The Year So Far

Volume 6 • Issue 6 • September/October 2020
Cover
Main Article Image

The Year So Far

Taking stock of where we have been

These are truly unprecedented times. The year 2020 has brought to bear a set of interrelated global crises that are challenging every aspect of society—from going to school and to work, to seeing family or watching a sporting event, to going out to dinner or a movie. Most acutely, there is an ongoing public health crisis that needs little elaboration. There is not a country or industry or person in the world that has not been impacted by the COVID-19 virus. The pandemic’s impacts have been, first and foremost, human. As of mid-September 2020, according to Johns Hopkins University data, we have seen 31 million diagnosed cases and 965,000 deaths. While the virus has hardly spared any region or country, the United States tops these lists with nearly 7 million diagnosed cases and more than 200,000 deceased. Moreover, research shows that infections and deaths are more common among many minority groups, including Black and Hispanic populations. The Centers for Disease Control and Prevention’s own website states that “there is increasing evidence that some racial and ethnic minority groups are being disproportionately affected by COVID-19,” going on to list issues like discrimination, healthcare access and utilization, occupation, education, income, wealth gaps, and housing as some of the key factors that contribute to increased risk.

These current crises will have deep, systemic implications for the legal profession.

As this issue of The Practice goes to publication, it is the start of a new school year for tens of millions of children and young adults. Many school districts and universities around the country remain in remote status, as they have been since March 2020. The long-term impacts of these education disruptions are massive (Figure 1). The workplace, too, remains at home in significant numbers. At the end of June 2020, according to Stanford economics professor Nicholas Bloom, 42 percent of the American workforce were working from home full-time, 33 percent were not working due to the “savage impact of the lockdown recession,” and the remaining 26 percent were primarily composed of essential workers. Bloom concludes: “[B]y sheer numbers, the U.S. is a working-from-home economy.”

Chart shows forecasts of learning lost per grade between 3rd grade and 8th grade. The learning lost is estimated to begin earlier because of earlier school closures.

Figure 1. Source: Brookings Institution

The global pandemic, and the subsequent disruption to work and life, have also produced a growing economic crisis. On an aggregate level, the World Bank predicts a 5.2 percent contraction in global GDP in 2020. This is a sobering figure, but even it fails to capture the full impact on individuals and organizations. Small businesses, for instance, often bear the brunt of COVID-related shutdowns with predictions that many will not survive. Unemployment rates in the United States, likewise, paint a startling—and constantly developing—picture. According to data from the Pew Research Center, in February 2020 unemployment in the United States was at a historic low, hovering just around 3.8 percent. As a result of the pandemic, that number jumped to 13 percent in May, swelling to 14.4 percent in April. (By comparison, unemployment during the global financial crisis, according to the same Pew data, peaked in January 2010 at 10.6 percent.) While unemployment has dropped to around 8.4 percent as of August as restrictions loosened, the full economic toll remains to be seen. Similar patterns are evident across Europe and in other developed and emerging economies. It is worth noting that, as with COVID-19’s health impacts, unemployment rates in the United States among minorities were substantially higher than for whites (Figure 2).

Graphic shows Hispanic women experience a steeper rise in the unemployment rate than other women in COVID-19 downturn.

Figure 2. Source: Pew Research

Meanwhile, in the midst of the unfolding public health and economic crises, the death of George Floyd on May 25, 2020, set off a flurry of social justice demonstrations and calls for systemic change across the United States. According to NBC News (Figure 3), in the week after Floyd’s killing, there were more than 550 protest, rallies, and vigils across the country. In the months and weeks since, the United States has seen continued collective action to address social justice issues, including most recently in response to the decision not to charge officers in the Breonna Taylor case with the most serious crimes (for more on how the legal profession is coming together to address some of these issues, see “Rallying Around Racial Justice”). As some have noted, the size and scope of protests that began in May 2020 and that extend to present have been unlike those seen since the 1960s during the height of the civil rights movement.

Map of the United States shows nationwide outrage at the death of George Floyd, with more than 550 protests, rallies, and vigils taking place across the country.

Figure 3. Source: NBC News

Calls for social justice are reverberating in the business community and other actors as well. Most recently, organizations from NASCAR and the U.S. military (which both banned the confederate flag) to Princeton University (which removed Woodrow Wilson’s name from their school of public policy) to the state of Mississippi (which removed the confederate flag from their official state flag) have changed policies and symbols in light of the social justice movement spreading across the nation. Moreover, blue-chip companies, including Apple, Cisco, Facebook, and Verizon, have contributed more than $100 million to social justice organizations; companies like Sephora are pledging 15 percent of their shelf space to minority-owned businesses; and banks like Bank of America are pledging $1 billion in minority-targeted lending. As we examine further below, not only are these forces impacting the legal profession, but lawyers are often at the very center of initiatives to address them.

