Diversity Update
California Lawyer

Diversity Update

Presented by California Lawyer and the California Minority Counsel Program

July 2010

Despite the economic downturn, law firms and corporations are finding cost-effective solutions for maintaining - and even growing - their diversity efforts. Firms are also working to ensure the advancement of diverse attorneys through novel models for assigning origination credits, creating professional development opportunities for associates, and developing flex-time and work-life programs. Corporations are seeking outside counsel who provide meaningful roles for diverse attorneys on their teams, and companies are tracking diversity spending through e-billing systems and RFP processes.

Our panel of experts discusses these issues, as well as a corporation's role in promoting diversity in the legal profession, and the ways they are using their memberships to minority bar organizations. They are Bettina W. Yip of Del Monte Foods; Amarra Lee of Farella Braun + Martel; Darryl D. Chiang of Google; Cindy Faatz of Intel Corporation; and Neel Chatterjee and Alejandro Vallejo of Orrick, Herrington & Sutcliffe. California Minority Counsel Program (CMCP) Executive Director Marci Rubin moderated the roundtable, which was coordinated by California Lawyer and reported by Krishanna DeRita of Barkley Court Reporters.

Rubin/CMCP: Given the economic downturn, what diversity programs have your companies or firms maintained?

Chatterjee: We continue to have our internal affinity groups and other business development activities focused on diversity, but our diversity committee is trying to do things that are free or relatively low cost because you don't have to spend money for people to interact and support each other. We did have to do some across-the-board belt tightening, which forced us to focus on each other rather than the fanciness of the event. And from a diversity perspective, in many ways, it made it better. We do still have the high-cost items. The San Francisco Bar Association's diversity job fair is our landmark event - Orrick does the infrastructure and support for it - and we haven't stopped our support of that. In fact, we continue to support efforts to grow the job fair.

Faatz: We haven't made many cuts. Our activities are basically the same as before the downturn. We have both a corporate diversity organization and a legal diversity organization. On the legal side of the house, we've divided our efforts into an internal focus and an external focus. Internally, we generally look at advancement, retention, promotion, and development. For the external side of the house, we support the improvement of diversity in the legal profession through our support of local and national diversity organizations, pipeline programs, and maintaining diversity reporting guidelines for outside counsel. We are continuing those efforts. But because we are not doing much hiring right now, I do see some changes.

We have had a large diversity program related to hiring, networking, and collecting resumes for future opportunities, and we are now redirecting those resources toward the internal diversity programs for development, raising cultural awareness, and working on inclusiveness issues.

Lee: Farella hasn't cut any of its diversity programs. In fact, we've expanded our efforts in creative ways. We have a diversity scholarship that assists diverse and disadvantaged law students, and have awarded over $150,000. We also have our Pipeline Program, where high school interns come into the firm for six weeks, and we introduce them to the law, assist with their college applications, and help develop life skills.

Farella's also been focusing on strategic partnerships. We have a good relationship with the Bar Association of San Francisco (BASF), and a majority of our Pipeline interns come from BASF's Law Academy program. Farella attorneys have taught at Law Academy retreats for high school students, and we participate in BASF's Destination Law School Program, helping college students prepare for a legal career. Farella has also offered to share our Pipeline curriculum and components of the program with other firms that have high school interns. Internally, the firm has a diversity award that recognizes leadership and community involvement by a staff member, associate, and partner.

Chiang: We have a high concentration of people - on the order of 10,000 people - at Google's Mountain View campus, and the work force is quite diverse. The legal department has the highest concentration of women and minority lawyers that I've encountered in my personal practice. As a result, work on diversity issues happen through a more decentralized model; the company itself is structured in many ways like a university. For instance, there are a number of groups-the Black Googler Network and an Asian American Google Network, for example - that have their own initiatives and mentorship programs.

The human resources department also tracks diversity and has formal outreach efforts, including Google's Building Opportunities for Leadership & Development (BOLD) Diversity Internship Program for students who are historically underrepresented in the technology field. Some are placed in our legal department.

To the extent that the question relates to the downturn, we did have cost-cutting measures in 2009, but they didn't detrimentally affect the diversity efforts that we had, which are often grassroots. Because of the grassroots nature of some of these initiatives, you end up asking your direct managers for funding; they have a general pool of money and my perception is that it wasn't substantially hit by the downturn. We are now hiring and our budgets are up, so those efforts will see an upswing.

Vallejo: In some ways, the groups Darryl [Chiang] described at Google are analogous to the affinity groups we have at Orrick. They become a forum for exchanging experiences, ideas, and a venue for informal conversations. I've had great conversations with colleagues from other offices, whom I may not have met if not for the affinity group.

