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Cummins GC to Firms: Treat Diverse Lawyers Well or I’ll Steal Them

Nov. 25, 2015, 8:58 PM

When Sharon Barner took over the Cummins legal department in early 2012, she nearly doubled its size, from 26 to 56 attorneys. Barner also cut the number of outside law firms retained by the company from 150 to 22.

Throughout both processes, the hiring and the firing, she prioritized diversity: She hired a large number of minorities and women, and began requiring that law firms show, with concrete information, that they shared Cummins’ diversity values.

Since Barner’s arrival, the legal department has increased from less than 50 percent to 67 percent minorities and women. In dealings with outside law firms, the number of minority leadership partners — lawyers who are a firm’s primary contact with Cummins — has risen from zero to four, and the number of female leadership partners has increased from one to three.

For Barner’s efforts, Cummins won the 2014 Employer of Choice Award from the Minority Corporate Counsel Association.

She cast diversity as a competition: If law firms don’t treat diverse talent well, companies like Cummins will steal them away, Barner said.

“I will bring those people in-house,” she said of frustrated minorities and women. “They will have great careers. They will get great work. They will have great terms of flexibility in their work-life balance.”

Headquartered in Columbus, Indiana, Cummins Inc. designs, manufactures, distributes, and services diesel and natural gas engines and related technologies. The company has 54,600 employees worldwide, and posted sales of $19.2 billion in 2014.

Earlier this week, Barner spoke with Big Law Business about diversity in the legal industry, what else she values in outside firms, and recent layoffs at Cummins.

Below is an edited transcript of the first installment of the interview.

Big Law Business: How have you put pressure on outside firms to improve on diversity?

Barner: As part of the process of going from 150 firms down to 22, we issued a request for proposal to our law firms, and a significant proportion of it was devoted to diversity. I started from the outside, wanting firms to understand that we were going to focus on diversity as we went down to 22 firms.

I gave them points for things like, “Is there a diverse relationship partner heading up the file?” or “Is there a diverse relationship partner heading up matters?” as we did the one-week process. I had discussions with the law firms I brought in about their diversity initiatives, in addition to the skills they brought to the table.

As the client, I can decide where my work is going. I don’t make you stay on the preferred list, but if you’re going to be on it, here are the things we value.

Another thing we do is track the number of hours that diverse lawyers are spending on our matters, and we track the consistency and repeatability of those lawyers on our matters. We evaluate our currents every six months on that and a number of other factors. That has allowed us to ensure an emphasis, where we are at about 50% of the hours being worked on our matters are by diverse lawyers and women.

That is also our effort to ensure that law firms are not only hiring but retaining the best talent by giving them opportunity and visibility on the client’s work. This is an area where I’m partnering with the law firm, where there’s a lot of discussion where they can hire diverse and women lawyers but they cannot retain them, and this is a critical part of the tension.

[caption id="attachment_5893" align="alignleft” width="250"][Image “Photo Courtesy of Cummins Inc.” (src=https://bol.bna.com/wp-content/uploads/2015/11/Barner_Sharon_5x7_New1.jpg)]Photo Courtesy of Cummins Inc.[/caption]

Big Law Business: Do you think you’re doing more to put the screws to law firms than other corporate legal departments? How receptive have firms been?

Barner: The unique position I have right now is that, as the client, as the customer, I can decide where my work is going. As a law firm, you can decide whether you want to help me focus on diversity as one of my issues or not. I don’t make you stay on the preferred list, but if you’re going to be on it, here are the things that we value, both from the legal function and as a company as a whole.

I don’t think of it as putting the screws to my law firm. I think of it as partnering with them in an area where they say they’re committed. As I ask them to partner with me, I am also partnering with them on their diversity initiatives that line up with my diversity initiatives. I think that when you approach it as a partnership, where we’re after a core value focused on diversity, it doesn’t feel like I’m putting the screws to them.

I’m trying to help law firms reach their goals. They are also trying to help me reach a goal, which is a focus on value, quality, and diversity. I think all of those things can come in a single package.

Big Law Business: Are there law firms out there who won’t get on board with ambitious initiatives? Or is it as simple as GC’s demanding diversity?

Barner: Law firms will all say they’re focused on diversity, and they want diversity growth, so if general counsels partner with them, by helping them create sustainable programs to both recruit, hire, and retain diverse lawyers, then I think you’ll see law firms where the general counsels want them — and most companies have a focus and value on diversity.

What I tell my law firms is, “When you’re looking at women and minorities, you should treat them well, because companies like Cummins will come and steal them if you don’t.”

If you partner up with your law firm, and don’t view it as a hammer, but view it as an opportunity to help them to achieve their goals, that will work better. In doing that, you can help create metrics you can measure: For example, having relationship partners who are diverse and who are women, counting the number of hours, asking for the lawyers that you want, and making it clear at the highest levels in the law firm that’s what you’re looking at.

Big Law Business: Last week, the National Association of Law Placement put out a report with some negative statistics about the trajectory of diversity. Are you optimistic about diversity in the legal profession?

Barner: I can’t afford not to be optimistic. It’s got a long way to go, but it’s also come a long way. I started practicing in the 80’s, and for those people who think the current numbers are depressing, you should just go back to the 80’s and see what the numbers were then.

We will continue to work on those areas in the legal profession, especially in large law firms where we need to focus on women and minorities. I will tell you, one thing that is impacting large law firms are companies like Cummins. I will bring those people in-house. They will have great careers. They will get great work. They will have great terms of flexibility in their work-life balance.

I think another thing impacting this number, which people don’t understand, is that when you look at in-house departments and find more women and more minorities in-house, it’s because we can offer great careers, great practice, great legal opportunities, and more lawyers are finding those things attractive.

What I always tell my law firms is, “When you’re looking at women and minorities, you should treat them well, because companies like Cummins will come and steal them if you don’t, and we will get the best and brightest from your law firms to come in-house.”

For those people who think the current numbers are depressing, you should just go back to the 80’s and see what the numbers were then.

You think about it, look at me, I spent 30 years in large law firms and then Cummins came and plucked me away, not because I was unhappy, but because it presented a great opportunity for me.

Big Law Business: Is there diverse talent leaving large law firms and going in-house because they are in fact unhappy, or don’t see a path to success in a large law firm?

Barner: Of course. I can’t deny that. There are some folks who are unhappy at law firms. But there are some folks who are unhappy in-house too.

Law firms need work, and that’s why I think my position is so great: I can help them hire, retain, and promote some of the right people. I do think in my current role as a GC, I have an opportunity to continue with law firms along that path.

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