:the quality or state of having many different forms, types or ideas or elements
:the inclusion of different types of people in a group or organization.
—(Merriam Webster Dictionary Online, www.merriam-webster.com)
Recently, I attended one of our Kane County Bar Association Diversity Committee meetings chaired by Divya Sarang at the Kane County State’s Attorney’s office. It was an eclectic group attended by many different attorneys with views of how diversity in the legal profession can become more of a reality in Kane County than it is. After the meeting concluded, either Divya or Cat Battista, gave me the baton to write about this topic. I am not sure why—possibly, because my views on the topic are outspoken, and perhaps out-dated.
So, let’s recap the meeting. First, the attendance was exceptional. Equally comprised of women and men, persons of color, and government and private practitioners. The debate was spirited with individuals voicing strong opinions of the need for diversity in law firms as well as our judiciary. One attorney from a larger firm in Chicago opined that diversity is a given since the clients he serves require it. In other words, you do not get their business unless his law firm staff is diverse. This may be salutary in creating opportunities for lawyers at large firms. But there is a disturbing and, I believe, contrary view in an impressive recent publication, The Lawyer Bubble “A Profession in Crisis,” Harper, Basic Books (2013)[Bubble]. It provides insights on the reality of the law profession in 2013. More on this, later.
Another topic discussed was meritocracy and what that denotes in law firm culture. There is an interesting study on this which you may want to review. Examining the Relationship Between Merit and Diversity in Large law firms. Dr. Arvin N. Reeves, For the Defense (DRI, 10/2011). Dr. Reeves argues that a meritocracy should be a construct of which the building blocks should be ability as well as opportunity. It is argued that a true meritocracy focuses on eradicating inequality in opportunity. Hard to argue with that. Dr. Arvin’s premise is that opportunity to achieve is the door that is closed, at least in large law firms. It is this opportunity to achieve, Dr. Arvin posits, which will show true ability. (See also, Sustaining Pathways to Diversity (2009), Minority Corporate Counsel Association ). Meritocracy has several components which includes not only the value of what one produces, but the fact that a lawyer’s success is perceived to promote the goals of the law firm. Historically this has occurred in a non diverse milieu. This may not be what our legal profession should reflect, but its currency cannot be denied.
Diversity in Kane County public law firms and in our judiciary is a matter of public record. The largest law firms in the County are our State’s Attorney and Public Defender’s offices. Next, is our judiciary. Their record on diversity is admirable, although there is room for improvement if measured as a percentage of the population. Women represent 50.1% of the population in Kane County but only 30% of the judiciary (9 women out of 30 judges rather than 15 women out of 30 judges). Latinos represent 31.2% of the population but only 3% of the judiciary (1 Latino out of 30 judges rather than 9 Latinos out of 30 judges). African American representation almost mirrors the population percentage of 6% with 1 African American out of 30 judges. Numbers can confuse: but generally, for most of us they add up correctly.
In my small private firm, we have seven lawyers, all white men. For the last 20-plus years we have hired no less than five female lawyers. We have employed an ethnically diverse staff, mostly women-paralegals who have worked for us for many years. All of the female lawyers have departed either to start their own firms, left the practice, or went to work for corporations. So we have not been successful in maintaining gender diversity. This happened for a couple of reasons.
First. All of the white male attorneys that have worked with me came from a work ethic based on meritocracy. This has proven to be a standard that comprises long hours; attracting clientele based on our firm’s commitment to our local community by service on not for profit Boards; performing pro bono work; and perhaps, resistance to any challenge to that model. It is a business hegemony which has proven quite successful from an economic perspective.
Second. Without being smug, I believe all of the women whom have left my firm would say they valued the experience they gained while working with us. Yet, perhaps not on the standard they expected. In this regard, we failed to meet their expectations on various levels. These include: different life styles, such as family obligations, personal interests and time off away from work. Balancing one’s life between work and other interests is more important today than it was in prior generations, of which I am one. The cases they worked on were interesting on various topics. They engaged in meaningful legal work and were encouraged to become involved in the community, bar association activities, writing, and continuing legal education. Yet, none of them ever stayed.
A variety of reasons may exist. Two, seem paramount.
Initially, all of the women were young and right out of law school thereby creating a generational difference that is not primarily related to gender. All of my partners are white males who grew up in a law firm history where the paradigm for success came from the top down. The pyramid. Namely, a few at the top created opportunities for hard working lawyers who were all white males trying to get ahead or become equal with those at the perch. When they did, it caused law firm fissure. A few examples were: Reid, Ochsenschlager, Murphy and Hupp; Brady and Jensen; Puckett Barnett, and Dreyer, Foote and Sterit. Only two of those larger Kane County firms survive today.
