Ed. note: Please welcome Richard S. Amador to the pages of Above the Law. He’ll be writing about effective strategies that can be used to further diversify the legal profession.
Many law departments are revisiting efforts to diversify their outside counsel ranks by getting more lawyers of color on their cases. A plethora of benchmarking tools, carrot-and-stick models, and consultants abound. Many such activities require significant budgets or structural changes that can be hard for a law department to implement when already being asked to do more with less.
Below are three Big Ideas and numerous tactics to fill the gap with simple, practical steps that can be implemented from the Chief Legal Officer to the most junior associate counsel, in any size law department. The three Big Ideas: (1) Identify and empower diversity champions in your law department; (2) Foster direct interaction with promising diverse lawyers in your space; and (3) Celebrate wins.
These ideas are based on more than 30 years of practice, most of which have been leading my own law firm while representing Fortune 500 companies and mentoring scores of minority attorneys mainly at large national law firms and in junior in-house positions.
BIG IDEA ONE: Identify And Empower Diversity Champions In Your Law Department
Candid conversations with GCs, Biglaw partners, and minority law firm owners — corroborated by even a cursory look at the data — lead to the inescapable conclusion that plans, policies, metrics, and mandates haven’t made much difference in the past 30 years. What matters most are champions — lawyers committed to improving diversity regardless of their rank.
I’m not talking about people whose job is “diversity.” I’m talking about working lawyers at your company with matters to handle or deals to close, who are compelled to make a difference when it comes to diversity and inclusion efforts. In a small law department, you may be the only diversity champion. In a larger group, it might be someone at the lowest levels of the hierarchy, or a deputy GC. The important thing is that these are lawyers responsible for selecting or working with outside counsel. Ask your lawyers who is interested in making a difference. You may already know who they are, but you may be surprised, so ask everyone; not all your champions will be diverse, but diversity will be personally important to each of them.
Your diversity champions can be put to work immediately. Task champions with acculturating new minority outside counsel, who will be unfamiliar with your corporate bureaucracy, traditions, and personalities. Having a champion guide new diverse counsel through these initial hurdles will increase their likelihood of successfully representing the company. This, in turn, will smooth the way for other colleagues in the law department to use these diverse outside counsel and to try new minority counsel themselves.
Urge your champions to coach these minority attorneys on your company’s approach to risk, how to navigate the billing process, and the best way to provide information in the form your business leaders prefer.
Next, encourage your champions to request minority partners and associates on their cases, and then to request them on key motions and depositions. Many of the minority associates I mentor are told by their supervising partners that you, the client, don’t want them to take depositions or argue motions. And yet, miraculously, I’ve perhaps twice in the past 10 years had a Fortune 500 client demur when I tell them my associate is ready to take this deposition or argue that motion. Don’t assume your relationship partners are grooming their minority associates; if it’s important to you, insist.
Also, encourage your champions to give real feedback to minority partners and associates. Numerous studies show that minorities get less substantive feedback than their white counterparts; instead, they are allowed to repeat mistakes until they are cut loose. Tell your minority counsel when they mishandled a communication or made a bad judgment call so that they can learn. Coach them on upcoming difficult conversations — just as you would your prized protégé.
On law firm pitches, encourage your champions — and model this behavior — to call out a lack of diversity and explicitly identify it as one of the reasons for rejection when appropriate. If necessity requires selection of a non-diverse team, insist that it be diversified going forward. When a team of lawyers appears for a pitch with a single diverse associate who has no apparent role, include that person in the Q&A and then pin down the lead attorney on exactly what the diverse associate’s role will be and how their experience will be maximized. Hold the firm to the commitments made.
Champions are also important because, frankly, someone on your team may see a minority partner in a major law firm, or a minority-owned law firm — regardless of pedigree, record of success, and efficiency — as a “diversity hire” to be tolerated with the least important work and as little of that as possible. Champions and successes can help diverse outside counsel avoid a rocky start and have a real opportunity to prove their worth.
I’ll address below how to magnify the effect of your diversity champions by getting them out into the legal community. But the Big Idea here is to identify and empower the diversity champions in your department, and then capitalize on their success to increase the use of minority outside counsel by the rest of the department. If you’re the sole champion, give yourself license to act, as many of the suggestions below require no budget or policy changes. If it is three lawyers among your 200-lawyer group, empower those three to be champions and check-in with them regularly on how they — and the law department — can do better.
Regularly seek feedback from your diversity champions, not just on the selection of outside counsel, but on how to do better and what the institutional barriers are to getting more work to trusted minority lawyers. So many diversity “strategies” come from consultants, legal operations people, or vague high-level corporate directives. Still, the people best positioned to help find success for your law department are your internal champions.
