“Systemic racism impacts black lawyers in many ways,” says Ellisen Turner, partner at Kirkland & Ellis in Los Angeles.
“During oral argument, black lawyers are interrupted by the bench more frequently than other lawyers. And at least on a first encounter, they are, consciously and subconsciously, considered less intelligent or less capable than their equally credentialled, or even less credentialled, counterparts.”
When you put it like that, it’s no surprise that Turner and others want to see lasting change in the legal industry, including in IP, and for black lawyers to be adequately recognised.
The killing of George Floyd, an unarmed black man, by a police officer in Minneapolis last month sparked widespread protests both in the US and internationally that have called attention to the racism many people of black heritage face every day.
And the legal industry, including the IP sector, also faces problems when it comes to the struggles with racism.
As a partner at Kirkland – one of the best-known and most profitable law firms in the world – Turner has reached close to the top.
But he is acutely aware that many will not reach that level.
Not only is black representation in IP law not good enough, black lawyers are often overlooked, Turner says.
Diversity statistics published by the American Bar Association (ABA) show that little has changed in the past ten years.
The ABA’s most recent Profile of the Legal Profession, an annual report of the gender and ethnic make-up of the legal industry (not just IP) in the US, shows that nearly all ethnic minorities are underrepresented compared with their presence in the wider population.
The figures are particularly damning for African American lawyers.
According to the 2019 edition, 5% of lawyers are African American, whereas African Americans make up 13.4% of the US population.
The figures are unchanged since 2009, but one caveat is that less than half of US states choose to report data.
Turner says the consensus is that the global recession of 2008 caused more black lawyers to lose their law firm positions than those from other groups, and that the numbers have never truly recovered from that.
He notes that this could happen again as firms begin to take austerity measures in response to the predicted recession caused by the COVID-19 pandemic.
Mareesa Frederick, partner at Finnegan in Washington DC, says firms not only need to recruit more black law students but to encourage black associates to remain in the profession once they join a firm as a qualified lawyer.
Mentorship programmes could help in this regard, she says.
“Black junior associates would greatly benefit from being sponsored and mentored by senior associates and partners. This would help them navigate the ups and downs of working at a law firm, which at times can be stressful. If they are given that support early on, nurtured and guided on what to expect, it will help improve retention.”
Male, white and grey-haired
Finding the right mentor, however, can be challenging.
Frederick says: “Senior partners, many of whom are white males, naturally seek to mentor those who look similar to them or who remind them of themselves. This is not an issue that is unique to law. It is human nature for people to stay within their comfort zone.”
Turner says many talented black lawyers may be passing under the radar because of racism – which has spread unconsciously and consciously into the work environment.
He notes that black lawyers often struggle to break into networking and business development groups.
“Business development is almost entirely based on networks and contacts. Systemic racism causes people to both intentionally and unintentionally self-segregate to homogeneous groups, both in the people they were close with in school and the networks they maintain in their career. Black lawyers are often left out.”
Like Frederick at Finnegan, Eldora Ellison, director at Sterne, Kessler, Goldstein & Fox in Washington DC, says black lawyers should be mentored but also educated on the “unspoken rules of the game” – something which, in general, they miss out on.
She describes these rules as a “catch-all term” that, while including networking, also focus on aspects not discussed openly such as how to navigate internal or external politics and power struggles, how to carry yourself, dress, speak and command a room, and how to respond to aggressive or passive-aggressive behaviour by others.
Because black lawyers fail to break into networking groups, lawyers tell us, they are often overlooked in favour of the “tried-and-tested” lawyer, who is more often than not male, white and grey-haired.
Turner at Kirkland & Ellis adds: “A handful of black patent litigators have been lead counsel on major matters in the past, but given their success it’s surprising that they don’t get these opportunities much more often. The talent is out there, so there is no excuse.”
He explains that instructing companies often say that they did not know that equally capable, experienced and leading black lawyers existed so opted for a familiar face instead.
