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Law Firms to Monitor and Report Race, Gender, Sexual Orientation:
According to this story, sixty major New York law firms have agreed to create a database containing the race, ethnicity, gender, and sexual orientation of each of their lawyers. As I understand it, the firms have agreed to supplement their usual billing statements for corporate clients with an extra report of the hours worked broken down by race, ethnicity, gender, and sexual orientation of the lawyers assigned to the client.

  Apparently, the new practice is client-driven. A number of corporate clients want to decide what firms to hire and fire based on the race, ethnicity, gender, and sexual orientation of the lawyers working on their cases, and the firms have now agreed to provide that information. As one person quoted in the story explains, a firm that assigns a team of lawyers with a gender/race/orientation mix that the client does not approve of will now be "history."

  I have enabled comments. As always, civil and respectful comments only.
David Bernstein (mail):
Aren't any of these attorneys concerned with the fact that employment quotas, well-intentioned or not, are clearly illegal?

Quotes from the article:
Over the years, Newton said, the task force decided to urge a hard-number numerical commitment.

"No more data collection," she told the press conference. "The need is manifest."

"Years of silence and discomfort have taken their toll," said Michele Coleman Mayes, senior vice president and general counsel for Pitney Bowes. She quoted Charles Barkley, author of "Who's Afraid of a Large Black Man?" and a former National Basketball Association star, by adding, "Prejudice just kills all of us little by little."

Firm partners attending the press conference indicated that the agreement's strength was in making use of the competitive nature of the legal industry. The numbers of minority lawyers on legal teams as a means of demonstrating commitment to diversity might well become a competitive marker in standard firm surveys, they said.

"And if your numbers don't add up," Mayes warned, "you're history."
5.12.2005 11:46pm
Big Firm Ass-Ociate (mail):
I just lateralled, and I refused to fill out the race category on my employee form. First I just didn't fill it out, but they called me so I told them that it was my understanding that I was not required to specify my race, but to please let me know if I was required to do so. Haven't heard anything since...

It may be just a small rebellion, but I don't want even my data to be any part of quotas.
5.13.2005 12:00am
A Blogger:
This story about Holland &Knight seems relevant, too:
Holland &Knight adds diversity training
5.13.2005 12:06am
anon:
I wonder what would happen if a client decied they wanted minority, female or gay hours to be zero?
5.13.2005 12:10am
Jim Rhoads (mail):
This presents some interesting law school exam questions in the advanced Employment Law Seminar.

What if the employee never reveals his/her sexual preference? What if the employee reveals only part of his/her preference? What if the employee doesn't want his/her sexual preference revealed? Does a "switch hitter" get extra credit?

This looks like fertile ground for employment discrimination litigation against both the client and the compliant lawfirm.

Notice that age is not a criterion measured.
5.13.2005 12:17am
Jack Bauer (mail):
Are there any employment lawyers who could analyze the legality of that? I wonder if there will be any associates objecting to be counted and sorted that way.
5.13.2005 12:24am
The Ambassador (mail):
Hmmmm. Legalized, overt enabling of discrimination. This would be a good issue on which to call out our legislators. Then we'd see who REALLY believes in "nondiscrimination"

Actually, this is scary (sorry for restating the obvious... been a long day).
5.13.2005 12:57am
countertop (mail):
I just can't imagine any associate (let alone a gay associate) being comfortable enough at a large firm to disclose their orientation. Seems to me thats putting a lot at risk, the least of which is partnership.
5.13.2005 1:01am
Jack Bauer (mail):
Countertop: It may be regional and it may vary by firm, but lots of associates are out of the closet in law firms.
5.13.2005 1:03am
A Blogger:
Countertop,

I gather the purpose of including sexual orientation in the mix is to make being gay an economic asset for a law firm. It encourages firms to hire gay lawyers, doesn't it? The more gay lawyers a firm has, the happier its clients will be. No word yet on whether firms will offer bonuses for lawyers who will come out of the closet. . . .
5.13.2005 1:06am
ray gardner (mail) (www):
Well the obvious has been broached already but I'll second it. Not that anyone would for fear of the publicity fall out, but what if a client asked for nothing but straigtht white guys and fired the firm if they found out a gay man had worked on their account?
5.13.2005 1:14am
RK Shah (mail) (www):
A few questions on this.... I understand that some corporate clients may want to hire firms which are diverse in all of these categories but why do they need the names of each lawyer?

Why not make it an anonymous survey that everyone at the firm has to fill out? By requiring that you know the specific orientation, race, gender and ethnicity of each lawyer, I think it allows for a firm to assemble teams that are all straight, all gay, all male, all Arab, or whatever they want..