Perhaps a better approach in today’s world might be to consider what the Illinois Association of Defense Trial Counsel is trying to achieve by utilizing reverse mentoring (Silverstein, “IDC Pairs Younger and Older Lawyers for reverse Mentoring” (Chicago Daily Law Bulletin, 1-21-14). The focus is on looking at what the younger generation may know and view as to what should comprise their working life. That seems apt. In short, instead of telling young lawyers what they should be doing, ask them what they think they should be doing. This program endorsed by the Illinois Supreme Court on Professionalism may prove to be worthwhile. We’ll see how it fares.
The second issue is where we all come from; namely, our training to become lawyers. This model also, needs a makeover.
Of course, in smaller arenas such as Kane County, the elephant in the room, which no one wants to acknowledge, is jobs, or the dearth thereof. Twenty four percent of those who earned legal degrees in 2000 are no longer practicing law (Survey, American Bar Association, Debra Cassens Weiss (2/8/14). In 2012, employment rates for the class of 2011 hit an eighteen year low: nine months after graduation only 66% were in jobs requiring bar membership…..only 55% of 2011 graduates had found full time, long term employment necessitating bar passage. (Bubble p. 26). In 2012, according to the National Association of Law Placement, 50% of law school graduates went to work in solo practice or in a firm of 2 to 10 lawyers. (Brave New Firms, Loo, Chicago Daily Law Bulletin, February 13, 2014). Many recent graduates are on their own, or enter a labor market where demand as well as opportunity is at a nadir.
Unfortunately, in part, this result falls to the ill-conceived curricula of our legal educators, of whom I am one. Client and practice skills are lacking in a world that is based on client requirements which must be answered with immediacy. If diversity in small firms in Kane County is to become a reality, it must be based on a better educational foundation for servicing clients. This, too, must come at a lower financial cost to obtain it. Law schools need to curtail their need to make money on law students. The current law school curriculum, with its continued love affair with the Socratic method, is not only archaic, but fails to train students to be able to act as lawyers. It is no coincidence that the Illinois Supreme Court has a basic skills course for newly admitted attorneys. (ILL. SCT. R. 790-798). Think about that.
Deans and Law Professors can postulate the value of having a diverse legal profession. You cannot argue with their view. But, until they prepare those who want to work in small firms (and that is most of us) to address the needs of clients and include the notion that those needs require knowledge on a variety of topics, law firm diversity will not occur. Maybe, if law schools focused on teaching students on how to conduct S. Ct. R 402 conferences, close a real estate transaction, or why jury instructions in a civil case are important, in lieu of theoretical ideas about the Fourth Amendment, the Rule in Shelley’s case, or the federal rules of civil procedure, we might provide law firms cogent reasons for hiring. Maybe if the Illinois Supreme Court expanded S.Ct. Rule 711 to private firms, law students could show why those firms need to hire them.
Too, the generational difference must face an eclipse. I believe this is happening, albeit slowly. Diversity need not cause division in private, small firms. The top down model needs to be challenged. Law school curricula must incorporate courses where law students start working in law firms as part of their education; and, for compensation. This is an opportunity for gender, racial and cultural diversity to flourish. It would give future lawyers the chance to show how they can achieve or show their mettle and give small firms a chance to recognize their ability by employing them. Their merit will show why they need to be included, not only based on ability but on attributes such as multi-lingual proficiency, cultural sensitivity and varied life experiences, all of which contribute to the energy and vibrancy of a pluralistic law firm environment.
Medical professionals have used this model for years with good success. They are called residencies. When medical students graduate they are ready to practice. Most law students are not so equipped. Law schools should consider this prototype instead of American Bar Association fiats to the contrary. Instead of making a doctorate in law a two or three year degree, maybe it should take longer and include a residency that results in practical knowledge and experience. We do not need more untrained lawyers. We have 90,000 lawyers in Illinois. Is that too many? We need more law students who understand that being a lawyer requires a commitment to the community where they practice. In this regard, less may prove to be more. If this occurs then perhaps we can realize that a true meritocracy includes diversity as one of its essential elements in the small firm business design in Kane County.
That’s my view, how imperfect that it is. Perhaps, you disagree. My being wrong may be a good thing. Let’s keep the discussion going so we reach the point where opportunity, minority status, and ability can comprise worth for the clients of the small, private law firms in which we serve. ■