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The Momentum for Black Lawyers Might Already Be Fading

Jan. 20, 2023, 3:05 PM

Reading the National Association for Law Placement’s latest report on diversity in law firms is like being jerked by a yo-yo.

One minute the data brings you up: In 2022, associates were 49.4% women and 28.3% people of color—both historic highs—hooray!

The next minute, you’re hitting the floor: Among equity partners in Big Law, women and people of color still lagged far behind, comprising just 22.6% and 9%, respectively, of this most coveted class.

In case you forgot who’s still on top, the report spells it out for you: “White men continue to be disproportionately represented in the equity partner ranks within multi-tier law firms.”

I didn’t expect the script to flip, but the NALP report suggested that women and people of color are making gains. The only question is whether those gains at the junior levels will have lasting momentum.

Highs, Lows for Black Lawyers

For Black lawyers, the yo-yo effect is even more pronounced. In contrast to past years, Black associates seem to be having a breakout moment. NALP reports that group had the biggest year-over-year rise, representing 5.7% of all associates in 2022, compared to 5.2% the year before.

Also impressive is that they made up 11.8% of the latest crop of summer associates, almost a 0.7% rise from the previous year.

But when it comes to partnership, Black lawyers are still in the dumps. Their rate increased by just 0.1% from last year, accounting for a scant 2.3% of all partners, equity and non-equity.

While the rise was also modest for Latinx partners (0.1% increase, representing 2.9% of all partners) and Asian partners (0.2% increase, representing 4.5% of all partners), there was hope that the rate of Black partners would be better.

Expectations ran high because it’s been over two years since the murder of George Floyd. Given Big Law’s grand vows to improve DEI in the aftermath of that tragedy, you’d expect better results on the Black partner front besides a measly 0.1% uptick.

“The most frustrating part is the Black partner front,” NALP’s new executive director Nikia Gray told me. “Their rate has been going upward but it’s been so incremental. At this rate, they won’t reach parity for another 30 years.” That same projection is also true for women, she added.

Some diversity experts also fear that the bump in Black associate rate is temporary and empty. “This increase occurred during the 2021-2022 hiring spree,“ Yolanda Young, the founder of Lawyers of Color, reminded me.

Noting how lawyers got axed during the great recession of 2008, she added, “If the past is prologue, these gains will be wiped out fairly quickly by attrition and layoffs.”

Faded Interest

That’s a pretty dire picture. Will Big Law discard its young talent and its commitment to diversity as soon as the market winds shift? That depends on whether you believe that Big Law’s embrace of the social justice movement was a passing fad or something deeper.

“I think people are genuinely concerned, though the intensity of the concern is not so great now,” Richard Banks, a professor at Stanford Law School and co-founder of the Stanford Center for Racial Justice, told me.

“I know firms that genuinely want to create an organization that’s inclusive for all people. ... The bigger issue is that these problems are difficult, and good intentions run against hard reality. Putting people on corporate boards is easy, but integrating them into organizations is a lot harder.”

Indeed, as NALP’s statistics show, it’s much easier to fill the junior ranks with Black associates, but integrating and promoting them to partnership is far more complex.

SCOTUS Fallout

What’s troubling, though, is that we might not even see these elevated numbers in the junior ranks after the US Supreme Court rules in the Harvard College and University of North Carolina admissions cases.

If the predictions are correct, the high court will likely end, or at least strike a hard blow at, affirmative action—which could severely damage the fragile pipeline.

“It’s too early to say what will happen, but we are very concerned about the issue,” NALP’s Gray said. “The impact is not just at the law school admissions level; it could also affect diversity fellowship programs and other diversity initiatives.”

Though she said, “I have not seen that much discussion about this issue on the law firm side—they’re taking a wait and see approach.” But law schools are gearing for action. “There are detailed discussions going on about how to recruit and what they can do legally.”

Stanford’s Banks, though, sees a silver lining to the expected demise of affirmative action. “This could lead to more democratization of the profession,” he said.

“Affirmative action has allowed us to labor under delusion that we should only focus on the top schools. It was always about putting the best butts on the most elite seats rather than looking at how stratified the system is. Maybe the end of affirmative action will cause employers to consider hiring from Howard instead of Stanford.”

Not in dispute is that Black lawyers continue to face daunting odds in Big Law. “The data tells us that what we’ve been doing is not working,” Gray said. “The way firms approach inclusion is flawed. It’s time to do a radical reassessment.”

‘Two Classes of Citizens’

Both in the report and during our conversation, Gray railed against the hierarchical structure of law firms, particularly how discussions about DEI focus almost exclusively on lawyers, creating what she calls “two classes of citizens—lawyers and everyone else” and “in people and out people.”

To make progress, she added, “firms need to reexamine the whole organization and look at it more holistically.”

That might be true, but it struck me as a bit pie-in-the-sky. Law firms are about as likely to flatten the distinction between lawyers and non-lawyers as they are to eliminate the billable hour.

So I pressed Gray about what glimmer of hope there is that diversity will continue to be a priority in the current system.

Her response: “Firms are facing a lot of pressure from clients for diversity, and that pressure has been steadily increasing after George Floyd’s murder and the national discussion about race.”

For firms that fall short, Gray said she’s noticed that “companies are starting to pull work.” But even independent of this pressure, she added, “while firms are businesses, they’re made up of individuals who want to do the right thing.”

The intent might be there to “do the right thing” but, as any child knows, that’s not enough.

To contact the reporter on this story: Vivia Chen in New York at vchen@bloombergindustry.com

To contact the editor responsible for this story: Alison Lake at alake@bloombergindustry.com