Diversity is a second-order consideration when it comes to choosing whom to hire for important legal work. This was among the conclusions highlighted by Prof. David B. Wilkins during his colloquium presentation to Temple Law faculty earlier this year. Prof. Wilkins is among the nation’s foremost authorities on the legal profession in his role as Lester Kissel Professor of Law at Harvard Law School, where he also serves as Director of the Center on the Legal Profession and Vice Dean for Global Initiatives on the Legal Profession. He has authored more than 80 articles on the legal profession and is co-author of a leading Professional Responsibility casebook.
The issue, said Wilkins, is whether this is good news or bad news. In a draft book chapter he presented, The Action After the Call: What General Counsels Say about the Value of Diversity in Legal Purchasing Decisions in the Years Following the ‘Call to Action,’ (co-authored with Young Kyu Kim), Wilkins finds that general counsel of S&P 500 companies report a number of factors count more than diversity when they are making decisions about who to hire in significant legal matters. At first glance, these results may be seen as disappointing when one considers the efforts that have been made over the years to encourage legal services purchasers to consider diversity in their decision-making.
…as workforces diversify, general counsel in those companies report an increased attention to diversity in making hiring decisions.
Wilkins focused primarily on the effects of Richard Palmore’s 2004 Call to Action. Palmore was then General Counsel at Sara Lee, after working as a minority partner in a major Chicago law firm. Call to Action urged companies to make diversity a significant criterion when hiring outside counsel for important matters and to end or limit relationships with law firms that failed to make progress. Hundreds of companies signed the Call and, “supplier initiatives and diversity reporting have become de rigor at virtually every company in America.” Nevertheless, Wilkins’ empirical results suggest that the efforts after the Call have achieved less than proponents had hoped for.
What general counsel report as most influential in their hiring decisions are “relationships,” “results in similar cases,” and “reputation.” Focusing on relationships, Wilkins observes that firms have begun to consolidate their legal work in fewer law firms which better understand their business and with whom they have developed closer ties. The refrain, “We hire lawyers, not firms,” a dominant narrative during the 1980’s through the 2000’s, seems to have been replaced today with “stickier” relationships, infrequent terminations, and a smaller number of firms performing work for large companies.
Relationship driven decision-making might be seen as resulting in insularity and homogeneity in hiring decisions, precisely those things that diversity advocates were targeting in Call to Action. On the other hand, it provides an opportunity to those of us, including Wilkins, who teach about the importance of relationships to effective lawyering. Qualities of informed judgment, attentiveness, problem-solving ability, creativity, preparation, and practical wisdom are what we seek to develop in our students though experiential education, opportunities for interaction with practicing lawyers, and examination of realistic problems. Temple Law has a strong set of curricular offerings in those areas.
Additionally, Wilkins offered another intriguing avenue for optimism. He found workplaces publically affirming their diversity commitments accord a higher value to diversity in making decisions. Moreover, as workforces diversify, general counsel in those companies report an increased attention to diversity in making hiring decisions. Both of these observed relationships give rise to optimism as demographics suggest that both are on the rise.
Moreover, while most general counsel tend to rely on their own judgment in hiring outside law firms, a significant minority utilize a more external focus, such as conversations with those outside the company and public rankings. Such external focus is associated with terminating relationships with law firms more frequently. Counsel with such characteristics turn out to value diversity more highly in their decision-making, along with other factors internal to law firms, such as ethical infrastructure, HR practices, and quality control systems. In other words, for some general counsel, diversity is one the metrics internal to the firm’s organization that matters in their decision-making.
The good news in Wilkins’ paper requires a close look at the data. While diversity remains overwhelmingly a second-order consideration among general counsel at S&P 500 companies, he identifies factors that could portend a more promising outlook for those, like him, who support increased diversity in hiring.
The chapter Professor Wilkins presented is forthcoming in a book he is editing (with Robert Nelson, Spencer Headworth, and Ronit Dinovitzer) entitled Diversity in Practice: Race, Gender, and Class in Legal and Professional Careers (Cambridge University Press 2015). Professor Wilkins was one of several leading legal scholars who shared their work on ethics and governance, often as it affects business law, with Temple Law faculty this year. Also taking part were David J. Luban, University Professor and Professor of Law and Philosophy, Georgetown University Law School, and Class of 1984 Distinguished Chair in Ethics at the Stockdale Center for Ethical Leadership, United States Naval Academy (2013-15), and William H. Simon, Arthur Levitt Professor of Law, Columbia Law School, formerly the William W. and Gertrude H. Saunders Professor of Law at Stanford Law School. Prof. Andrea Monroe chaired the colloquium committee and brought these highly distinguished guests and others to the law school.
Professor Eleanor Myers specializes in Professional Responsibility and also teaches in the Business curriculum, including Introduction to Business Organizations, Corporations, and Contracts. In addition, she assisted in the development of the award-winning Integrated Transactional Program and in the development of the first year Introduction to Transactional Skills class. In 2001 she won the Lindback Award for Distinguished Teaching. She publishes in the area of Professional Responsibility and served as the Associate Reporter on the Third Circuit Court of Appeals Task Force on the Selection of Class Counsel.