It is important to note that the challenges of COVID-19 and the types of social injustice highlighted by recent movements—as well as the many ways they intersect—have revealed more systemic and deeper structural cleavages that are likely to remain long after the acute pains of the current circumstances have faded. These include debates about the potentially adverse impacts of globalization, questions over reimagining capitalism, and grappling with systemic racism and other civic cleavages. Moreover, many of the underlying challenges are in fact accentuating forces that predate 2020. For instance, a core aspect of COVID-19 is its global nature. As we have written in The Practice, globalization has—for better and for worse—penetrated all segments of society. Similarly, while the pandemic may have forced many to work from home (WFH), there is evidence that work patterns were already beginning to shift—albeit incrementally—before the crisis. For instance, according to the Bureau of Labor Statistics (BLS), in 2017–2018 nearly 30 percent of wage and salary workers could WFH and 25 percent did WFH at least occasionally. Recent years have also seen Milton Friedman’s famous assertion that the “social responsibility of business is to increase its profits” challenged by a number of companies: in 2018 BlackRock declared that it would look beyond the bottom line to invite in businesses that “contribute to society,” followed thereafter with a second statement that it would stop investing in companies that present a “high sustainability–related” risk; in 2018 the Business Roundtable amended its definition of the purpose of a corporation to include duties to all the company’s stakeholders, including customers, employees, supplies, and communities; in 2020 Goldman Sachs announced that it would stop participating in IPOs for companies with all-white-male boards; and in July 2002 the World Economic Forum called for a “great reset of capitalism in the wake of the pandemic.”

In the end, the data presented is offered as reference points that will allow us to examine change over time.

Given all this, it is not surprising that these current crises—their acute impacts, the changes leading up to them, and the long-term cleavages they have exposed—will have deep, systemic implications for the legal profession. Understanding these implications requires both assessing current effects and creating a framework of analysis. Because the very natures of these challenges are ongoing, this article and this issue of The Practice set out to present a picture of how the profession has responded in the short term as well as a structure for understanding the challenges themselves by highlighting a set of critical issues. Moreover, because there is so much noise—so much information—to sift through, we attempt to curate the data available to help provide a snapshot of how the profession has responded to the impacts of the novel coronavirus and the social justice movements over the last six months.

We look at two big areas of the legal profession, the corporate sphere and legal education, where they intersect with the ongoing COVID-19 and social justice crises. We do so mindful of the somewhat different nature of the challenge of the pandemic and the challenge of social injustice—the former, as the name implies, is a “novel” phenomenon while the latter is hardly new at all. We therefore take slightly different approaches to each.

With respect to COVID-19, we present some of the most interesting data on the legal profession available, starting with the onset of the pandemic in much of the world around March 2020 and extending into September 2020. Given the speed with which the virus took hold, reactions were often, just that—reactionary. The critical question as we move into the fall and beyond will be how those in the corporate sector and legal education formulate their long-term strategies.

With respect to the recent calls for social justice and their responses, we offer background data and perspective on the state of the profession in the lead up to George Floyd’s death as well as some initial reactions in and around the corporate legal space and legal education. Unlike around COVID-19, there has been comparatively less systematic data collection regarding how the profession has responded to the demonstrations and demands for justice that have taken place in 2020. However, as with COVID-19, the data that does exist—and the calls to action that the profession has made thus far—offer some benchmarks for assessing whether real change is occurring overtime. Again, the key question remains as to where the profession will be in six months, a year, and beyond.

We are also mindful that these are not the only key areas—for example, as we featured in our last issue, there are critical questions around the operation of remote courts. In the end, the data presented is offered as reference points that will allow us to examine change over time. The information is intended to be both informative about the profession’s experiences over the past six months and useful as a framework for assessing critical areas of transformation in the months and years ahead. And viewed alongside “Playing Through the Pandemic,” where we examine how a major law firm, Proskauer Rose, and a major client, Major League Soccer, navigate the public health crisis; “Rallying Around Racial Justice,” where we follow one new initiative launched by the ACLU of Louisiana in the aftermath of George Floyd’s death, the Justice Lab; and our Speaker’s Corner featuring former Federal Reserve governor Daniel Tarullo (“Radical Signs”), who offers perspective on the macroeconomic environment, we hope that this article and issue provide interesting figures about where the legal profession has been in the year so far, and a framework for assessing its development going forward. In the coming months, we will revisit these issues, tracking what has worked and what has not, what has changed and what has remained constant.