Wouldn't there be privacy issues here as well?
5.13.2005 1:21am
Lawgirl (mail) (www):
Isn't the basic information regarding law firm and partner composition already being tracked by big firms for the recruitment purposes? What more do clients really need to know?
more here
5.13.2005 1:37am
Lawgirl (mail) (www):
It occurred to me that the most likely scenario is a company refusing to allow an arab or muslim to work on one of its matters.
5.13.2005 1:44am
JohnG:
Guess clients are no longer interested in IQ, LSAT scores, Law Reviews, Years of Practice, Notable Cases, Knowledge of the subject, or other mundane items. What's next? Religion (none of those), Height (taller the better), Hair Color (no dumb blondes), Birth Signs (for compatibility, of course), White Teeth (brilliance of a different sort). Think of the inroads the mediocre among us can now make. That must be it! An egalitarian approach.
5.13.2005 1:58am
JF:
Interesting conundrum. Assume that those categorised as "diverse" (i.e., minorities, women and gays) are underrepesented in a firm (not such a leap I think). Now assume that this disclosure will cause many clients to want a diverse team working on their matters. Given the small ratio of "diverse" associates to all associates how are the resources allocated? Must the "diverse" employees work more hours for the firm to meet the clients' needs? Or maybe put an economic incentive and charge higher billing rates for "diverse" associates. Fine, but a higher billing rate should justify a higher salary. So now the firms have two options, pay their "diverse" employees more than the non-diverse ones, or pay the diverse employees a lesser percentage of the amount of money they bring into the firm. Neither seems like it would lead to a satisfactory conclusion.

Yes, a firm could just hire more "diverse" associates. Yet most firms seem to already assert that they specifically recruit based on diversity. Assuming that they are being sincere, it may be that without establishing some type of quota and lowering hiring standards (given the underrepresentativenenss of "diverse" students in law schools) that reaching the optimal ratio within a firm would be impossible. That is, until the population within law schools reaches some optimal ratio.
5.13.2005 2:17am
Strophyx:
It's interesting, but hardly surprising, that most people seem to assume that clients want this information so that they can insist on having more women; more blacks, hispanics and asians; more gays, lesbians, bisexual and transgendered lawyers working on their accounts. One has to wonder what the reaction will be when some clients begin displaying a preference for straight white males. While I personally believe they are (or at least should be) perfectly free to do so, I'd strongly prefer any company in which I had money invested be infinitely more concerned with the qualifications and performance of their legal representatives. Both the bigots and the PC crowd are equally deserving of ridicule and disdain from my persepective.
5.13.2005 2:27am
Burke Keenes (mail):
"As always, civil and respectful comments only":

?? How can anyone be civil in the face of this rising Fascism? This is exactly what the Nazi's did when they encouraged "voluntary" civil actions to restrict the economic opportunities of the Jews, Confessional Protestants, Slavs, etc. How can this new process not be subject to lawsuits themselves? What do we do about these law firms? How do we impose accountability on them? Just what the h__l is going on in my so-called country anyway? How far is too far?
5.13.2005 6:31am
JP:
Not being knowledgeable enough about employment law to comment on the legality of the diversity system itself, a comment about the nature of legal practices will have to suffice.

I wonder if clients will impose this new diversity desire on all projects, or just certain large litigation and corporate projects, given that in certain practice areas (tax comes to mind, most notably), there is a dearth of minority attorneys, generally by choice rather than by discrimination. (Of course, this also may simply reflect the general lack of minorities at law firms in general.)
5.13.2005 7:23am
erp (mail):
Speaking as a non-lawyer, the only criteria I'd look for in a law firm is whether or not the lawyers on the staff could brilliantly represent me and win my case. The ethnicity, race, sex, etc. of individual members of the firm would be immaterial.
5.13.2005 8:59am
Mark (mail):
Seems to me that a client would want the best associates to work on its case, regardless of sex, orientation, etc.
5.13.2005 9:16am
David Bernstein (mail):
Will the law schools that refuse to allow the military to recruit because it discriminates now also ban law firms that have signed an illegal quota agreement?
5.13.2005 9:51am
AlexanderKerdman (mail):
Worry not, unindicted co-conspirators. Have faith in Capitalism. No client can be that stupid.

Either that, or I am coming out of the closet soon, as a repressed homosexual, who, for religious reasons, and in order to please Mom, bravely chooses to marry and have 2 kids :)
5.13.2005 9:51am
Nick (www):
All I can say is that this seems very ironic. So a client on a sexual harrasment case could choose a lawfirm with just the right number of women on it? Could the fact that they did this be used against them during the trial to show one way or another how they feel about women?

I'm not a lawyer... yet somehow I would think that lawyers of all people would be the last to do something like this.
5.13.2005 10:34am
Ugh (mail):
Will the law schools that refuse to allow the military to recruit because it discriminates now also ban law firms that have signed an illegal quota agreement?

Most likely it will be the opposite, if you haven't signed on, you will be banned.

My firm sends out a request for racial info once a year for NALP purposes with a list of categories. There is no category for Caucasian. I usually want to reply, "I would like to respond to this request, but there is no category for my race and I'm quite certain it wasn't omitted because of its rarity." But in the end, I just don't reply.
5.13.2005 11:05am
dl:
1. I think the only Title VII claim here against the employer (the firm) would be a disparate impact claim--for adopting a policy that systematically harmed whites or males--which has never been available to "traditionally over-privileged" groups. Moreover, the firm could defend on the ground that this a bona fide affirmative action program, or that market conditions make such discrimination a job-related business necessity (though the economic interests of a firm have never sufficed as a business necessity in the case of discrimination against women or blacks).