BIG IDEA TWO: Foster Direct Interaction Between Your Law Department And Promising Diverse Lawyers In Your Space
Many in-house champions have heard this frustrating refrain from a colleague: “I worked with a minority partner/firm/associate once, and it was a disaster, so I’m hesitant to try again.” Leaving aside the absurdity of such a broad conclusion on such a narrow sample size, if you can establish a track record of success, bringing others on board to using minority outside counsel will be much easier.
You’ve heard the phrase “unconscious bias.” Several studies show that decision-makers tend to give non-minority women and men the benefit of the doubt (e.g., mistakes happen, I see a lot of potential here, or she just needs some guidance) but none to minorities (e.g., I knew this wasn’t going to work, this just isn’t up to our standards, or we should never have hired him in the first place). Your champions are less likely to succumb to these biases. And while the bar should NOT be higher for minority counsel, it is. Thus, finding counsel who are demonstrably superior can help gain acceptance for others.
So start with the best, both in ability and client service. How to find them? Start with peer referrals. If you already have a few great diverse outside counsel, ask them for referrals as the top pros in any field tend to know one another, at least by reputation. Ask the leadership of legal diversity organizations for referrals to those with the best reputations. The National Association of Minority and Women Owned Law Firms (NAMWOLF) has a great search tool for finding stellar minority- and women-owned law firms — all of whom already represent companies like yours and have been thoroughly vetted for quality and reputation — right on its website. The exceptional NAMWOLF staff will even pre-vet firms with specific qualifications you request.
But to maximize access to talent outside your network — and more importantly, build relationships with that talent — the best investment you can make is to get your lawyers actively engaged in organizations filled with highly qualified minority outside counsel, such as MCCA, NAMWOLF, NBA, NAPABA, HNBA, NBA, CCWC, and CMCP (search online with the acronym and “diversity,” and the organization will pop right up). Your company probably supports multiple legal diversity organizations. And while that financial support is crucial to the organization, buying a table or an ad doesn’t help diversify your law department or outside counsel ranks.
Law departments that excel in diversifying their outside counsel ranks (as well as internally) send their lawyers not only to join but to actively participate in organizations.
The model for this strategy is Walmart. For at least 20 years, the company has made it a priority to get lawyers from across the law department actively involved in legal diversity organizations like those listed above, building relationships with potential employees and outside counsel alike.
High-ranking minority and non-minority lawyers in the Walmart law department have served on the boards, advisory boards, and operational committees of these organizations. This engagement provides meaningful support to the organizations, but more importantly, an avenue to work directly with minority outside counsel in the activities of the organizations. Prudential, McDonald’s, Allstate, Honda, Accenture, Nationwide, Microsoft, and several other companies have made this a priority as well. Such engagement builds foundations of trust that are readily transferrable to engaging these lawyers as outside counsel based on having seen them in action — running meetings, speaking at events, leading volunteers, and handling conflict.
Perhaps your company is one that pays for a maximum of two or three conferences a year. Consider allowing an extra legal diversity conference if the lawyer will commit to active involvement and reporting back on it. You can also manage the involvement to ensure that at least one member of your team is actively engaged in each of the major legal diversity organizations.
As you and your champions connect with the best diverse lawyers, introduce them to your team through webinars, meet & greets, and CLE. Do some of your go-to law firms do regular CLEs? Ask them to secure at least one minority speaker for every hour of content in all internal CLEs. Suggest that when your champions are asked to speak at conferences, they advocate for your promising diverse outside counsel be speakers as well.
As you assemble a roster of outstanding minority attorneys, ask your champions, “Who are the best of the best?” And then personally meet with those rock stars representing your company to ask: “How can we retain other diverse counsel of your caliber? How can we help you build your business? How can we help you develop rock star minority associates and junior partners in your firm?”
For high-potential minority associates, ask the relationship partner how you can help the associate make partner. Then ask the associate. For exceptional minority service partners, ask how you can help them develop business — such as by inviting them to events, to speak on panels, and referring them to peers.
Does your company offer secondments? Insist that your team not select anyone until they have made a concerted effort to recruit a stellar minority secondee. Consider offering mini-secondments of a few weeks where minority associates can work on internal projects and have an opportunity to build relationships while getting a view of their client’s job from the other side.
Let me tell you about my friend Rafael. He was Managing Counsel at a Fortune 500 company, overseeing employment litigation throughout the country. Several levels below the GC, he led a small team of employment lawyers. Rafael was deeply committed to the twin goals of finding the best possible outside counsel for his company and legal diversity; he saw no conflict between them. He made it a point to meet as many diverse lawyers as he could, always looking for the best; he wouldn’t settle for less.