Yip: The Minority Corporate Counsel Association (MCCA) best sums it up: "Don't let your diversity efforts fall to the wayside while the economy is down. Doing so will force you to spend money reimplementing diversity initiatives later." This isn't the time to backslide on diversity. Our legal department is more diverse now than it's ever been. We have six attorneys; out of the six, four are diverse. We don't view diversity as a luxury that can be cut. We make sure diversity is inculcated into every aspect of our business, from our philosophy to all of our policies and processes. So the economy hasn't had an impact on diversity for us.

The most recent thing we've done to promote diversity is we've included flex-time as a diversity factor in our RFP process. We also have a summer intern who's part of the MCCA scholarship program.

Rubin/CMCP: Do any of you in-house counsel monitor diversity spending? If not, how do you ensure your company is hiring diverse attorneys? If you do track it, what incentives or accountability measures are in place?

Yip: We don't currently monitor diversity spending in terms of using, say e-billing systems, although we are moving in that direction. We are a smaller legal group, so we do monitor diversity, but not with the same tools that other companies use. That said, we do take a holistic approach toward looking at the lawyers who work on our cases, and we view them over time to make sure that they are the same diverse attorneys who are growing with our company. Everyone in our department understands how important diversity is and as a result, outside counsel knows that, as well.

Faatz: We do track diversity spending by looking at who the timekeepers are on our matters through our e-billing system and requiring our firms to report on team diversity statistics. It is also part of our RFP process to understand the diversity of the firms that we are considering - we include a survey as part of our RFP process. So we track how firms are staffing internally, and not just on our matters. That data is used to understand how firms prioritize diversity and it's another attempt to support improving diversity in the legal profession. One of the reasons we do track diversity spending is because we are a signatory of the Call to Action and we take that commitment seriously. We also have internal team leaders who manage each particular case, and who work closely with the firms to identify up-and-coming stars so that we can request that they work on our matters in the future. When we notice a diverse attorney who falls in this category, we want to make sure that they come back and work on our matters.

In terms of supporting diversity internally, it's also something that pervades our corporate culture, and we are cognizant of supporting diversity in our efforts around hiring, retention, advancement, and development. Internal efforts range from a variety of affinity groups, to programs related to mentoring, education, and human resources.

Chiang: Our outside counsel policy does include diversity as one of its components, but currently, our e-billing system doesn't track diversity by timekeeper in a formal way. Apart from HR's efforts, we address diversity by creating an internal and inherent diversity in the workplace so it's already on everyone's mind. So while the diversity policy is less formal than other organizations that I've worked for, it actually feels more effective at Google. Part of this is because our department is so diverse and part of this is because we have a large work force.

Rubin/CMCP: There are many diversity efforts out there, but unless you get the billing origination credit, it doesn't always translate to moving up the ladder. Do any of your firms have written guidelines for billing origination credit?

Lee: Farella doesn't track origination credit. Our goal is to get the work to the best attorneys for that particular client matter, and not allow issues of credit to interfere with the client's best interest and business goals. Instead, we assign the "credit" for a case to the individual that opens the case. This rewards the associate or partner that has the relationship and day-to-day contact with the client that served to bring the particular case into the firm. It's a model that works well because it keeps us younger attorneys motivated. Even if the client has been with the firm for a number of years and has worked with other lawyers, Farella values the relationships, hard work and rapport that I have built with the client to be trusted with a new matter.

Chatterjee: At Orrick, origination credits are shared between partners, or between partners and of counsel. For us, having dialogues with the practice group leaders and firm management is just as important as any origination credit metric because there's always more to the story and every client relationship is different. With associates, it becomes more complicated. The expectation is that if an associate played an active role in bringing in a new matter, we should write a memo about it to make sure that achievement is reflected in performance reviews.

Rubin/CMCP: If the billable credit is not the key to advancement, what else could be done to ensure that diverse attorneys move up the ladder?

Lee: I'm a fan of diverse attorneys attending client pitches. The best way to learn how to anticipate a client's needs and prepare pitch materials is by observing and doing it yourself. By introducing our diverse attorneys to key clients early in their careers and making sure that they get roles of responsibility to show off their talents, we are helping them climb the legal ladder.

Vallejo: Even when pitches don't lead to engagements, they are valuable learning experiences and give associates an opportunity to meet existing or potential clients. At the same time, they give clients a chance to meet the entire team working on their case.

