CBA Record January-February 2022

DICE: HistoryWill Judge BY NINA FAIN Advancing an Ethical Strategy Toward Authentic Diversity

A s Co-Chair of the CBA’s DICE (Diversity, Inclusion, Culture, Equity and Engagement) Com- mittee, I have observed an interesting phenomenon: suddenly, everyone is enthu- siastic about diversity. Is this groundswell of interest driven by a change in gen- erational leadership? Or is it because the United States is going through another era of racial reckoning? As a woman of color, who identifies as Afro-Indigenous, I am skeptical about the proliferation of new civil rights activists, many of whom do not have any academic or life experience with race, racial justice, or discrimination. Yet, now in the ultimate display of their privi- lege, they choose to push in as experts into the diversity space, clamoring to be heard and recognized for their newly minted epiphanies. Then there are others who, like a late law partner of mine, prefer to espouse the position that we simply should be color blind and ignore the differences in people’s heritages. This advocacy for a reboot of the Euro-American “melting pot” theory of cultural history also is problematic. In the late 1990s, now-Justice Jesse Reyes and I were appointed by former CBA Executive Director Terry Murphy to co- chair the CBA’s Minority Counsel Pro- gram. We collaborated with Murphy and our other co- chair, attorney Tom Bridge- man, Baker and McKenzie’s managing partner. We met city-wide with corporate general counsels and managing partners of major law firms to promote diversity in

hiring and business development. Thus, I have a clear memory of who attended the “diversity” play and remember who in the legal community stayed after intermission to see the second act performed by the authentic diversity actors. In its February 2021 issue, for Black History Month, a national ecumenical organization published in its Journal of Religious Ethics several articles with a collective theme of Racism, Justice, and Mercy. Critics of the otherwise meritori- ous initiative asserted that the difficulty with the articles was the fact that only one of these articles was co-written by a woman of color and a White woman with a significant background in race and racial justice – whereas the other four were writ- ten byWhite men without prior academic background or discernible experience, who wrote articles although they had never been perceived as advocates for anti- racism, social justice, or otherwise put their privilege at risk in any meaningful way to prevent racial discrimination. The ecumenical world is not alone in its search for authentic diversity. Indeed, the legal profession certainly has challenges to its authenticity about diversity. As we move across the stage in the legal profes- sion for the remake of the 2022 diversity play, we find a new cast of characters freshened up for our turbulent times. We see the pioneers in the DEI space replaced by the “understudies” for the people who put it on the line in the diversity space.

The flaw is that the new cast sometimes can be “tokens” and “stand-ins” shaped not by experience but by social media influencers who promote trends, not reality, in the DEI space. As early as the 2000s, the National Law Journal published articles on the recruitment and retention of minority lawyers foretelling that without authentic diversity efforts to recruit and mentor minority lawyers, in 20 years’ time extraordinarily little would be changed. The article implied that if that were in fact true, then the authentic diversity of law firm staffs and lawyers would need to be further examined. So now our legal profession stands at the crossroads of an ethical dilemma. The dilemma is as serious as the recent ethical brouhaha that occurred when allegations arose about prosecutors withholding evi- dence from defendants in civil cases or the muddled transfer of IT evidence to defendants in a recent high-profile criminal case that erupted from Black Lives Matters protests. The dilemma giving rise to scru- tiny here involves the ethical conduct of lawyers being called into question around the topic of diversity numbers in law firms and other legal workplaces. For years, as the legal profession struggled to define diver- sity, a group of people have capitalized on that lack of clarity to forge ahead in their careers making the most of the diversity space. The people often found in these new roles that were not destined for equity partnership and often included former public officials or judges to add weight and credibility to the firms’ diversity commit- ments. These persons revolved out at the end of the business year, when the billing partners reviewed the lack of monetary return on their investments in these people and the reduction in the annual members’ bonuses as a result. Unfortunately, these

Nina Fain, counsel to the JS Schirn Family Trust, is a 2020 CBA Earl B. Dickerson Award Recipient, member of the CBA Board of Managers and the CBA Editorial Board, and Co-Chair of the CBA DICE Committee.

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