A report published last week by litigation funder Burford Capital revealed that in-house lawyers felt more diversity in their litigation teams gave them an advantage in court, especially for matters before a jury.
Yet, the report revealed that in-house counsel don’t always manage to get diverse teams to represent them. Unsurprisingly, they are not happy about that.
In the survey, 23% said they had directly asked a law firm they had instructed to include a woman or racially diverse lawyer on a litigation or an arbitration matter.
The number may not seem too high. But that’s only because in-house lawyers said they felt uncomfortable dictating to law firms how they should staff litigation matters.
It isn’t hard to find firms that boast about their diversity pledges. So why do in-house counsel still have to ask firms to include diverse lawyers on the teams that represent them?
The answer may not necessarily be because firms aren’t serious about their diversity pledges.
At least, I hope that’s not the case.
However, firms should take a closer look at why their efforts to make their teams more diverse do not appear to be working.
Actions matter
I’d like to wholeheartedly believe that firms keep diversity in mind while recruiting lawyers at all levels.
But do they also take measures to ensure that those diverse lawyers get enough opportunities to climb up the ladder, particularly those who join as juniors or trainees?
I fear the answer is no.
I’m also unsure if firms are doing enough to ensure those diverse lawyers stay in the firm for the long term.
In the Burford Capital study, the general counsel for a food company noted that getting diverse groups in the door is not the problem – it is retention at mid-level.
“There are not enough diverse professionals to staff a team or to first-chair a trial,” the general counsel said.
Others in the study also pointed out that it could be difficult for diverse lawyers to break into the “inner circle” at law firms, as many practices are reluctant to change a system that works.
Even if a firm hires diverse associates at a junior level, not many of them may feel comfortable enough to stick around.
Many firms act in a way that can be perceived as counterproductive to their diversity objectives.
Earlier this year, I wrote about DLA Piper allegedly firing a female intellectual property associate, Anisha Mehta, after she put in her request for maternity leave.
At that time, counsel for DLA Piper had said the firm stood by its decision to fire her and looked forward to presenting its case in court.
Mehta, who is of South Asian descent, was allegedly refused an opportunity to defend the allegations that led to her dismissal.
Last year, former Kirkland & Ellis IP litigation associate Zoya Kovalenko filed a lawsuit against the firm alleging that she was paid less and treated unfairly compared to her male colleagues.
In August this year, Kovalenko successfully defended her case before a California court against the firm’s attempt to dismiss her claims.
More recently, Sidley Austin allegedly fired a female associate after she published her stand on the ongoing Israel-Palestine conflict, which has resulted in the deaths of thousands of innocent people.
The firm had asked Melat Kiros, the associate in question, to take down her post, but she refused to do so.
In the post, Kiros asked US law firms, including her employer Sidley Austin, to reconsider a letter signed by them earlier this month that was addressed to deans of various law schools.
Instances like these, particularly those involving Mehta and Kovalenko, could make diverse members of law firms feel that they matter less than the dominant voices at those firms.
That’s a precarious stand for law firms to take when in-house counsel have been very clear about wanting more diversity in the teams that represent them.
Identifying biases
It’s not difficult to understand why in-house counsel want more diversity, especially if they feel that diverse legal teams work in their favour when in front of a jury.
During a recent conversation with a senior in-house counsel in the UK, she said she prefers to work with diverse external counsel because she wants the firms she works with to share her company’s values.
For other in-house counsel, it’s more personal than that.
An in-house patent counsel at a large US company recently told me that being an openly gay Asian lawyer, it was very important to him to work with teams that have representatives from minorities.
In-house counsel, understandably, may not want to work with firms that don’t share their values.
In fact, one associate general counsel responded to the Burford Capital survey by revealing they had removed a firm from their panel for a lack of diversity.
I understand that law firms may sometimes find it hard to get rid of unconscious biases or get out of their comfort zones, which is why diversity initiatives may not always work despite their best intentions.
It is up to firms to identify those biases and see how they can get past them.
A good place to start would be ensuring diversity not only in hiring but also retention. This can be done by creating favourable work environments and equitable opportunities for diverse lawyers to climb the ladder.
Firms must also ensure that their actions don’t unfairly affect minority groups.
That can only happen when minority lawyers don’t feel like they are unfairly treated compared to their majority counterparts.
For now, in-house counsel hold all the cards, and they must keep pushing firms to put forward diverse teams irrespective of how uncomfortable that conversation could get.
