In-House Ethics

Volume 5 • Issue 4 • May/June 2019
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General Counsel Pen Open Letter on Diversity

What happens now?

In January 2019, more than 150 general counsel from top companies signed an open letter to law firm partners expressing dissatisfaction at the lack of diversity in many firms and applauding “those firms that have worked hard to hire, retain, and promote to partnership this year outstanding and highly accomplished lawyers who are diverse in race, color, age, gender, gender orientation, sexual orientation, national origin, religion, and without regard to disabilities.” The open letter pointedly frames its message noting that the signatory companies together represent hundreds of millions of dollars in legal spend, and it concludes declaring that purchasing power will be directed to “law firms that manifest results with respect to diversity and inclusion, in addition to providing the highest degree of quality representation.” (See the full letter here.)

Despite the headline-grabbing nature of the letter, there has been some notable pushback since the letter was released, characterizing the latest in a series of rhetorical gestures to diversity with few clear and actionable goals. Don Prophete, a partner at Constangy, Brooks, Smith & Prophete, wrote an op-ed in The American Lawyer titled “A Black Partner Responds to GCs on Law Firm Diversity.” As Prophete points out, this January 2019 open letter is indeed far from the first such push by top corporate counsel to assert the importance of diversity in the profession (see the 1999 “Diversity in the Workplace: A Statement of Principle” or the subsequent 2004 “A Call to Action: Diversity in the Legal Profession”). Nevertheless, as a black partner and top employment lawyer—and, as he adds poignantly, the only-ever black name partner in the Am Law 250—Prophete argues such efforts are “more public relations than actual practice … an activity that is all win with no drawback.” In Prophete’s view, these resounding proclamations do more harm than good, as their lack of accountability gives way to inaction and “diversity fatigue.” Indeed, research has shown that diversity—even when publically stated, as was the case with the 2004 Call to Action—is often ranked as a second-order factor in hiring outside counsel (see “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’”).

The signatories of the latest letter have even acknowledged that their open letter does not represent an overwhelming shift in approach to diversity. For example, rather than “reinvent the wheel,” Michelle Fang, vice president and chief legal officer at Turo, sees this moment as an opportunity to affirm profession-wide commitment and at the same time offer guidance to help companies make good on that promise. To that end, Fang’s group, General Counsel for Law Firm Diversity, has recently partnered with the Diversity Lab, an “incubator for innovative ideas and solutions that boost diversity and inclusion in law,” to publish a set of strategies for in-house counsel to improve their diversity efforts through legal spend. The tips and broader strategies focus on how to measure and set diversity goals, how to help develop a pipeline for diverse lawyers, and how to best support diverse lawyers along that pipeline. Time will tell whether and how this guidance is implemented and how others will build on this most recent push to address the lack of diversity that continues to plague the legal profession.

In-House Ethics Volume 5 • Issue 4 • May/June 2019

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