Chatterjee: When it comes to advancement in a law firm, four things are important. The first is that an associate or young partner needs to plant their flag in the ground in terms of having a specialized skill. The second is to perform that skill in a visible way. The third thing - and this is where diversity really helps - is by going to affinity professional events and conferences, where you can profile your unique expertise to a market the law firm would not otherwise reach. The final thing is that inside the firm, it's very important to be a visible leader to those around you.

Rubin/CMCP: Thinking broadly, what role can corporations play in either mandating or encouraging diversity within law firms?

Chatterjee: Some of the nonprofit boards that I'm on send a letter to every board member that tells them where they fall in terms of contributions relative to everyone else: "Out of 25 board members, you are No. 6" on some important metric. Companies could go to their outside law firms with diversity metrics and issue a similar report that does not identify the other firms; it would only have to go to the relationship partner at the firm. If anything were to generate competition among law firms, I truly believe that something like that would.

Vallejo: I'd add that companies should just keep the pressure on. The quickest way to get a law firm to change is to have the client demand that change. Continued client insistence on getting diversity numbers, and a continuing demand for diverse staffing will motivate firms to move from lip service to action. And I would hope that companies hold law firms accountable and when necessary say, "I told you what we wanted in terms of diversity, and we didn't get it."

Lee: A number of firms have been following the examples set by their clients. For instance, if you have a smaller case with a company and want more business, you'll work to align your interests with that company. If diversity is important to the company, you'll emphasize your diversity efforts. If you haven't focused on diversity, the client's interests may enlighten you to consider participating in diversity efforts. The examples provided by clients can influence how law firms are structuring their diversity programs and how they are working with diverse associates.

Chiang: When I managed outside counsel, what seemed to be missing was a conversation between the relationship manager at the firm and the client to make sure that the firm really understands what a client needs and wants in terms of diversity, apart from hitting certain metrics. Firms often focus on the statistics, but they only tell part of the story. Some firms have a lot of minority associates, but they are different ones every year because they can't retain them. So numerically, they don't look bad, but the clients do get the sense that there's a revolving door.

Faatz: We also look for some continuity in the attorneys who work on our matters so that they can become experienced in working with us. Understanding our culture and our priorities makes everything proceed more efficiently and effectively.

Yip: Sometimes when law firms think, "Diversity is important to these companies, and they are focusing on metrics," they go for the quick fix. But they don't properly mentor diverse attorneys to make sure that they rise through the ranks to become partners, which is not something you can do overnight. So we don't just look at metrics; we look at our teams of lawyers who have worked on our projects over the years, and we do want to see the same people rising through the ranks.

Rubin/CMCP: Do you use memberships in minority organizations like CMCP? If so, how?

Yip: The members of my legal department are very involved in diversity organizations. We leverage the relationships that we develop in these organizations to hire and promote diverse outside counsel. For instance, when we do the RFP process, we often look through the CMCP lawyer locater and other diversity directories to make sure we have a diverse candidate pool. In terms of job listings, Del Monte has used the MCCA and Corporate Counsel Women of Color job postings list, and that's how I found out about my current position.

Vallejo: Orrick pays for memberships to minority bar associations. How these memberships are used largely depends on the individual, and many of us have become board members or are otherwise active in these organizations. As a firm, we also use the organizational memberships, both in terms of sponsoring and attending events, or collaborating with organizations to come up with new events, such as panel discussions.

Chatterjee: We'll pay membership dues, but it's far more important to us that people establish themselves as leaders in that group. We are much more willing to support the diversity organizations when members of our firm are actively engaged in them and they are improving themselves professionally and raising the profile of the firm and demonstrating commitment.

Faatz: We use the organizations a fair amount. One reason is to learn about best practices for diversity programs so that we can continue to evaluate what we are doing. We also like to participate in the programming and read the literature that's produced to see whether there's something we could be doing to reach a broader audience. Diversity organizations are also great for networking and for supporting diversity in the legal profession generally. When we are in hiring mode, it's a great place to meet potential candidates. We have also used job boards and attorney listings such as MCCA's Hot Jobs, and other similar resources. We've participated in CMCP's Corporate Connections program. That's been useful for some of our needs outside of litigation and to make connections generally.

Lee: Farella participates in a number of minority organizations because we realize the benefit of working with others that have similar goals for diversifying the profession. By working with these organizations, we become aware of new strategies to increase diversity, and of obstacles and solutions encountered by diverse law students, associates, and partners.

I am personally a member of a number of minority bar associations. I also work with the Legal Education Opportunity Program at UC Hastings and the Council for Legal Education Opportunity. Both assist under-represented students get accepted into and succeed in law school. I also facilitate a pipeline program to help Berkeley high school students excel academically and gain admission into college. The firm not only supports all of these efforts, it has celebrated them. I received Farella's diversity award in 2008.

