The emerging diversity standard
“Honestly, if I hear the excuse ‘there aren’t enough diverse candidates out there’ one more time, I will get seriously fed up because it’s baloney.”
Ruby Zefo, chief privacy officer at Uber, had stern words when asked about the failure of some law firms to meet the company’s diversity, equity, and inclusion targets.
But Zefo’s views represent the no-nonsense attitude of many in-house counsel when it comes to the corporate world’s impatience with law firms that lag in their diversity commitments.
Brands and their external counsel are under mounting pressure to prove their commitment to change.
The current landscape
The good news for the legal sector is that the cohort of summer associates at U.S. law firms in 2021 was the most diverse ever recorded, according to the 2021 Report on Diversity in US Law Firms published in January by the US-based National Association for Law Placement (NALP).
Both the percentage of summer associates of colour and the proportion of LGBTQ summer associates reached historic highs, at 41.3% and 8.41%, respectively. In addition, women made up more than half of all summer associates for the fourth consecutive year, according to the report.
“There has been a renewed focus on recruiting diverse candidates, which has been a big challenge in the past,” notes Jean Lee, CEO and president of the US-based Minority Corporate Counsel Association (MCCA).
“One major positive aspect of the Mansfield Rule is that it is well-known. Companies and law firms can equally garner excellent results through the creation of their own programs or approaches.” - Ruby Zefo, Uber
But the flipside is that change is not happening fast enough as levels of diversity continue to lag at more senior levels.
The NALP report showed that in US law firms, in 2021, just 22% of equity partners were women and only 9% were people of colour, only a slight gain compared to the previous year at 21.3% and 8.1%, respectively.
The report analysed attorney race/ethnicity and gender information for more than 102,000 partners, associates, and other lawyers in 877 offices, and for nearly 6,700 summer associates in 528 offices. It found that only slightly over 4% of all partners are women of colour, while Black women and Latinx women each continue to represent less than 1% of all partners.
As Lee observes, for law firms that are excelling in diverse recruitment at the entry level, there can be further obstacles when it comes to inclusion and retention.
“The question is how to get these candidates to stay long enough to ensure they make partner or another leadership position,” she says.
In the UK, the picture is slightly better for women. Women make up 35% of partners in the UK, but only 8% of them at the largest UK firms are Black, Asian, or of ethnic origin, according to diversity information released in February 2022 by the UK Solicitors Regulation Authority, which is based on data supplied by more than 8,700 law firms employing more than 180,000 people across England and Wales.
The Closing the Ethnicity Stay Gap report published in 2020 by Rare Recruitment, a UK diversity recruitment specialist, confirmed that ethnic minority lawyers stay on average 20% less time at a firm than their white counterparts.
Further, 84% of lawyers from minority ethnic backgrounds told Rare that they had experienced “implicit racism” at the firms they had worked at, leading to their decision to either leave or consider leaving.
As Raphael Mokades, Rare’s founder and managing director, notes: “The psychological impact of such microaggressions on an individual can be damaging and long-lasting, particularly if there are no clear steps an employee can take to report and resolve the situation. Instead, they leave.”
The arabella effect
To effect change, many brand counsel and their law firms are embracing DEI initiatives—either their own models or the well-known Mansfield Rule. Diversity Lab, a US incubator for innovation solutions that promote DEI in law, created the rule in 2017, naming it after Arabella Mansfield, the first female lawyer in the US.
The Mansfield Rule requires participating law firms and brand legal departments to show year-long progress in increasing diversity in senior recruitment and leadership decisions, as well as consider a minimum of 30% diverse candidates for such roles. Once a company meets the commitments, it becomes Mansfield certified.
The Diversity Lab has confirmed that more than 160 large law firms in Canada and the US are participating in the Mansfield Rule process, which is now expanding elsewhere with a new pilot in the UK involving 12 law firms.
“In my experience, previous programmes that were designed to promote DEI were often launched with a great deal of fanfare lacking in accountability and transparency.” - Lisa Kirby, Diversity Lab
According to Lisa Kirby, Diversity Lab’s chief inclusion and equity officer, the rule has been a game changer for the legal sector.
In her view, previous programmes that were designed to promote DEI were often launched “with a great deal of fanfare but lacking in accountability and transparency,” and were not measured or reported on regularly.
“Although well-intentioned, they failed to change people’s ingrained behaviour. In addition, most previous DEI programmes were focused on individuals rather than systemic changes,” she said.
The Diversity Lab’s research showed that, of the firms that have adopted the Mansfield Rule since 2017, 94% reported that their internal candidate pool of lawyers who pitch clients for work had become more diverse, and 76% said the same of their equity partner promotions pool.
In addition, 92% reported an increase in formal diversity discussions regarding succession planning for leadership and governance roles, and 85% increased formal discussions for lateral partner hiring.
Almost 57% of participating firms elected or appointed a higher percentage of diverse lawyers into managing partner roles.
Notes Kirby: “The success of firms using the Mansfield Rule, as demonstrated by these metrics, highlights the advantage of an intentional, long-term commitment to these principles combined with the accountability of the certification process.”
The culture of collective knowledge sharing embedded in the Mansfield Rule has also supported these firms in establishing and maintaining new foundational talent practices.
“These practices and the discipline associated with the 30% consideration metric have generated and will sustain these firms’ continued progress,” she adds.
As Uber’s Zefo explains, brands now expect external counsel to demonstrate that they have adopted effective DEI initiatives to guarantee more diverse teams. Uber itself achieved Mansfield Certification in 2020 after completing the Mansfield Rule: Legal Department Edition certification programme.
DEI has emerged as one of the top performance metrics that Uber uses to evaluate its outside counsel on an ongoing basis, and it runs a questionnaire every 12 to 18 months relating to the firm’s hiring and promotion practices.
It also demands that diverse attorneys staff any matter the firm works on for the company. Uber then uses this information to select about 25 firms to direct most of its legal business.
“These initiatives can make a difference, if everybody is on board with change,” Zefo says.
And she cautions: “If not, the law firm could end up without some of its biggest clients, because brand counsel is insisting on better DEI. And if they can’t comply, then they obviously are at risk of losing the account. This is bad news for law firms because having a big-name brand as a client attracts other large brands.”
IP Inclusive, a UK organisation founded by Andrea Brewster to promote greater diversity in IP, has a dual approach in place. It has its own methods and has welcomed the introduction of the Mansfield Rule in the UK during 2021.
While still in its early days, the IP Inclusive Women in IP Committee will be meeting soon with Diversity Lab to talk more about the UK rollout and how IP Inclusive can help, confirms Brewster.
According to Kirby, while it is too early to meaningfully measure the impact of the Mansfield Rule in the UK, the firms have already participated in several knowledge-sharing calls with robust exchanges of ideas and best practices. They have also had to apply the 30% metric to their hiring and promotion processes.
“That has already made a difference in their consideration process,” she says.
Hogan Lovells is among the dozen firms that signed on to the pilot programme. The firm adopted the Mansfield Rule to ensure that its candidate pools for senior leadership positions and critical activities, such as lateral recruiting, pitching to clients, and certain governance activities, include significant percentages of underrepresented lawyers, explains Burkhart Goebel, the firm’s managing partner, Intellectual Property, Media, and Technology.
While this is currently a UK initiative, he hopes that the firm’s international offices can adopt similar measures.
“We work with firms to broaden our pool of candidates and have instructed our preferred search firms globally about the importance of presenting diverse partner candidates,” Goebel adds.
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