“Once you are in the cycle of only using the faces you know and are familiar with, it’s hard to achieve diversity,” he adds.
Progress not enough
Joe Drayton, a partner at international firm Cooley in New York, says the overall representation of black IP lawyers in the US is not where it needs to be, but is much better than when he entered the profession in 1997.
From that time, he can only recall two prominent IP lawyers at major firms: Dan Johnson, from Cooley, and Errol Taylor, at Milbank.
However, like Turner at Kirkland, Drayton recognises that black lawyers often miss out on “big-ticket” litigation.
“We can increase the prominence of black IP lawyers by giving them the opportunity to work on critical matters for important clients. Our clients can demand it, and law firms can commit to staffing important cases with black attorneys.”
He adds that when law firms invest in and take a chance on black IP lawyers, good things happen for clients, including them benefitting from a diversity of experiences in areas like preparing witnesses, formulating a trial story and relating to jurors.
The UK experience
Daniel Alexander, an IP barrister at 8 New Square in the UK, says there are still some reasons to be positive.
Unlike in the US, the UK litigation profession is split between barristers – who lead cases in court – and solicitors, who instruct barristers and manage a case.
According to the Bar Standards Board, the regulator for barristers in England and Wales, the percentage of black, Asian and minority ethnic (BAME) barristers has increased by 0.6 percentage points since December 2018 to 13.6% (as of January 2020). Those from black/black British backgrounds account for 3.2% of barristers overall.
The proportion of BAME solicitors working in law firms is 21% (as of March 2020), according to a report by the Solicitors Regulation Authority. In total, 15% of those lawyers are Asian, while black lawyers make up just 3% of the total.
Though these statistics are not specific to IP, organisations like IP Inclusive are committed to encouraging more ethnic minorities to enter, and grow in, the IP industry. The initiative’s progress, as well as that of IPReg, the regulator for patent and trademark attorneys in the UK, has been documented previously.
Alexander notes that in patent cases in particular – where the pool of candidates who have the required technical knowledge is already very low – one would probably “only expect a handful of diverse candidates” to emerge within that framework.
“At the moment there are probably one or two at partner and senior level, so there is more to be done, but I don’t think the situation is completely bleak. You have to be realistic and look at the overall number of people who meet the requirements to manage this kind of work.”
He notes that exposure before the courts may have a slightly different impact in the US. Most US IP cases are decided by a jury, often made up of a fairly representative group of people, whereas a specialist judge will hear disputes in England and Wales.
“I’m not saying the jury would be necessarily swayed by seeing a black litigator leading the case, but they may like to see more diverse advocates. Here it is less important as you are only in front of a judge and one who is already very familiar.
“I don’t believe conscious or unconscious bias comes into it – the subject matter is so technical to the point that judges are only truly interested in the arguments presented,” he says.
Giving black lawyers more exposure is a laudable aim, but how does this happen in practice?
Turner at Kirkland says that instructing counsel should do more but so should law firms that compile their diversity statistics.
He notes that when seeking external private practice lawyers, in-house decision makers may ask for a diverse team but tend not to pay too much regard to the roles within that team.
“They rarely focus on diversity at the lead lawyer level, and some companies focus on diversity across all their matters, rather than on each matter, or on their major matters. This allows the legal industry to respond by merely having black lawyers somewhere within a team, perhaps only at the lowest levels.
“That is important, but fails to give more black lawyers a chance to become well known, build a business and advance their career,” he adds.
Frederick at Finnegan agrees.
“In-house counsel can help improve diversity by demanding law firms staff their matters with diverse teams and give diverse attorneys meaningful roles. Many companies already require this. In-house counsel should serve as mentors for young black law firm lawyers to serve as a resource and offer different perspectives on their legal career.”
She adds: “Building a ‘book of business’ is also an area that black lawyers may need support with to ensure they are getting the opportunity to connect and build relationships with in-house attorneys.”