Chiang: I've definitely felt very supported in terms of the company's commitment to giving us access to diversity organizations. But our department does value it most when an individual is active in an organization. From there, it's very effective for that individual lawyer to talk to our general counsel about supporting that organization, whether through buying a table at an event, donating money, or contributing silent auction items like lunch with Google's General Counsel. There is a premium for showing a personal initiative and commitment to a particular group or activity, which helps the company understand which organizations are the most important to support. And from an in-house perspective, I like to go to events for minority lawyers to get a sense of what people are thinking and to see who is in the community. But in terms of my decisions about whom to hire and whom to retain, that's ultimately a personal, stylistic choice that can vary from matter to matter.

Rubin/CMCP: What role do flex-time and work-life programs play in attorney retention?

Chatterjee: We have a number of different programs. We have a talent model, which moves from traditional lockstep advancement of associates to advancement based on acquisition of skills and competencies. It also provides opportunities to customize careers for those who desire an alternative to the partnership track. This model is unusual among law firms, and it allows for a lot of flexibility. We also have alternative work programs. But ultimately, I think we actually need to do things differently. Today, the conventional wisdom is to keep work and life separate. Instead, we should think about our work environment as an ecosystem where people work together and support each other. There are people I work closely with who have small children, or who need to do things at certain times of the day, and we cover for each other. It requires a high degree of communication about a lot of personal stuff. It is completely counterintuitive because people get nervous about bringing up personal things at work, but it's important to have that balanced work ecosystem where everyone is clearly communicating their needs and the other people on that team are willing to support them.

Lee: I'm in Farella's White Collar Practice Group, which has three partners and four associates. We each have a good relationship with the chair of that group. He knows about various commitments that members of his team have and he works diligently to accommodate us. He is always supportive of our professional and personal lives. His approach to supervision has made his team loyal, and willing to work harder and step up to challenges.

Rubin/CMCP: How would a law firm institutionalize this?

Chatterjee: Institutionalizing this mindset almost undermines the very diversity we seek to achieve. Everyone's leadership style is going to be different. The expectations of the practices are going to differ, as well. The people are also different.

Lee: You can't gain loyalty and camaraderie by institutionalizing this type of supervision. There has to be a certain level of trust between the associates and partners. It has to happen organically.

Yip: It's also generational. We haven't really talked about generational diversity in this discussion, but as Neel [Chatterjee] discussed this approach, it made me think of Gen Y, whose work and personal lives tend to blend together more, and who tend to be less private. So it might work with this new generation of lawyers.

Vallejo: This model also helps to mitigate the potential for unconscious bias because when people have more information about a colleague's circumstances, they are less likely to fill in gaps with unfounded assumptions. Whether or not you can institutionalize the model, one thing you can do is to help people realize that the potential for unconscious bias exists. Once you are aware of it, you are much less likely to engage in it.

Lee: I've also been reading about how alternative work arrangements can promote diversity, but there are negative connotations attached to them. A lot of the people who we are creating these programs for don't think to apply.

Yip: I left the firm a while ago, but I remember that people felt that if you participated in a flex-time program, you would get less desirable projects, or that you would actually be working full time while only getting paid for part-time work. Also, everyone knew back then that part-time programs were only meant for women because the perception was that if a male attorney did it, he would be laughed out of the office. That was seven or eight years ago. I would like to think that things have changed, especially since studies have shown that women and minorities are leaving firms in higher numbers, and part of this may be due to this lack of flexibility. That's why we added flex-time on our RFP's - to encourage outside law firms to not have this negative perception of it.

Vallejo: I hope there has been some evolution in the last few years, but there is still work to do at big law firms with regard to these programs. Unfortunately, a stigma remains. I recall hearing a pretty grim statistic: Minority associates are twice as likely as non-minorities to leave big law firms, and that number doubles again for female minority associates. A lot of these issues circle back to mentoring, which is such a difficult nut to crack, because you can't artificially create truly meaningful mentoring relationships. All you can do is create the opportunity for those relationships to occur, and hopefully some strong mentoring relationships will take hold. But good mentoring is key to the retention and promotion of diverse attorneys.

Faatz: Even part-time arrangements in-house can get the same negative reputation, or at least that was true in the past. Things have changed now, though. With young kids, I sometimes need to take advantage of the option to work a flex-time schedule and Intel is supportive of that. I can adjust my work hours as needed to accommodate demands on my time outside of work as long as I get my work done and my clients know how to reach me if they need to. That flexibility has been really helpful for me in maintaining a healthy work-life balance.


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