Rafael was particularly fond of the National Employment Law Council (NELC), which is comprised of experienced management-side employment lawyers of color. He served on committees, raised funds, and served on the board. And he was always asking for recommendations, then checking with others, “What do you think of this lawyer?”
Over several years, Rafael recruited a diverse team of enormously talented in-house lawyers and a pool of equally talented outside counsel — some at minority-owned boutiques, some at the leading white-shoe firms, some at regional shops, and some at the large employment-law-only international powerhouses — all at the top of their games. If Rafael met and liked a minority associate at a national firm he was using, he’d request that associate on his matters or for a secondment. If you were new representing the company, he’d coach you through your initial representation. If it were your first trial for the company, he’d get you valuable visibility with decision-makers. And if you won for him, which many of us did, he’d make sure everyone knew it — both inside and outside his law department.
The key takeaway from Rafael’s experience is that he never settled for second-rate, only working with outstanding lawyers who delivered both great results and exceptional client service. He knew the difference between perceived quality and actual quality — and always focused on the latter by constantly seeking references and gauging for himself without preconceived notions. Rafael passed away last year and left in his stead a team of diverse lawyers at the company inspired to carry on his legacy, as well as a deep bench of highly skilled diverse outside counsel with a proven record of success representing one of the pre-eminent brands in the world. He achieved the goal that every law department claims it wants, all without formal programs, surveys, metrics, hackathons, or consultants.
BIG IDEA THREE: Celebrate wins!
When a minority partner or associate wins a case or key motion, or is instrumental in a transaction, sing the praises of that specific lawyer, and your law department colleague who provided the opportunity. Tell leaders both in the law department and the firm specifically how your outside counsel effected the win.
Celebrate minority associates by telling partners that you want to work with the associate again, and specifically requesting the associate when new matters arise.
Encourage champions to reach out to managing partners and practice leaders with kudos for stellar work by partners and associates. Ensure that company leadership knows which diverse lawyers and diversity champions — inside and outside the law department — are making the company look good, saving money, closing deals, or winning cases. Others will see that making a difference in this space increases career-enhancing access and may wish to follow suit.
Invite your best minority outside counsel — from junior associates to partners — to meet with law department leadership and your diversity champion(s), so you can both celebrate their wins and help them strengthen their client relationships. Indeed, celebrate the wins of both your internal champions and their outside counsel. This affirms to the entire department that the champion’s behaviors are valued by leadership and that the outside minority counsel meets your standards of excellence, results, efficiency, or other paramount markers.
When you have appreciable success, toot your corporate horn by seeking legal diversity awards so that others may emulate your success. And demonstrate the internal value you place on diversity progress by name-checking, promoting, and financially rewarding your diversity champions and sharing within the department that their success in diversifying your outside counsel is one of the reasons you have done so.
Ask your best minority outside counsel if they are receiving origination credit, how you can help them do so, or otherwise gain stature in their firms or legal community.
When you speak at conferences, name-check your minority outside counsel who are present. This makes your company and law department look good, and it helps position your outside counsel as leaders in their field.
Finally, I don’t mean to say that you should only use pre-eminent minority lawyers. There are many unheralded associates and partners with exceptional skill, or who show promise but just need some guidance or exposure. The Big Ideas will help you find those lawyers, maximize the opportunity for them to be successful both as your counsel and in their firms, and make a real difference in the diversity of our profession. I’ve seen it happen many times, but always because a specific person made it their priority to be intentional about championing others.
These suggestions are based on my own experience, and should not be ascribed to my firm, its clients, or my colleagues. Over the past three decades, I’ve served on the boards of the National Association of Minority & Women Owned Law Firms (NAMWOLF), Minority Corporate Counsel Association (MCCA), California Minority Counsel Program (CMCP), and National Employment Law Council (NELC). I actively mentor over 200 young attorneys of color, including associates and junior partners at small, regional, and major national/international firms, and junior in-house counsel in a wide range of industries.
Richard S. Amador is an employment and business trial lawyer. He founded 15-attorney Sanchez & Amador in 1994. A Fellow in the National College of Labor and Employment Lawyers, Richard serves on the Executive Committee of the National Employment Law Council (NELC). Richard is a founding faculty member of the NELC Academy, an advanced-skills training program for minority junior associates practicing management-side labor and employment law. He has previously served on the boards of the Minority Corporate Counsel Association (MCCA) and the National Association of Minority and Women Owned Law Firms (NAMWOLF). Richard actively mentors dozens of law firm associates and junior partners, as well as junior in-house lawyers of color, at companies and major law firms across the U.S.