Kate Reder Sheikh of Major, Lindsey & Africa discusses ways law firms can continue to act in the face of anti-DE&I efforts through pipeline programs and other measures.
Diversity, Equity & Inclusion (DE&I) wasn't born in 2020, but it certainly became a strategic priority for law firms driven by the birth of the Black Lives Matter movement and the coverage of the protests across the country. Anti-DE&I efforts, combined with layoffs, are causing a backslide in 2024. There is a present risk that firms will fail to bring in and retain lawyers of color at the improved rates that we have seen since 2020.
There has been measurable progress over the last few years when DE&I has been a priority at firms. In 2023, NALP reported that people of color had climbed from 2.14% of partners to 12.01%, the highest level since they started tracking in 1991 (https://bit.ly/3VRwShT). That's still a very low number, but progress is progress. At this point, the least firms can do is try to maintain the current improved statistics. Ideally, they will look to do more than that — to build upon the momentum.
There is real cause for concern. A recruiter with a significant following on LinkedIn, Bryson Malcolm, posted (https://bit.ly/3PWbrZg) that he combed through data to find that, in a recent round of layoffs, overall associate headcount was reduced by about 15%, white male headcount was reduced by 6.5% and person of color headcount was reduced by 21%. It appears that layoffs in BigLaw often disproportionately impact associates of color.
This is an extremely complex problem, and there isn't a one-size-fits-all solution. So much of it is not in the hands of law firms — anti-DE&I efforts began winding their way through the courts in a post Students for Fair Admissions landscape, and some pipeline programs have given up.
BigLaw loves an elite school, so if students of color no longer have the same access they did before to these schools, how do we continue apace? How do we stop the bleeding?
The legal industry is not powerless here. Rather than freeze in the face of these headwinds, firms can take action. One major solution is pipeline programs.
A pipeline program is for students of color and from other underrepresented groups interested in law school. Through these programs, students are provided with mentors, scholarships, education about what majors to pick, summer programs in high school at top colleges, access to support writing admissions essays, and mock LSATs. Some are based at specific law schools (and funded by firms). Others are independent, virtual, and nationwide.
For the firms, these programs are not low-cost; firms that participate invest capital in return for a likelihood that these talented associates will come their way later, as well as the knowledge that they are doing something proactive to diversify the profession. For prospective and aspiring students, the programs are free to attend if the student qualifies. They are reaching students as early as middle school, to show them that a top 5 law school is accessible to them, and giving them guidance throughout to get there.
These pipeline programs are a total lifeline. The data also show (https://bit.ly/4cOYtX1) we need to reach attorneys of color early on: Nearly half of Black law students said they decided they wanted to go to law school before entering high school.
Without pipeline programs, students of color have systemic hurdles that make it harder for them to get into top law schools and into BigLaw.
And if associates of color can get into top schools despite having extra hurdles to jump, and continue onto BigLaw firms, there is a whole swath of current challenges that make staying there harder — economic stability, fear of layoffs, and potentially an environment that doesn't show them a path forward. In particular, NALP reports that only 4.86% of partners are women of color. For a career where some associates are billing north of 2,500 hours, it's hard to hang in and trust the process when nobody who looks remotely like you is assigning you work.
These pipeline programs are a big part of the way forward. Pipeline programs are generally not for profit. Many of them have always been on a shoestring budget; that will build into more of an issue as assaults on the mere concept of DE&I continue. This is a place where firms, many of which saw surging profits and PEPs in 2023, can invest. This is an earnest investment in the future. Any given firm making a sizeable (and public) contribution to a pipeline program will stand a greater chance of landing this talent down the road, and will receive applause from the market. It's a win-win.
We know that companies are increasingly doing away with or investing less in the Chief Diversity Officer position (https://bit.ly/4aKIszQ), but DE&I teams have been extremely valuable — in terms of bringing in and retaining diverse talent, in terms of bringing attention to teething issues in the industry, and in terms of educating partners and leadership.
It is important to have a robust DEI strategy that is built into an institution, so that it is not as easily dismissed or disregarded. For example, Davis Wright Tremaine has built and embedded a strategy that cuts across the firm, with four pillars of Community, Growth, Education, Engagement, according to Chief Diversity, Equity, and Inclusion Officer, Yusuf Zakir. He also notes that nearly 40% of associates are racial/ethnic minorities — an increase of 6% over the last three years.
DE&I teams need a few things to be successful and to continue to raise awareness internally, raise the firm's profile externally, and to support lawyers of color in their ranks. These DE&I professionals need access to the management committee and firmwide managing partners. They need budget. Having a hamstrung DE&I leadership may be almost as bad as having none at all.
If we can agree (as I hope we can) that clients are better served by a more diverse BigLaw workforce, now is the time to double down on pipeline programs and internal DE&I teams at firms. The path without them is very murky. Hopefully in retrospect this is a speed bump, but without our intervention we're on a dire path in terms of seeing more people of color rising in the ranks at BigLaw firms.