COVID-19 and the corporate legal market

Below we offer baseline data about how the public health crisis over the past six months has impacted the legal industry, and in particular law firms and in-house legal departments. Again, given the ongoing and evolving nature of the pandemic, these data points are intended simply to provide a snapshot in time and are by their very nature retrospective. Indeed, given that the data is largely based on information gathered between March 2020 and August 2020—from the end of Q1 as the pandemic took hold and throughout Q2 as the entire world was in lockdown—the critical question going forward will be if (and how) these numbers change as longer-term strategic thinking begins to take hold. Here, we shine a light on four key areas impacted by the pandemic: leadership, legal demand, employment and pay, and strategies and tactics used for coping with the new normal, including WFH, technology, communication, and well-being.

Initial data suggests law firm and in-house leadership has done a good job during the heart of the crisis.

Leadership

Overall, law firm personnel have been largely supportive and pleased with leadership decision making during the high point of the crisis. According to a May 2020 Loeb Leadership report of more than 25 law firms based on a cross section of respondents, including managing partners, partners, associates, and staff, 84 percent strongly agreed or agreed that their firm “is managing the impact of COVID-19 effectively”—an extremely high number despite the challenging nature of the situation. Moreover, more than 90 percent of respondents felt that the safety of the team was the top priority for their firm, and more than 85 percent believed that their firm was going to be “OK”—again, strong indications that at least so far, firm personnel are broadly supportive of leadership decisions. Indeed, just 16 percent felt that the crisis had led them to seriously think about leaving their firm. In short, initial data suggests leadership has done a good job during the heart of the crisis (see “Communication” section below).

A prompt from the Loeb Leadership survey asks respondents to agree or disagree with the statement, "I am confident that my firm is managing the impact of COVID-19 effectively." More than 80 percent agree or strongly agree.

Figure 4. Source: Loeb Leadership

A similar feeling is apparent in in-house legal departments. According to an Association of Corporate Counsel (ACC) survey of in-house lawyers in June 2020, in line with their law firm colleagues, legal department respondent lawyers reported generally positive attitudes toward their work and their companies during the pandemic. As a case in point and as Figure 5 depicts, nearly 85 percent reported feeling positive toward their work at their company. Moreover, as we see below, in-house lawyers gave positive marks for leadership communication. As with law firms, this provides some evidence that in-house lawyers by and large viewed leadership decisions positively in the midst of an uncertain and difficult period.

A prompt from an Association of Corporate Counsel survey asks respondents to agree or disagree with the statement, "Generally, I am positive towards work at my company." More than 80 percent agree, slightly agree, or strongly agree.

Figure 5. Source: ACC

Legal demand

As one might expect, COVID-19 produced a mixed effect on the overall demand for legal services. On a broad level, according to a Citi Private Bank report based on a sample of 196 firms (79 Am Law 100 firms, 49 other Am Law 200 firms, and 68 other niche/boutique firms), revenue growth was up 5.3 percent in the first half of 2020, driven almost entirely by rate increases (up 5.6 percent) and modest demand growth during Q1 (2.6 percent). Things changed during the latter part of Q1 and throughout Q2 when the full extent of the pandemic hit. Demand plummeted during Q2, falling 4.2 percent from the previous year, with nearly two out of every three firms reporting a demand decline during the first half of 2020. Moreover, of the 155 firms that reported half-year results in 2018, 2019, and 2020, 27 percent reported a demand drop in the first half of 2020 after experiencing an increase in 2019. Citi data suggested that international firms are faring better than regional firms, the latter of which reportedly suffered the biggest decline in demand and rate increases. Despite these troubling numbers, is important to note that there are indications that the slump may not be as steep as initially thought, particularly as clients have largely continued to pay on time and firms have not had to increase discounting.

This Citi data is supported—and in the case of legal demand, reflects an even more drastic drop—by Thomson Reuters data. Figure 6 highlights these trends, including a massive 5.9 percent drop in legal demand in Q2 2020 as compared with 2019. The data also indicated a large productivity drop, which was most likely driven in large part due to drops in overall demand. Q2 daily demand for all lawyers across the sample was down 7.1 percent (Figure 7). Importantly, it was actually up 4.4 percent for partners and down 9.4 percent for associates (for more on the impact to lawyer workloads, see “Work from Home” section below).

Graphic from Thomson Reuters shows Q2 2020 trends, including a 5.9 percent drop in legal demand and a 7.2 percent drop in productivity as compared with 2019.

Figure 6. Source: Thomson Reuters

Graphic from Thomson Reuters shows that average daily demand per FTE for all lawyers in their sample was down 7.1 percent in Q2 2020 as compared with 2019.

