Diversity and inclusion initiatives are deciding factors when businesses choose their external counsel, according to in-house lawyers.
Sources say that many patent departments are widening their recruitment and development nets to give opportunities to more people from different backgrounds, and they expect law firms to make similar efforts to ensure their patent attorney teams are more varied.
They add that while their priority is to get the most qualified and skilled lawyers for the job, diversity initiatives often make law firms stand out from their competition.
“Diversity does not drive our decision on which law firms to hire, but it is definitely a tie-breaker,” says Howard Lee, chief IP counsel at Sun Chemical in the US. “The concept comes up [in tendering] more than you might think.”
He adds that most law firms are indistinguishable from each another because of the nature of legal services and that the truly exceptional practices are few and far between.
It is difficult, he adds, to whittle down a list of 50 firms to 10 that the company might want to work with in the tendering process; knowing that a firm hires more female or BAME people or has a better inclusion programme than another makes it more appealing.
Lee says that this consideration also applies when a business scales down its outsourced help. His company cut the number of law firms it worked with several years ago, and kept working with one practice because it had more female attorneys.
The patent director at a global pharmaceutical company tells Patent Strategy that the most important driver in choosing a law firm is its ability to get the work done fast and well. She says that as such, her firm understands that law practices want to put their best people forward for a job, even if they are white men.
But she adds that it is disappointing how often law firms fail to demonstrate diversity even at the pitch stage.
“Diversity for diversity’s sake does not work,” she says. “But I am honestly shocked at how often lawyers come to a pitch with all white guys.”
"When I see a good senior associate, I’ll tell the partner that I want them to run this deal"
The patent director adds that some law firms follow bait-and-switch tactics where they boast about how diverse they are and introduce the business to different employees from different backgrounds, but in fact compose the team of the same types of people once they have won the work.
“But lots of firms don’t even do the bait and switch – they are just bold enough to come into the pitch with all white men,” she concludes.
Neer Gupta, associate general counsel at Verizon in the US, adds that a varied team is also a tipping point for his business when it comes to choosing external counsel.
“If a law firm walks in with five people who all look the same – and it doesn’t matter what they all look like – that is going to hurt their chances,” he says. “Law firms need to bring in people at different levels who think differently and have different points of view. That will help them.”
Anna-Lisa Gallo, associate general counsel at water technology company Lixil in New York, says her company is similarly looking at the makeup of the external attorney teams it works with, and trying to influence better hiring policies at those practices.
There has been a strong push within the global legal community to address some of the diversity and representation issues in law firms and legal departments.
Earlier this month, the US Federal Contract Compliance Program’s director Craig Leen told legal industry representatives that his organisation is concerned with how firms are dealing with the low number of women, minorities and minority women at partner level.
International law firms Simmons & Simmons and Gowling WLG reported this week that their female partner intake is 40% and 60% respectively. Companies such as Dell, Adidas and Marvel have also recently committed to stronger diversity and inclusion initiatives.
Upping diversity
In-house sources say that despite the competitive benefits of diversity, few law firms have adopted adequate initiatives – and where they have, they often do not meet expectations.
The pharmaceutical patent director says good diverse senior associates can be hard to come by in law firms because they often pay lip service to diversity and inclusion and do not incentivise them properly.
The director of IP at a fintech developer in San Francisco says that when law firms brag about their diversity numbers, they often present a final patent team that is not reflective of those statistics.
He adds that he understands that there may be a pipeline issue when it comes to patent attorneys, because women and minorities are often dissuaded from choosing science, technology, engineering or mathematics (STEM)-focused subjects in lower or higher education, and are thus prevented from entering the profession.
But more in-house patent managers are becoming sceptical of this pipeline argument. Gupta at Verizon says he does not buy into it because there are numerous young associates at his company who would be considered diverse.
Counsel say that they are even starting to use their influence as clients to improve diversity and inclusion in law firms. Lindsey Kelly, vice president at Roivant Sciences in New York, says in-house counsel have a responsibility to champion diversity when dealing with private practice counterparts.
“When I see a good senior associate, I’ll tell the partner that I want them to run this deal,” she says.
Lee at Sun Chemical says there was one occasion where a law firm team he worked with was made up of a male managing partner and an associate, and a female associate. But the female associate had the technical expertise and was doing most of the work, while neither the male associate nor the managing partner was adding much to the process.
“I told them flat out that they should give all the work to her,” he says. “Clients have the power because if the law firm wants to keep them and the revenue stream they represent, they can get what they want.”
The pharmaceutical patent director adds that she experienced a similar situation where a firm won work from her company for an inter partes review (IPR) at the US Patent Trial and Appeal Board based on the experience of a female partner who had risen through the ranks under a male partner who had been supportive of her career.
But once the work had been won, two senior partners completely took over the action. She says that they likely did so because an IPR is interesting and prestigious work.
“We said that we did not want these two gentlemen involved with the IPR and that we would not pay for their time,” she says. “We pointed out that we had hired the firm because we wanted to work with this woman in the new IPR capacity and would not tolerate these senior partners coming in and taking over.”
She adds that partners have so much power over junior lawyers and it is up to clients to say that this kind of action is unacceptable.
Diversity and inclusion initiatives have long been seen by many law firms as tick-box exercises, but firms cannot afford to think that way anymore. Having a more varied team makes private practice firms more attractive to companies, especially those with increasingly diverse patent management teams.
Scooping up diverse talent might be hard for patent firms that hire trainees with STEM-subject qualifications that women and minorities often do not take, but patent managers’ patience for that excuse is wearing thin.