2. Next question, which JP alludes to: does every staffing team have to be diverse? What if the team were 1 partner, 1 senior associate, and 2 junior associates? How easy will it be to make that team sufficiently diverse? Will it be enough to show a client aggregate statistics? If not, even where the associate ranks are sufficiently diverse, we will see some serious distortion.
5.13.2005 11:26am
the roaming gnome:
What happens if a client gets what he considers poor service, and he demands to see the diversity index. He then discovers that under this system he was assigned "diverse" team of attorneys, while on previous matters he had almost entirely white males. Can the client insist that the firm reassign white males to his matters? If the firm refuses to reassign the white males to his matters, can he fire the firm, or would he get sued for discrimination? If the firm agrees to reassign them, do the reassigned lawyers sue their own firm?

now, assume that the reason there's a dearth of minority lawyers at major law firms is that there is a death of minority law students at the top law schools from which those firms recruit. then, the client who had poor quality service demands to know what law schools the attorneys who worked on his matter graduated from. what if he then insists that only graduates of top law schools can work on his matters? that would lead to a decline in diversity. if the firm refuses, can the client fire the firm or would he be sued? what would the firm do? if reassigned, would the diverse associates be able to sue? the firm or the client?
5.13.2005 11:33am
WCB:
I am an employment lawyer and practice in a very large firm, and I can tell you that there is nothing new about this (except perhaps some of the specificity). A number of large clients have required fairly specific reporting of women and minorities who worked on their matters for some time. Staffing of employment litigation is also often driven by diversity concerns. It is not uncommon for firms to want at least some women lawyers staffed on sexual harassment cases and black attorneys staffed on race cases. Because Title VII and most other statutes require an adverse employment action in order to create a claim, these staffing decisions are not sufficiently significant to be actionable; however, these practices could pose a real problem for firms when a white male associate is denied partnership and points to the denial of opportunities for development because of race or gender based staffing decisions. Although Title VII permits bona fide affirmative action plans, there really is no exception for "diversity."
5.13.2005 11:43am
cathyf:
I'm reminded of a great scene in the movie Stripes. The army recruiter signing up Bill Murray and Harold Ramis asks, "Are you gay?" To which Murray earnestly volunteers, "No, but we could change."

cathy :-)
5.13.2005 11:46am
Ugh (mail):
Although Title VII permits bona fide affirmative action plans, there really is no exception for "diversity."

Which always amuses me, given the pretty damn clear language of Title VII.
5.13.2005 11:53am
Hans Bader (mail):
In their desire for business, New York law firms may instead be opening themselves up to a lawsuit. A firm that assigns a team of lawyers whose "numbers don't add up" will be "history," says Michele Coleman Mayes, the General Counsel of Pitney Bowes.

That sounds an awful lot like a quota. But the Third Circuit, which has jurisdiction over the New Jersey offices of New York firms, has already said in the famous Taxman case that it is illegal under Title VII to consider race at all -- much less use quotas -- to promote workplace "diversity," in the absence of a "manifest" imbalance between the firm's workforce and the qualified labor pool. Individuals who pressure firms to engage in race discrimination can be sued under 42 U.S.C. 1981 and the New York Human Rights Law, which forbids anyone to "aid, abet, incite, or compel" employment discrimination.

Judge Newton, head of the New York County Bar Association's Task Force on Diversity, argued that the deal was needed for a "hard-number numerical commitment." But a quota isn't immune from suit just because a judge or bar association approves it. Delaware's bar association and supreme court found that out years ago, when they were sued for a race-based summer program for minority law students.

They may also be bad for business. Pitney Bowes, whose current general counsel has made "diversity" such a priority, has been outperformed by the Dow Jones Industrial Average over the last six years, as have most of the companies that filed amicus briefs in favor of affirmative action in the Supreme Court in the University of Michigan case.
5.13.2005 12:57pm
Arthur (mail):
Law firms may not be the only employers. Clients can be employers also. There's an interesting possibility that a law firm which loses a competitive bid for a major engagement on the basis of the number of minority employees (whether too low or too high) could sue the prospective client. That would be a fun one to litigate. . . .
5.13.2005 1:04pm
Al Maviva (mail):
Inside a law firm, divvying up assignments based on race and sex will fail Title VII tests - unless "representation" is treated like the "minority government contractor" sham, in which a minority, woman, or disabled veteran is commonly granted a very small ownership share in BigCo, in order to meet minimum requirements and win contracting preferences.

Firing a law firm for being insufficiently Black, or Latino,(or even White, God forbid) could be construed as a violation of Section 1983, which prohibits interference with the right of contract based on race or color.

