It has taken nearly a decade for the legal industry to recover from Great Recession era lawyer job cuts that disproportionately affected women and attorneys of color, but there are new fears that the coronavirus crisis could erase progress made since.
Firms are turning to layoffs, pay cuts, and furloughs to weather the economic storm caused by the pandemic, and diversity experts are anxious that minority lawyers and the efforts designed to help them could bear the worst of the financial pain.
“Law firms have an opportunity to do the right thing here and that is to continue to ramp up on the diversity work that they are trying to do or have been talking about doing,” said Tsedale Melaku, sociologist and author of “You Don’t Look Like a Lawyer: Black Women and Systemic Gendered Racism.”
There’s a real risk law firms will make cuts that affect minorities more or let pipeline building and mentorship programs backslide due to the pressures of the Covid-19 crisis. But diversity advocates hope firms have learned the hard lessons from the last economic downturn.
“Now is the best time to stop talking and start doing,” Melaku said.
‘All Eyes On Them’
As law firms make personnel decisions ranging from layoffs to pay cuts, there’s “all eyes on them right now given what happened in 2008,” said Manar Morales, president and CEO of the Diversity and Flexibility Alliance, which helps law firms build diversity and inclusion.
Following the massive lawyer layoffs and de-equitization of firm attorneys during the Great Recession, which saw an estimated 10,000 lawyers lose their jobs, overall representation of women and minority lawyers in law firms declined between 2009 and 2010, according to the National Association for Law Placement.
NALP’s diversity data shows that minority associates during the Great Recession were especially hard hit. Only 3.89% of law firm associates in 2009 were Latinx, the data said, but that number trended downward, until finally beginning to turn around in 2012. Asian associates saw only very minor gains in representation during the years immediately following the recession.
It has taken an entire decade for overall black associate representation to recover. According to NALP data, it took until 2019 to again surpass the 4.66% mark this metric reached in 2009. However, the percentage of black women working as associates in 2019 still remained below 2009 level.
“In each economic downturn that we’ve seen, including the most recent one in 2008, the hardest hit populations were often minority populations and younger professional workers,” said Stacy Hawkins, professor at Rutgers Law and former diversity counsel to Holland & Knight.
Law firms tend to be much more focused on recruitment and hiring of minority attorneys rather than retention, so minority lawyers tend to be more junior, Hawkins said, making them more vulnerable to personnel and pay cuts in crisis times.
In 2019, associates of color made up 25.44% of law firm associates, according to NALP. By contrast, people of color made up only 7.6% of equity partners last year.
Making matters worse, studies have shown that minority attorneys tend to be outgrouped at work, giving them less access to billable hours and quality work opportunities. This dynamic could put them in harm’s way during a period of cutbacks.
“It’s one thing to tout your overall representation numbers,” Hawkins said of law firms. “But when at the end of the day you’re forced to make decisions based on productivity and the hardest hit attorneys are minority lawyers, then you’re failing.”
Aneesh Mehta, president of the South Asian Bar Association of North America, said minority lawyers certainly have reason to be concerned based on past experience. “But in the next months we’ll see how impactful and how engrained the past decade’s D&I efforts really were,” he said.
Keeping It Going
A shift of focus to minority attorney retention programs is one reason to hope for better this time around, according to Hawkins.
Also, since the Great Recession, pressure from clients for more diversity in their outside counsel has increased and changed the approach many firms take in navigating their diversity and inclusion initiatives.
“Cooley definitely has learned from the past recession and is placing more value on the continued focus on diversity and inclusion,” said Amie Santos, that firm’s director of diversity and inclusion.
The firm has been upfront and openly talking about the mistakes of the past in the legal industry, and the need to ensure equitable work distribution, which is paramount as its attorneys shift to work-from-home arrangements, Santos said.
Shifting from a physical space to a virtual one is another aspect of the pandemic that poses drawbacks for minority attorneys, particularly younger ones, who have benefited from in-person mentorship and training opportunities.
“Since there’s not an opportunity to run into your mentee in the hall or grab lunch on the fly, mentoring definitely becomes tougher,” said Caren Ulrich Stacy, founder and chief experimentation officer at Diversity Lab, an incubator for legal industry diversity and inclusion work.
“With the high levels of personal and professional uncertainly in the world, mentoring and sponsorship are critical right now — especially for diverse lawyers who were potentially feeling isolated or undervalued in the workplace prior to the pandemic,” she added.
It was already very difficult for attorneys of color to gain access to mentorship, and perhaps more importantly, sponsorship, which is key for minority associates trying to make partner, Melaku said.
She said the onus should be on partners, because of their seniority, to strengthen connections during this period of remote work.
“This is also a referendum on partners and how they think about themselves in terms of the relationships they have developed previous to this pandemic with associates of color that they can now foster in a virtual environment,” she said.
One firm, Haynes and Boone, has several check-ins or “snack breaks” with its diverse associates per week, said Jennifer Reddien, the firm’s director of diversity and inclusion.
“I find that with mentorship programs, the burden is on an associate to reach out to a mentor,” Reddien said. That burden is even harder with the potential awkwardness of a video call. So for the first few weeks of remote work, Reddien instead asked partners to reach out to their mentees and schedule some time to connect.
Advocates believe that strong contributions from leadership are fundamental to turning firms’ talk about diversity into action, especially because the Covid-19 crisis is only compounding already longstanding legal industry inequality.
Otherwise, said Melaku, “it’s just going to create an even harder mountain to climb and we haven’t even climbed the first one.”