Law firms have dedicated a great deal of focus to increasing diversity, but many are falling short on enacting meaningful changes to improve equity and inclusion. That undermines retention efforts, and causes law firms to continue falling short of moving the needle.
Additionally, some in the industry have noted, it creates a dynamic of tokenism which can alienate people from underrepresented groups. As Michael Coston, CEO of Coston Consulting, put it, “diversity without inclusion is tokenism.”
While this can take many forms, often in law firms it manifests in the positioning of a diverse attorney to a client matter in order to assuage their concerns about the diversity level of the team working on their matters—even if that lawyer is already spread thin on other work, or even if this matter is not a logical fit for their expertise.
There’s one obvious driver for firms’ tendency to rush the process, prioritizing diversity on paper over meaningful inclusion: Clients want diverse outside counsel working on their matters.
“We’ve heard from countless in-house counsel that there is often a bait-and-switch that occurs from the initial RFP process to when they see the first bill and the team who is doing the work,” Caren Stacy, CEO of Diversity Lab, said in an email. “Billing data often shows that the outside counsel team is not nearly as diverse as the pitch materials indicated or the diverse individuals are doing low-level work without much visibility to and interaction with the client.”
Yusuf Zakir, the chief diversity, equity and inclusion officer at Davis Wright Tremaine, said the problem takes many forms, and it’s prevalent.
“Tokenism can exist in any space where there is underrepresentation,” Zakir said in an email. “And at every law firm in the Am Law 100, including Davis Wright Tremaine, there is some level of underrepresentation, whether it is in a group or in an office or even firmwide.”
The Human Cost
Many firms may not be aware of this problem, or its effects on the lawyer who gets pushed onto these teams.
“When we think about tokenism, we are focused on the organization and not so much the danger to the individual attorney,” Coston said. “The token knows they are the token, and they often suffer from imposter syndrome because of this. There is also a target on their back for performance, or not, which is worse.”
Law firms continue to struggle not just with recruiting diverse talent, but fostering their growth into leadership potential or a successful individual practice. Alienating that diverse talent, deliberately or not, becomes all the more costly.
“The emotional stress of being the only one, due to lack of community, is real,” Coston said.
Grasping the weight of that stress can be a challenge for those who haven’t felt it.
“I would not be surprised if there is some degree of ignorance to the fact that a person is the ‘only’ on a particular team or group,” such as the only woman, only person of color, only woman of color or only LGBTQ+ person, Zakir wrote in an email. “A firm may not realize, understand, or appreciate the impact felt by the person or people who are underrepresented.”
Aside from that problem, there’s also a practical consequence of staffing up a matter with people who aren’t the right fit for that work, Coston noted. He said it hurts attorneys who are not “in the room”—those who would be better suited for that work if demographics were not a consideration—and cause friction between colleagues.
“That creates a lack of trust, care and belonging,” Coston said. “The token doesn’t win, the tokened group doesn’t win, and the firm doesn’t win and suffers from a false sense of diversity. It just creates these roadblocks.”
Those roadblocks erode trust in DEI efforts. Instead of becoming enmeshed in the firm’s fabric, these initiatives are relegated to a project that needs to be undertaken.
“When you are not looking at it from an asset or value proposition perspective, that this person is coming in to be a cultural addition, you aren’t looking at it that deeply and you are just checking a box,” Coston said.
However, that’s not to suggest that law firms should stop aiming to staff diverse legal teams.
What Needs to Happen
What remains unchanged is that clients want diverse outside counsel teams—in theory, that’s good for the clients, the firm and the industry. In practice, it can be done without causing problems if it’s done more organically.
That starts, according to Coston, well before the client team is put together, and it touches on questions of inclusion rather than diversity.
“If we are talking about pitch teams: What is [the diverse attorney or attorneys’] role, how are they influencing the pitch process and is this person positioned to do the work in connection with the new potential matter or client,” Coston said. He said firms must ask whether “we are creating space and opportunity to share in power.”
Stacy, of Diversity Lab, said it’s crucial that diverse attorneys assigned to a client matter have a purpose for the assignment other than just being there. That leads to more meaningful work, the product of which is more likely seen by the client.
“That visibility and regular interaction is a make-or-break career advancement opportunity for lawyers,” Stacy said in an email. “So it’s paramount that diverse lawyers have equal access.”