The sexual preference claims would be trickier, depending on the language of state laws prohibiting discrimination on the basis of sexual preference. If they neutrally prohibit sexual discrimination, then a "reverse discrimination" would be possible, but if they are construed only to protect gays, then a reverse discrimination claim would not work.
5.13.2005 1:27pm
Rover (mail):
What if I'm not gay but just like to sleep with transvestites once a month or so- do I get to get put on some better cases?
5.13.2005 1:33pm
The One Billy Gun (mail):
This is great because it increases the level of information in the market so I can do better with my stock picks. All I have to do is find out which moron companies are these clients insisting on this quota policy, then I will sell that stock because those companies are going to Heck in a handbasket.
5.13.2005 3:24pm
matias (mail) (www):
WCB is right that this has been happening for a long time. I worked for a big "progressive" law firm in San Francisco over 10 years ago, and they kept tabs on everyone. Although I'm considered a Person of Color (although I'm half white), the firm never gave me the opportunity to opt out of their bean counting. In fact, they never even asked me what my "race" was (I'm half white)--they just did "a visual."
5.13.2005 3:39pm
Ffinch-haddon:
Bracket-creep. Historically, diversity quotas started with jobs that were considered unskilled. Does anyone remember the American Lawyer article about Cravath pro bono lawyers sneering at the Birmingham Alabama fire department's protest (the department and Cravath were both overwhelmingly white and male) that the firefighter test, which had a disparate impact, really measured a legitimate job-related ability - unlike, of course, whatever criteria Cravath used in its own hiring decisions?

A modest proposal: every proponent of diversity-trumps-quality for legal services must apply exactly the same standards in selecting his own, and his family's, provider of medical services, especially specialists for one-off procedures like brain surgery and liver transplants. I understand that medical schools have been under the same pressure to diversify as have law schools, so that there are now plenty of minority brain surgeons and transplant doctors. It would be bad form to ask, and impossible to believe that anyone would care, whether diverse doctors were admitted to medical school under Bollinger criteria. An additional benefit of this proposal is that it would allow the proponents to display their virtue in relation to actions that affect themselves, rather than, much less impressively, in relation to actions that affect only others.

Calvin Trillin joked that there was no reason not to choose a Jewish internist - but why take a chance? In five years that joke will be actionable.
5.13.2005 3:42pm
The Hedgehog (mail) (www):
I'm part of a very large (Midwest-based) law firm and, speaking only for myslef, think this is an exceedingly dumb and divisive idea. Ffinch-haddon is exactly right.
5.13.2005 3:51pm
nivine (www):
As an arab-american, I find it frustrating that traditional ethnicity reports do not specify arab or middle eastern descent, they just lump it together with caucasians. My "visual" is hispanic or south asian.

As a Christian, it's even more frustrating, once identified as Arab, to be presumed Muslim.

To top it all off, with a gender-neutral name (by American standards), you are keenly aware of just how much emphasis many clients in the real-world place on having a man handle their case - all other qualifications being equal. They have to be, they're mine. The only difference is they found out I'm a woman.

Does discrimination exist? Yes. Is reverse discrimination the answer? I wish it weren't. No matter which side you're on, if you're a female or minority (and especially a minority female) as much as you want to believe qualifications are all that matter, in many parts of country, they're not.
5.13.2005 4:18pm
Honest Abe (mail):
liver transplants

Well, they'll just need to move to Dallas where one of the best liver transplant surgeons happens to be black.
5.13.2005 4:22pm
trotsky (mail):
Why does the Supreme Court grant us a right to privacy that makes sexual orientation legally irrelevant, but law firms (and their clients) need to know who you like to bonk?
5.13.2005 4:39pm
Crime & Federalism (mail) (www):
Title VII prohibits employment-related actions based on protected classes, which include race and gender. Assigning work based on race and gender meets this criteria. The employers' actions would violate Title VII. Various states (including California, New Jersey, and I think, New York) add gender identity as a protected class. Again, will the firm be making employment-related decisions based on gender identity? Yes.

You might quibble that work assignments are employment-related actions. First, that fails on its face. The idea that some things are a "man's work" and others are a "woman's work" has long been repudiated. Moreover, that argument would fail because bonuses and promotions are based on the type of work an employee does. Thus, if a straight white male didn't get plum work assignments, he'd get a smaller bonus and have a lesser chance of making partner. Those consequences would directly and proximately follow from race/gender/ discrimination.

It's not a defense that corporations demand quotas. Customer preference is NOT a defense to a Title VII action. Imagine if an Alabama restaurant said it would only hire white waitresses because diners don't want blacks touching their food. Would that be protected?

Currently, there isn't an "affirmative action defense."

The above statements are employment discrimination black letter law, so I'm not why some have argued that such discrimination would not be unlawful. Apparently people think there is a double standard when "disadvantaged" groups are being benefited. But there's not.
5.13.2005 5:47pm
Bruce Hayden (mail):
Of course you could lie - but everything else besides sexual orientation is pretty innate (ok, for some/many sexual orientation is innate - but not for all). But then you would have Ward Churchill, who appears to have lied to get hired, tenure, etc., and is now using that tenure to argue that he can't be fired.
5.13.2005 5:54pm
Mark:
(non lawyer here)

I find it quite telling which categories they want to report on.

