Black History Month: ‘we may be unicorns, but we exist’
Cheslie Kryst was an attorney and Miss USA 2019. In the weeks before her tragic death by suicide in January, she posted a series of videos on the social media platform TikTok exploring why she no longer practised law.
Among the reasons she discussed was the lack of diversity and constant microaggressions she faced as a Black woman in the legal profession. While we may not have known her personally, Kryst’s words should resonate with each of us and serve as a call to action.
Racial diversity in IP law is far behind the “growth” in other sectors of the law. I have heard of minority IP attorneys, especially Black IP attorneys, often referred to as “unicorns” because of the lack of racial diversity in IP law.
According to 2019 data from the American Intellectual Property Law Association, only 1.7% of IP attorneys are Black. Asian and Pacific Islander attorneys make up 5.6%, while Latino attorneys comprise just 1.9 percent and Native American attorneys make up less than 0.1% (and no, that’s not a typo).
The percentage of women of colour practising IP law remains significantly lower, especially in patent law.
More patent agents named ‘Michael’
While there is limited intersectional data related to the combination of race and gender among patent attorneys, the American Bar Association revealed in 2020 that there are more patent attorneys and agents named “Michael” in the US than there are racially diverse women patent attorneys.
Improving diversity in IP law is not only important to those practising in the profession, but to innovation as a whole and to the creators and inventors behind advancements in science, technology, and the arts. With these stark numbers reported above in mind, what can be done, and what is being done, to increase diversity and inclusion (D&I) in IP law?
“I have heard of minority IP attorneys, especially Black IP attorneys, often referred to as ‘unicorns’ because of the lack of racial diversity in IP law.”
The road ahead is long, but the future is promising. Corporations, law firms, and even the government have recently increased efforts to improve diversity in IP law. These efforts, to name a few, include programmes focused on increasing the pool of women and minorities entering a field in science, technology, engineering and maths (STEM), re-examining the Patent Bar eligibility requirements, and corporate and law firm internships aimed at introducing minority law students to IP law.
While attracting minority candidates to the field is a vital step, more focus needs to be placed on retaining and developing minority attorneys in IP law.
The voice of corporate clients
Corporations appear to be leading the way when it comes to advancing growth and retention initiatives at law firms, challenging law firms to develop strategies that do more than pay lip service to diversity.
A number of corporations, including large tech companies with vast IP portfolios, have established outside counsel programmes that require their external law firms to have measurable numbers of diverse attorneys and, notably, policies for growing and developing minority attorneys, including sponsorship and succession planning initiatives.
When navigating these client-driven demands, corporate clients and law firms should be mindful of how client demands for diverse teams may affect minority attorneys in unintended ways, eg, staffing minority attorneys on non-substantive project tasks.
They should prioritise the long-term goal of developing attorneys when making staffing decisions and develop policies that support equal opportunities. These represent internal systems of accountability that can improve performance and help attract and maintain talented candidates of all backgrounds.
As the legal profession looks for ways to improve diversity and equity within its ranks, it is important to examine current approaches to achieving these goals and consider approaches that go beyond achieving target metrics.
For the legal profession to move the proverbial needle and achieve meaningful progress, we need to truly see the individuals behind the quotas and acknowledge and address the unique stressors faced by minority attorneys, including conversations about mental health and wellness in the context of diversity initiatives.
Mental health and wellbeing
Mental health and D&I are closely connected. Attorneys from underrepresented communities often face lack of representation, microaggressions, unconscious bias, and other stressors that impact their mental health and psychological safety at work. This undermines a culture of inclusion and adversely affects the experience and wellbeing of minority attorneys.
From the feelings of isolation that can come from a lack of diversity and repeated encounters of microaggressions, the experiences of minority attorneys are unique. D&I efforts should not be a one-size-fits-all solution. Instead, programmes that include holistic approaches to acknowledging and addressing the unique stressors faced by attorneys from underrepresented communities should be a key aspect of D&I initiatives.
For the legal industry to truly support attorney mental health and drive effective D&I strategies, we must approach D&I strategies with greater nuance, understanding and intention.
The progress being made in improving diversity in IP law has been slow and, frankly, frustrating at times. Yet, I remain hopeful about the progress and commitments being made by the legal profession on increasing and sustaining diversity in the profession. While this issue may seem too big for any one of us to solve, we can all focus on action and do things in our lives and the lives of others to make a difference.
We may be unicorns, but we exist and, importantly, we belong.
Theresa Conduah is a partner at Haynes and Boone in California. She can be contacted at: Theresa.Conduah@haynesboone.com.
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