Organisations including the Leadership Council on Legal Diversity, made up of corporate chief legal officers and law firm managing partners, link diverse in-house counsel with outside counsel and help them build relationships.
Adraea Brown, chief trademark counsel at Harley-Davidson in Milwaukee, adds: “Companies have to hold firms accountable for what true diversity and inclusion looks like – which includes ensuring that the diverse attorneys are working on matters.”
Alexander at 8 New Square notes that the NextGen initiative – a programme designed to encourage young and diverse talent to lead on litigation – can help improve the diversity of legal teams managing cases.
At the end of last year, an all-female team – consisting of barristers Charlotte May QC and Lindsay Lane QC – led a patent case for the first time at the England and Wales High Court as a result of the NextGen programme. The barristers led Apple to victory in the dispute, Conversant v Apple.
This, says Alexander, also stemmed from technology companies’ desire to instruct a more diverse pool of candidates and not the tried-and-tested white male.
Although focussed primarily on young and female lawyers, programmes like NextGen could also target diversity. Alexander notes that a by-product of focussing on junior teams may be that more diverse candidates emerge.
Drayton at Cooley adds that to earn the opportunity to be lead counsel, lawyers must also demonstrate a record of effectively handling major litigation including at trial. To do this they need opportunities to prove themselves in the courtroom as early as practicable in their careers.
“These skills are not easy to develop in law firm settings, where cases often settle prior to trial and where all IP lawyers seek the same experiences,” he notes.
He says he was part of a trial team in his first year as a lawyer where Dan Johnson (then of Cooley) was the first-chair trial lawyer for a co-defendant. “It was great to see a prominent lawyer who looked like me; it materially contributed to my vision of success.”
Diversity data skewed
Turner at Kirkland and Brown at Harley-Davidson agree that while diversity statistics are important, they can sometimes fail to paint an accurate picture.
Any lawyer who belongs to an ethnic minority (including Asian, Hispanic or black) is often recorded as though they belong to one data set. Sometimes, Turner and Brown say, that set also includes other underrepresented groups, such as white women.
“That’s not to say that data for those other underrepresented groups is not worthy or is less important, but to get a more accurate picture on whether the industry is truly inclusive and improving, we should see more data directed to specific groups,” says Turner.
Alexander agrees that diversity statistics can be easily manipulated.
“In the England and Wales judiciary, for example, if you look deeper at the overall diversity statistics it might be that the Sikh and Jewish communities are particularly well represented when compared with the Afro-Caribbean community, which is probably larger overall [than the other two ethnic groups].”
When these statistics are broken down by class and educational background, further discrepancies may be found, he notes.
“When you begin to remove these filters you realise that diversity statistics can be skewed.”
Brown at Harley-Davidson says a focus on highlighting black IP lawyers would be very beneficial, particularly in the mainstream legal publications.
“We are here, but we’re often not showcased,” she says.
Turner at Kirkland agrees.
Specific information on the leading black IP lawyers, for example in directories or in lists of top lawyers, should be compiled so that companies that are keen to employ diverse lead lawyers can find exactly who they are looking for.
Frederick at Finnegan says those who compile the lists should always request feedback from a broad range of people. “If you ask a greater cross-section of society, you are likely to get a broader range of recommendations for inclusion,” she says.
Kingsley Egbuonu, research editor for Managing IP’s IP STARS publication, says: “I recognise that legal publications have a role to play here. We have publications and events to help address the issue of diversity and inclusion in the legal industry, but we’re always looking for ways to do more.”
He adds: “IP STARS ranks individuals on merit. We urge firms to tell us about all their high-performing IP practitioners and their work to help us look into them. The challenge, I think, is whether there are enough ethnic minorities at a senior level position in the industry.”
It will take time for society and the wider legal profession to truly understand the struggles faced by black lawyers. Biased behaviour such as using familiar faces may not be as stark as the racism displayed in the killing of George Floyd. However, the negative impact on equality cannot be ignored – and must be reversed. If we can at least try to discuss potential solutions, we may see progress in the years to come.
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