They don't want to hear about disability. They don't want to hear about veteran's status. They don't want to hear about religious affiliation.

They only want to hear about more "progressive" categories: race/ethnicity and gender/sexual preference.

It appears as if it's not "diversity" they are looking for, it's a certain kind of diversity...
5.13.2005 5:57pm
A.S.:
I'm interested in knowing how they propose to determine if people are gay. I work in a large NYC firm - almost certainly one of the signatories. We are asked about - and the firm keeps records of - race and gender. But not, to my knowledge, sexual preference (at least, I don't ever remember being asked, and I don't believe it shows up as a category when we get the once-a-year Powerpoint presentation on diversity at the firm retreat).

So are they going to have to ask everyone in the firm if they are gay? Yikes.
5.13.2005 6:09pm
Bruce Hayden (mail):
As a note, the medical field has its own problems. I do volunteer work with a couple of surgeons who also teach. One of them flunked an African-American who didn't have the aptitude for surgery. Indeed, the guy I work with couldn't figure out how he got through med school and into a residency in the first place. In any case, the school overrode, giving the guy a "B". My friend calls him a butcher, waiting to happen.

So, knowing what I know, I would think twice about using some minorities as specialists. Sorry about being prejudiced, but a little knowledge goes a long way, esp. if, as in this case, it is my life at stake.

And that folks is some of what Clarence Thomas was talking about during his confirmation. Knowing that at least some surgery residency programs will not fail some minorities, regardless of ability, makes me take a second look at all such minorities before I would let them cut on me or my loved ones. It may not be fair, but it is my life at stake here.
5.13.2005 6:09pm
Al Maviva (mail):
The sad irony here is that real diversity - a diversity of talent, of thought processes, backgrounds (this includes Okies as well as ghetto kids) probably does add a lot of value to a law firm, especially to a "public policy" oriented law firm like a lobbying shop or a government legal office. But actual diversity isn't what's sought here. It's pretty clear that quotas are the order of the day with this plan.

You would think that the prohibition on quotas would suffice to preclude this program. The Supreme Court's ruling in the University of Michigan affirmative action cases, Gratz and Grutter, dealing with policies that were also premised on diversity, found that a student body that was constant at 15% blacks, no matter what the applicant pool looked like from year to year, did not comprise a quota system. Perhaps that is what the NY lawyers are hanging their rainbow colored tophat on.
5.13.2005 11:32pm
arbitraryaardvark (mail):
Not that lawyers are a representative sample, but here is a way to test Eugene's 2% gay hypothesis.
I'll take a guess that the numbers come out 2% gay, 6%bi, 24% straight, 68% none of your business. And that could be wrong too, but the 2% figure is as silly, and politically motivated, as the 10% figure. When I hear numbers like that, I want to know the methodology.
5.14.2005 12:41am
Bill:
Another non-lawyer comment:

what kind of sample sizes are we talking about here? if you had purely gender-blind random selection of lawyers working on a case, with 2-person teams half the teams will be single gender. if the balance of attributes isn't 50-50, it gets worse...

from a mathematical basis alone it makes no sense to report this data with very fine granularity because individual clients will be outlyers just based on laws of probability.
5.14.2005 10:31am
T.O.:
If I thought a firm was more interested in presenting me with a demographic mix than doing the best job possible to solve my legal problems, that firm would be "history." Maybe once these companies start losing cases and getting shafted on deals, they'll start thinking about merit again.

As Strophyx, Lawgirl, and anon have suggested, I also wonder what would happen if a client decided that it wanted "minority" people kept away from its work.

Maybe the next step is for judges to start keeping statistics of how many legal arguments minority lawyers win and lose in their courts, and then start rewriting their opinions to get rid of "unconscious racism." In 20 years, the secret to winning an argument at the Supreme Court might be to have a more "diverse" advocate than the other side.
5.14.2005 10:43am
James Kolbert (mail):
I can see the benefits. Legal ethics rules that command lawyers to represent zealously any client notwithstanding, an oil company might feel safer represented by a pro-business libertarian than an unrepentant Marxist. It isn't a bridge too far to imagine a client feeling safer with a female lawyer to engender sympathy in a jury trial involving drug-induced birth defects, a minority lawyer in a racially-charged matter, or a gay person in a novel discrimination case. Choosing lead counsel carefully can serve as both a sword and a shield, either minimizing a bad impression (ten old white guys representing Big Tobacco looks worse than a Benetton advert at the defense table) or maximizing a good one (man seeking to help battered women).

I'm not so sure that the proposal monitoring will lead to funneling work to unqualified lawyers: the presumption is that if a given group of lawyers beat out others in competition on the LSAT, entry into law school, grades at law school, acquring honors like Moot Court and journal experience, and job interviews with big firms, then they already ARE qualified. Monitoring the allocation of work at firms, then, would not incentivize funneling work from qualified lawyers to unqualified lawyers, but from qualified white heterosexual males to qualified other kinds of people. That sounds fair, and prevents stagnation or ghettoization. Imagine if you are a female lawyer who does not want to specialize in employment discrimination or a black lawyer who does not want to specialize in civil rights cases, but your firm keeps you out of all the antitrust and bankruptcy litigation it does. The firm suffers and the personal careers of those lawyers suffer, because qualified lawyers are being underutilized due to how their appearances discount their skill set in the politics of work assignment within their firm. In that sense, the policy will encourage efficient use of resources (workers).

