

The disparity becomes even starker as we dig deeper into the numbers. While the statistics vary slightly among reports, the findings are always the same: despite at least two decades of focusing on diversity in the legal profession, progress has been woefully uneven and slow—and overall, the numbers have barely changed.

Four percent of active attorneys identified as African-American in 2007 and 4 percent identified as Hispanic, the ABA reports. A decade later, those numbers had only climbed to 5 percent each—despite African-Americans and Hispanics comprising 13.3 and 17.8 percent of the U.S. population, respectively.

But while Hispanic attorneys are the most underrepresented minority among law firm attorneys, it’s worth noting that they have also made some of the most consistent progress. The MCCA report reveals that their numbers have steadily increased at all levels and they are more likely to make partner at their firms than Asian or African-American lawyers. They also have the lowest attrition rates.

But for other minority groups, the report was far less encouraging. The MCCA states that law firms are hiring fewer black attorneys than they did before the recession, and black lawyers leave their firms at a higher rate than other minority groups. Its report contradicts the ABA statistics and asserts that black attorneys make up just over 3 percent of the law profession—a slight decline since 2007.

Asian-American lawyers are the largest minority group at law firms but the most underrepresented in firm leadership. The MCCA reports that there are now more Asian attorneys than Hispanic and black lawyers combined, but only 20 percent of them are partners. That’s compared to 27 percent of African-Americans, 31 percent of Hispanics, and 47 percent of whites.

Diversity in the law: are law schools the problem?

The reasons behind the law profession’s diversity problem are hotly debated. Many trace its origins back to law school. Only 30 percent of current law students identify themselves as minorities, according to a Fast Company report, and over the past two decades that proportion hovered around 20 percent.

At the elite law schools that offer the best path to a prestigious career, the percentage of minority students remains far lower than other schools. The same holds true for women: while female law students outnumbered males for the first time in 2016, only six of the top 20 law schools had even half-female student bodies.

On average, minority students wind up at lower-ranked law schools and have lower bar-exam-passage rates than non-minority students. The biggest reason: minority and underprivileged students generally post lower average LSAT scores than white and wealthier test-takers, even when other methods of measuring their abilities failed to show a difference, according to a report in The Nation.

Some blame the LSAT discrepancy on expensive test preparation courses that underprivileged students can’t afford, and others point to a hidden racial bias in a test that calls for analyses that could be viewed differently by people with different backgrounds.

But no matter the reason, students with low LSAT scores have a tougher time earning merit scholarships, which can make the cost of law school daunting. Faced with the prospect of an average law school student loan debt of $122,000 and a shrinking number of jobs available for first-year associates, many minority students are failing to see the value in a legal career.

More causes for concern

Some analysts say the roots of the legal profession’s diversity problem go even further back, and are planted with unequal opportunities for underprivileged children. Many inner-city schools struggle to afford the same programs as school districts supported by more affluent communities, and their students often don’t have access to outside resources, tools, and support that keep them focused on their future. Without a strong educational foundation, law school entrance and success slide out of reach.

The negative distractions and trauma that are more prevalent in these communities also impact children’s ability to perform in a scholastic setting, according to a Twin Cities Diversity in Practice report. Far too often, these students need to be convinced that becoming a lawyer is a career goal that’s within their grasp.

For those who do become lawyers, unfair treatment within law firms and legal departments chase many minorities out the door. The voluntary attrition rate of minority and women attorneys is 61 percent and 42 percent higher than that of white men, respectively. The most oft-cited reason these lawyers leave: they believe they were given fewer opportunities for advancement.

The low levels of minority leadership can make it difficult for minorities to find mentors and fight off preconceived biases. For instance, the ABA report states that Asian attorneys can suffer from the stereotype of having hard skills that great lawyers need—such as being hardworking, logical, and careful—but lacking the soft skills that can make them great partners, such as client development.

“To the extent that mentoring and networking are conditioned by perceptions of sociability and conformity with cultural norms, Asian Americans may face particular obstacles rooted in stereotyped perceptions of being foreign, socially awkward, or unassimilable,” the ABA report states.

Even when intentions are good, law firm leadership doesn’t always comprehend the extent of the hurdles minority lawyers face after they are hired. Training is needed to help partners and general counsels think more broadly about how to truly be an inclusive leader, becoming aware of implicit bias and employing strategies to create an environment that’s more welcoming to minority groups.

Lawyers making concerted efforts to create change

Earlier this year, 170 general counsels threw their weight behind diversity efforts in an open letter to law firms: “Improve Diversity or Lose our Business.” Their push comes three years after a similar call to action from the ABA: the passage of Resolution 113, which called on clients to direct a greater percentage of the legal services they purchase to diverse attorneys.

The law profession isn’t in denial about its diversity problem and has made some concerted efforts to create change. Diversity committees that include senior partners are becoming commonplace, and more than 30 percent of law firms employ a dedicated diversity professional.

Many lawyers are broadening their recruiting efforts, instituting unconscious bias training, and implementing the Mansfield Rule, which requires at least 30 percent of candidates they consider for new positions to be women or minorities. In fact, more than 65 firms are currently participating in the Mansfield Rule 2.0, which broadens its definition to include LGBTQ+ attorneys, adds consideration for participation in client pitches, and requires participating law firms to make their processes for appointment and election transparent to all their lawyers.

An increasing number of law firms are also participating in high school pipeline programs, aiming to increase diversity in the legal industry by investing in minority youth. Programs such as the Silicon Valley Urban Debate League are credited with changing the trajectory for many participants—increasing high school graduation rates, getting them excited about legal careers, and teaching them how to create a path toward college.

But while these are all good steps, the legal industry still has little to be proud of in terms of results. Too often, lawyers talk about diversity but ease into complacency with the status quo when their focus is diverted to other matters.

There is no single “right” way of creating change. Lawyers need to continuously commit resources to achieving true diversity and inclusion within the legal profession. Diversity doesn’t just mean hiring a few minorities for a practice group or department. It means solid efforts to increase the number of minorities in law schools, law firms, legal departments, and professional associations. And it means continuous training that provides lawyers with greater awareness of issues like bias in the workplace—and the steps they can take to eliminate it.

The legal industry is full of bright minds and well-intentioned individuals, and law firms with diverse legal teams will gain a competitive edge. Change can happen with a committed effort.

Carrington Legal Search is committed to providing a diverse pool of candidates for each of our searches and we proactively maintain a pipeline of diverse candidates. Want to insure that you are meeting your diversity goals? Let Carrington do the work for you. To make our nationwide network work for you, get in touch at 512-627-7467 or email carrie@carringtonlegal.com.