This is the last in my Future is Now: Legal Services 2.017 conference wrap-up posts. I am incredibly grateful to all of the speakers who shared their perspectives with a packed audience last month.
Another theme that emerged from the day—both in the speakers’ talks and in the town hall discussions—was the importance of diversity to the future of the profession. Participants were urged to think about diversity through different prisms, both structural and personal.
Considering the Business Case for Lawyer Diversity
Dennis Garcia, Assistant General Counsel at Microsoft, set the table for the discussion in calling the current makeup of the legal profession a crisis. Statistically, 64 percent of the profession is male and 88 percent is white. In diversity and inclusion, the legal profession trails other professions like engineering, accounting, and medicine. Dennis challenged the audience to move forward and look at ways to improve diversity and inclusion.
Bringing to mind a business case for diversity, Dennis cited a McKinsey research study showing that a company with a racial and ethnically diverse workforce is likely to outperform its competitors by 35 percent in terms of financial returns. While diversity includes the traditional areas of race and gender, it can and should also include different styles of leadership and communication.
Our profession faces disruption like never before. Noting the exponential rate of change affecting society generally and lawyers in particular, Dennis argued that transforming to this newer environment requires “diverse and outside perspectives and experiences.” By having outside perspectives, you will learn more as a team and be able to provide better services to your client.
Dennis laid out a few tangible pieces of advice for us going forward. First, the tone needs to be set at the top. CEOs and leaders need to be champions of diversity, and tying part of their compensation to achieving diversity and inclusion metrics can ensure responsiveness. Second, while it’s great to hire diverse attorneys, an atmosphere must be created for those to grow and remain in the profession, which can be done through training or mentorship. Third, measure what you are doing to advance diversity because measuring something will naturally lead to improvements over time. Finally, be bold and creative in pushing forward.
During a town hall discussion, Prof. Henderson expanded on Dennis’s point about creating an atmosphere for diverse lawyers to remain in the profession. He noted that the current assignment system in the law firm business model affects diversity of the workforce. Bill analogized the law firm assignment system to Malcolm Gladwell’s point about hockey players excelling based on their birth-dates or baseball players gaining early “at bats.” The point is that the better and more frequent opportunities one receives, the more natural or gifted or talented they appear. The more natural one appears, the chance to make partner increases.
Unfortunately, the current assignment system encourages partners to assign work based on who is similar, or based on who is a “better fit.” This propensity, exacerbated by unconscious bias, undermines efforts to increase law firm diversity. Bill argued that a structural change to the work allocation system can spread these sought-after experiences, incentivizing newer diverse professionals to remain in the game.
Considering a More Personal Case for Diversity
Another aspect of diversity comes from generational differences. We now have four—maybe five—different generations in the workplace. Both Darth Vaughn, Partner & Director of Legal Service Delivery at Haight Brown & Bonesteel, and Nicole Auerbach of Valorem Law discussed the folly of making assumptions about how diverse generations approach the notions of work.
As I mentioned in a prior post, Darth talked about the importance of lawyers gaining technological proficiency as an ethical requirement of competence. But another aspect of his talk warned the audience about falling for the “myth of the digital native.”
Darth pointed out that many lawyers hire young people, assuming they have the technological competence to provide basic technical help and troubleshooting to the older lawyers in the organization. The problem here is that, although millennials were born in the Internet age, there is a stark difference between consuming technological content and actually using it to solve real-world problems. Yes, millennials consume more digital content than the prior generations; however, they have not necessarily been trained to use technology—and not to the extent that is required for lawyers to maximize the impact of their work and comply with their ethical duties.
Darth cautioned that the positive stereotyping of millennials leads lawyers to implement faulty strategies when complying with their duty of technological competence. Technology is not a talent and it’s not always intuitive, so we must slow down to speed up. Technology is a tool that we must understand how to use. Simply associating with a millennial is not the answer. But a tailored focus on competence-based learning may be.
Building on Darth’s cautionary tale about making generational assumptions, Nicole Auerbach recognized the forthcoming role of Generation Z in the legal profession, noting that while they may not be here yet, they will be very soon. Nicole premised her theory on Generation Z’s main characteristic, which is their extreme intolerance toward things that don’t match their desired lifestyle. And herein lies the rub.
Currently, the billable hour model dominates the profession. Nicole criticized this model because it “disproportionately impacts anybody who has responsibilities outside of the workplace that requires an expenditure of time.” Women, minorities, and young professionals depend on billing hours to drive their compensation. When you have competing interests that take time, when time is finite, a natural conflict emerges. Nicole argued that the lack of diversity at the upper echelon directly results from this inherent conflict of needing to be in multiple places with limited time, which drives people out of the legal workforce.
Outside of the industry, creativity and efficiency traditionally remedy this type of conflict. But the profession’s billable hour model doesn’t reward creativity and efficiency, instead, harkening to Prof. Henderson’s talk, the model punishes it. Being efficient rewards you with more work, not less. We have this backwards.
The success of Valorem Law Group and industry trends suggest that Nicole’s way of thinking is correct. Throwing out the billable hour model and replacing it with new revenue structures like alternative fee arrangements, second opinions, and after-action assessments allow you to keep a diverse workforce (so that you can keep your clients) and retain young professionals (who are not afraid to pick up and move firms or industries if unsatisfied).
Lawyer diversity can be achieved if we are willing to leverage technology and think outside the box. I agree with the idea advanced by several speakers that achieving diversity is broader than considering only other races or genders. We need to foster environments open to diversity of thought and perspectives gained through life experiences, sexual orientation, age, status, cultural background, etc. The lawyers who figure out how to value intangibles like quality, experience, and results will remain competitive and relevant to our changing world of clients.
The Commission’s legal intern from Northwestern Pritzker School of Law, Tommy Heiser, contributed to this post.