But it's not all roses. That a black lawyer would not be chosen to represent his firm in a case tried in a traditional Southern town may be sensible trial strategy, but it's also discrimination against him. My problem with this proposal is that it isn't just about appearances, it's actually about allocation of work. The problem, as I see it, is that it adds to the marketplace a statistic that can be misinterpreted by clients, and I one could reasonably predict improper allocation of work to rig the numbers. In the case of a female lawyer who likes employment discrimination and hopes to specialize in it being forced to work on bankruptcy restructuring, it seems that her personal career goals have been subordinated into the generalized demand of clients at-large to have a perfect distribution of female lawyers across all fields of legal practice. I'm not sure if that is justified.

As for the benefits of diversity, it is quite true that geographical diversity, racial diversity, diversity of alma mater, gender diversity, political/philosophical diversity, and sexual orientation diversity is useful in a legal culture. While it is not necessarily true that you will get any particular opinion out of any particular kind of person, the chance of intersubjective disagreement rises significantly when you have as diverse a mix as possible. The benefit is obvious. If you're trying a case that you want to win, having as many different perspectives on it as possible is useful to framing an argument capable of persuading as many people as possible. It's about winning.
5.14.2005 1:53pm
James Kolbert (mail):
I can see the benefits. Legal ethics rules that command lawyers to represent zealously any client notwithstanding, an oil company might feel safer represented by a pro-business libertarian than an unrepentant Marxist. It isn't a bridge too far to imagine a client feeling safer with a female lawyer to engender sympathy in a jury trial involving drug-induced birth defects, a minority lawyer in a racially-charged matter, or a gay person in a novel discrimination case. Choosing lead counsel carefully can serve as both a sword and a shield, either minimizing a bad impression (ten old white guys representing Big Tobacco looks worse than a Benetton advert at the defense table) or maximizing a good one (man seeking to help battered women).

I'm not so sure that the proposal monitoring will lead to funneling work to unqualified lawyers: the presumption is that if a given group of lawyers beat out others in competition on the LSAT, entry into law school, grades at law school, acquring honors like Moot Court and journal experience, and job interviews with big firms, then they already ARE qualified. Monitoring the allocation of work at firms, then, would not incentivize funneling work from qualified lawyers to unqualified lawyers, but from qualified white heterosexual males to qualified other kinds of people. That sounds fair, and prevents stagnation or ghettoization. Imagine if you are a female lawyer who does not want to specialize in employment discrimination or a black lawyer who does not want to specialize in civil rights cases, but your firm keeps you out of all the antitrust and bankruptcy litigation it does. The firm suffers and the personal careers of those lawyers suffer, because qualified lawyers are being underutilized due to how their appearances discount their skill set in the politics of work assignment within their firm. In that sense, the policy will encourage efficient use of resources (workers).

But it's not all roses. That a black lawyer would not be chosen to represent his firm in a case tried in a traditional Southern town may be sensible trial strategy, but it's also discrimination against him. My problem with this proposal is that it isn't just about appearances, it's actually about allocation of work. The problem, as I see it, is that it adds to the marketplace a statistic that can be misinterpreted by clients, and I one could reasonably predict improper allocation of work to rig the numbers. In the case of a female lawyer who likes employment discrimination and hopes to specialize in it being forced to work on bankruptcy restructuring, it seems that her personal career goals have been subordinated into the generalized demand of clients at-large to have a perfect distribution of female lawyers across all fields of legal practice. I'm not sure if that is justified.

As for the benefits of diversity, it is quite true that geographical diversity, racial diversity, diversity of alma mater, gender diversity, political/philosophical diversity, and sexual orientation diversity is useful in a legal culture. While it is not necessarily true that you will get any particular opinion out of any particular kind of person, the chance of intersubjective disagreement rises significantly when you have as diverse a mix as possible. The benefit is obvious. If you're trying a case that you want to win, having as many different perspectives on it as possible is useful to framing an argument capable of persuading as many people as possible. It's about winning.
5.14.2005 1:53pm
W. (mail):
I don't expect too much of this reporting to be accurate, and I actually hope that it is not.

There are reasons for partners on particular matters to omit or lie about the diversity numbers that have nothing to do with discrimination. In fact, the diversity reporting could conceivably lead partners to rely more heavily than they already do on associates with sex and ethnicity profiles that match their own to help them obscure the fact that the partner isn't putting in as many hours himself on a client's matters as he wants the client to believe.

If the associates staffed on something are a different sex or ethnicity from the partner on the matter, then clients could tell from the diversity break-down that the partner didn't do jack, except call the client on the phone and present what the associate sitting in front of him just told him.

