CBA Record January-February 2022

individuals often do not make the time to mentor the minority attorneys who are hired as associates, which may actually be the best and highest use of their time. More is the pity when the minority lawyers who are attracted to these firms discover, after grinding out the hours to prove they are ready for partnership, that these diversity symbols have no influence on their partner- ship outcomes. Let us also examine the “celebrity” lawyers who are brought in to fill the diversity space. Their presence allows the firms to report greater diversity numbers in annual surveys and questionnaires sent by organizations and clients. This data for external affairs and other client reporting has become more critical as independent measures such as the Mansfield Rule are levied against firms and corporations. An example of this from years past was when a Fortune 500 company, one of the country’s largest employers, demanded that their law firms increase minority involvement to be more in line with its consumer market. When those firms disregarded the request, the Fortune 500 client pulled back tens of millions of dollars in business from over 75 of the country’s largest law firms. This action started a trend that resulted in a shake-up to many partners’ books of business. Still undeterred, however, the firms recalibrated how to expand their busi- ness markets while only making modest

changes in the way they recruit and hire associates. They stood to be in a win-win place if they changed the timing of their pattern of reporting: during the year they could truthfully report minority statistics and yet have no need to refer to the fact that the retention of the same minority lawyers referred to in the past annual report had changed. As long as they had a channel into which the firm could funnel the right combination of celebrity lawyers and newly recruited associates, they could have a public showing of an unwavering commitment to diversity. However, closer examination of this pentimento will reveal that the individuals who remained the major billing attorneys or the dominant credit-originating attorneys are not the diverse members of the firm. Recently, a senior associate noted to a colleague that she has observed the associ- ates sitting in the partner’s office being mentored are not diverse. The responses she received were varied but had one over- arching theme: “You are a good lawyer, but people do not know you.” Let us ponder if that leitmotif is code for “You are here today, but no one expects you to remain or make the partnership.” On more than one occasion when I talked to other depart- ment heads about minority associates who had come to me for help, partners told me, “Don’t spend a lot of time on that person, you know they won’t be here after a certain date,” or “Can’t you call somebody and see

if we can find somewhere this person can go? It will make it simpler for us to effectu- ate this exit.” That sell-by date was usually soon after the annual diversity reporting to clients about how many lawyers of color or women were in the firm. These circumstances go beyond the “usual suspect” discrimination of implicit bias and direct us to the looking glass to search for the meaning of “authentic diver- sity.” Early in 2022, DICE will examine these new developments with members of an ABA Commission. Also, although there are several books on this topic, one of this year’s Black History Month booklist’s recommended pick is by Michelle Silver- thorn, entitled Authentic Diversity: How to Change the Workplace for Good . Later in the year, DICE will present a series of programs based on Silverthorn’s and other writers’ views on authentic diversity. We hope our CBA members will join us for these offerings.

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Sheila Nielsen, MSW, JD


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