Try picturing this on a real bill:

"For services rendered, $XXX,XXX.*
[Firm Name]

"The hours worked were 30% female, 30% black, 70% asian" (figure that one out. OK, OK, black female assiciate, asian male senior assiciate, white partner.)

Can't report no white hours, because the client knows the partner is white. Better get a white associate on the deal to disguise the ratio of assicate to partner hours. So what if this white guy the partner picks to be his stand-in for this diversity reporting gets much more exposure and training than any of the assiciates who are different from him? He'll call him his mentee. Don't they keep telling him that he has to mentor somebody anyway? Kill two birds with one stone. And when it comes time to make partnership decisions, of course the guy with the best experience is going to get the promotion. That just makes sense. Probably, the other assiciates have already seen the writing on the wall and have left the firm by that point anyway -- can't promote minorities if they're not around to be considered!

Therefore, in real life situations like the scenario above, this reporting requirement could have the perverse effect of decreasing diversity at law firms, increasing racial and sexual animosities in the workplace, and generally making law firms even worse places to work than they are now, for everyone. Is that what these people want?
5.14.2005 3:04pm
Thunderstruck:
The great unspoken story is that "diversity" is a myth, concocted to counter discomfort with the idea of reverse discrimination. Colleges, graduate schools, employers and any other institution that restricts its membership on the basis of personal characteristics use "diversity" as the pretext for boosting the ranks of minorities and individuals of "alternative lifestyles." As Mark pointing out above, all of these institutions are searching for a certain type of diversity, not diversity itself.

Moreover, the idea that "diversity" is beneficial for law school or most legal projects is largely bunk. I went to a law school notorious for its focus on diversity--take a guess as to which U of M that could have been(nuts, gave it away)--and, as with what I have heard from most other law schools, there is no "diversity" to be found in the core law school curriculum. Does one's understanding of the rule against perpetuities (a personal favorite) really change on the basis of racial or socio-economic status? More importantly, to the professor teaching the core courses (think personal income tax), does it matter whether the student thinks that the parol evidence rule is horseflop, from a "cultural" perspective? no, what matters is an ability to understand the law and how the various doctrines fit together in a cohesive (or incohesive, as the case may be) whole.

similarly, for associates at amlaw 100/200 firms, if you are working on a merger as a first through fifth-year associate, doing due diligence and sitting in a conference room or proof-reading an sec filing to make sure that the printer turned that comma into a period, does your race really matter? it's a pretext for racism, nothing more. but in the "progressive" world of those who see life and politics as struggle for equality, rather than liberty, racism is justifiable if the victims are affluent, white men.
5.14.2005 4:32pm
Thunderstruck:
sorry, realized the non-sequitor b/w personal income tax and the parol evidence rule. long weeks lead to brainless weekends, but you all get the point. whether property or contracts or income tax or torts, the point is the extent to which one understands the foundational doctrines of law.
5.14.2005 4:35pm
Jim Rhoads (mail):
The comments seem to have pretty well exposed most of the dangers the Pitney Bowes approach. Its basic problem is the assumed fungibility of legal talent among big firm lawyers. Those of us who have toiled in those vinyards for any period of time know that such fungiblility is a fantasy.
5.14.2005 8:48pm
Keith (mail):
What continually amazes me is how this, and other policies propagated by the so-called "progressives" (ex. speech codes on campus) seem to be straight out of George Orwell's "1984". These same "progressives" are all too often the first ones to accuse those on the conservative side of implementing tactics out of the novel.

While I am no legal expert, I did have the honor of taking a constitutional law class during my college junior year at the same time as Judge Robert Bork was in the nomination process. I've always found the field extremely fascinating and I am very concerned by efforts by some to read into the Constitution what they wish were there based on their feelings of what is right.

I wonder if we will see an effort by some individuals or groups to challenge this directly in court, or through another covert method. Say submitting various resumes to the respective law firms from "applicants" of varying ethnicities, gender, or sexual orientation in order to root out any bias in interviewing or hiring.

If I may ask for some feedback, can anyone point me to any specific cases, if any, involving the 1964 Civil Rights Act where the Supreme Court or lower courts held that racial, or other quotas were mandated by the law?
5.15.2005 6:04am
Walter:
Interesting discussion.

Leaving the legality of the reporting to the employment practitioners and the value of a litigation team that looks like the parties, judge, or jury pool to the litigators, I'd like to comment on the value of diversity in the transactional arena.

I was taught as an economist that every deal should come down to maximizing net present value at an objectively determined discount rate (adjusted for international exchange rates and monetary policy). Many deals do.

We don't have to look far, however, to find even very large deals where other factors have played a role. The recent $1.5 billion Post Dispatch merger included a clause that required the paper to remain liberal for 5 years and required the new owner to consult a former stockholder for significant editorial changes for that period. How do we value those clauses? Were I representing the purchaser, I might ask for a discount, even a significant discount, to indulge this whim. A more diverse team is more likely to notice such opportunities and capitalize on them.

In estate planning, client preferences vary even more markedly. Every estate plan reflects idiosycratic desires. Some may succeed: Bill Gates's (possibly revised) plan to leave only $10 million apiece to his children and John M. Olin's desire to defund his foundation before it could begin to advocate positions contrary to those he supported in life. Others have not: Henry Ford might not have supported in life the grantees currently funded by the Ford Foundation and Howard Bashman may have lost his battle to preserve the Barnes Foundation, etc.)

As technicians, we have to know how to implement our clients' expressed wishes. As lawyers, we inform those wishes by developing and exploring alternative solutions. Where a law student must distinguish between incorrect and more correct MBE answers, I evaluate whether a perpetual trust is appropriate and consider using a trust in a jurisdiction opting out of the Rule.

Understanding client objectives in a larger sense enables me to represent them appropriately with respect to individual transactions. Often, working with others who share a background with my clients help me understand and thus meet their specific goals.

PS: My friends in law firm marketing tell me similar reporting happens quite often on client request. Shouldn't we view this agreement as a group effort to manage the flow of this information to prevent a race to the top (bottom?) in diversity issues?
5.15.2005 6:31pm
DT (www):
As a current law student I do have to admit that I'm quite concerned about how this information will be used. It's one thing to know the diversity of a firm as a whole, but an individual project? Is there meaningful data available for a 5-person team? Would it be surprising to have a 5-person team that didn't have any black or gay billable hours? Does this count for paralegals and support staff as well? Very strange business decision if you ask me.
5.16.2005 4:15am
Minority (mail):
It seems as though this comment board has been awashed with commentary of only white males...thus the homogeneity of opinions presented.

I am a minority, and therefore differ in my opinion of this news. I find it a welcoming and perhaps necessary step in the plight of minority lawyers. I certainly don't condone inept minority lawyers being promoted because of this, but I do like the idea of qualified minorites getting a better shot (or comparable) as his white counterpart. Minorities face certain disadvantages that are unquantifiable or not noticed by their white counterparts. Of course these disadvantages are natural, white partners would understandly be more comfortable with white associates, not due to racism, but due to the fact that they have more in common. Minorities often have a hard time bridging this cultural difference, thus have less opportunities. SO I think in this respect, minorites who are well qualified will benefit.

At the same time, I definitely understand the point of view of many of the comments here. It is certainly not a "fair" practice, but then again life has never been "fair" for minorities in comparison to the majority race in terms of opportunities, so it all balances out, I believe imho.
5.16.2005 2:48pm
Kris:
Um. "It all balances out" is not the same as "equality." You might want to let that argument go.
5.16.2005 4:12pm
OBSERVER:
Earlier this year I tried a case against a major insurer, the "old" partner presented the entire case. The "young, minority" associate literally sat there for two days. It was obvious they were trying to get some sort of ratio together for the client. But did anyone consider what the client PAID for this associate to sit there? And what the costs of such decisions are to THE ECONOMY? I'm not against anyone who has the effort, and perhaps this will help associate down the road, but it sure seemed like a waste of someone's (stockholder's) money to me.....
5.16.2005 5:12pm
The One Billy Gun (mail):
The medical doctor comments are right on.

The lunacy that is modern USA political correctness will lead to our downfall. We are now about 85 to 90% towards being the [former] Roman Empire. And we will fall, make no mistake.

This craziness is just plain dangerous and bad for public safety. It is a common FACT, whether you la-la land livers like it or not, that the comment re the failing black doctor getting a B happens not merely regularly but ROUTINELY. They fail, cannot do the job, have IQs less than 90, but nevertheless are GIVEN Bs or otherwise passed, and are out here practicing law, medicine, architecture, engineering, etc. The bar exam and I'm sure the medical exam contains a hidden (this is conspiracy theory stuff, I know) "system" that passes certain peoples based on a quota/different grading standard.

It is scary. It will kill us, and in the meantime it kills us slowly and with pain due to the economic and morale impacts.
5.16.2005 6:32pm
Majority:
"the plight of minority lawyers"?

large firms are falling all over themselves to get minority law students. i think in the context of the companies and firms we are discussing, the "plight" of minority lawyers is not the issue.

"I do like the idea of qualified minorites getting a better shot (or comparable) as his white counterpart. Minorities face certain disadvantages that are unquantifiable or not noticed by their white counterparts."

you know what, minority, there are too many jewish attorneys. jewish law students have certain advantages because their parents tend to focus their upbringings on education. therefore, law firms should hire more non-jewish attorneys because, let's face it, non-jews face certain disadvantages not faced by jewish attorneys.

perhaps if more minority students enrolled in courses like "corporate finance" rather than "race and law", the disadvantages of which you speak would be less pronounced. i'm not a minority, and i financed my entire law school education through debt; clearly it can be done, so money isn't the issue. and with affirmative action programs at top 25 schools admitting minority students with statistics that would get white students rejected at a rate 5-10x that for minorities, the admissions process isn't the issue.
at some point, you can no longer blame large societal problems for the absence of prominent minority attorneys at major law firms.
5.17.2005 1:00am