Figure 7. Source: Thomson Reuters

It should be stressed, however, that drops in demand need to be contextualized. On the one hand, certain practice areas reported significant drops in Q2 2020 as compared with Q2 2019, including litigation (-7.5 percent), tax (-9.1 percent), real estate (-12.3 percent), general corporate (-5.5 percent), and patent production (-2.5 percent) (Figure 8). Moreover, according to Refinitiv data, Q1 2020 global M&A activity fell 28 percent compared with the same period in 2019. On the other hand, other areas have seen an uptick in work, such as bankruptcy, labor, and life sciences. To help deal with these new workflows, as well as to guard against potential layoffs, some firms reported that they are now cross-training lawyers and transitioning them (if only temporarily) to busier practices (for more on practice-area impacts and workloads, see “Work from Home” section below). It remains to be seen how Q3 and Q4 numbers develop; however, as outlined in “Radical Signs,” the economy may see both a sharp rebound as things open back up—though perhaps not to prepandemic levels—followed by a much longer period of slower, gradual growth.

Graphic from Thomson Reuters shows practice demand growth in Q2 2020 as compared with 2019, with drops in litigation (7.5 percent), corporate (5.5 percent), and real estate (12.2 percent) while other areas like bankruptcy (6.2 percent) increased.

Figure 8. Source: Thomson Reuters

Employment and pay

The short- to medium-term impacts on legal jobs due to the pandemic are both substantial and ongoing. According to the BLS, in April 2020 much of the United States—and in particular major business hubs like New York, Chicago, and Los Angeles—went under stay-at-home orders, resulting in the legal industry shedding nearly 65,000 jobs. In percentage terms, legal industry jobs experienced -5.9 percent growth in April, -4.6 percent job growth over the previous six months, and -3.6 percent growth over the previous 12 months (see Figure 9). Notably, legal industry job losses were far outpaced by job losses more generally, particularly in the hospitality and retail industries. It is worth noting that BLS’s “legal services” classification is a broad category including lawyers working across all sectors (for example, private practice, government, etc.) as well as those supporting the legal industry (for example, administrative support within law firms).

Looking at major law firms specifically, Wells Fargo Private Bank’s legal specialty group reports that in May 2020 lawyer layoffs were modest, with associate numbers dropping by just 0.9 percent and nonlegal staff dropping by 4.1 percent. While major law firms largely avoided more general legal industry layoffs, there is no doubt employment trends have shifted. It should be stressed that before the pandemic, firms were reporting significant increases in lawyer head count. For instance, during 2019, the 500 largest firms in the United States reported, on average, a 2.5 percent increase in lawyer head count. Indeed, the profession was reporting job increases as late as February 2020 granted that particular figure ultimately clocked in at just 0.2 percent. Moreover, some firms—including Baker & McKenzie, Ropes & Gray, White & Case, Reed Smith, Hogan Lovells, and Jones Day—delayed first-year associate start dates, with recent reports indicating the adoption of voluntary associate deferral programs.

On an industrywide level, however, there are indications that the bleeding has stopped. According to BLS data, roughly 3,500 jobs were added in May (.6 percent growth), 7,500 in June (.7 percent growth), and 1,900 in July (.2 percent growth). At the same time, it is important to stress that current job-growth numbers do not make up for the wider loses over the preceding months. Q4 will offer a telling picture with respect to how the industry is viewing medium- to long-term growth strategies, which will undoubtedly be driven by broader macroeconomic conditions (see “Radical Signs”).

Graphic from the Bureau of Labor Statistics shows that legal industry jobs experienced -5.9 percent growth in April 2020.

Figure 9. Bureau of Labor Statistics

When examined on a more individualized basis, there appears to be significant anxiety about job security, even despite the relatively modest numbers at major law firms. According to the Loeb Leadership survey, a significant portion of law firm employees were worried about losing their jobs—about one-third. Understandably, of those who reported being worried about their jobs were most associates, staff, and those younger than age 35. These overall numbers are supported by a Major, Lindsey & Africa/Above the Law (MLA/AL) survey of more than 1,300 law firm associates. Conducted in April 2020 during the heart of the pandemic (and released in May), it found that slightly more than 50 percent of respondent associates felt that job security was their number one concern, followed by cost-cutting (for example, pay reductions) at 21 percent (Figure 10).

Graphic from Major, Lindsey & Africa and Above the Law shows associate survey respondents' highest concerns. Most said "Job Security" (51.56 percent) with "Cost Cutting Measures" coming in a distant second (23.00 percent).

Figure 10. Source: MLA/AL

While layoffs have been less common at major law firms than in other areas of the broader legal industry and economy, pay cuts and reductions were common. According to data from more than 80 firms from which the Center on the Legal Profession collected data, including many of the Am Law 20, about 85 percent instituted some type of pay cut or reduction. However, when compared with the global financial crisis, during which pay cuts and reductions were often focused on staff, data suggests a more equitable approach with 35 percent of firms in the sample noting “everyone” was impacted; 34 percent, just those making over a certain amount; and 13 percent, partners only). Indeed, data suggests that less than 5 percent cut or reduced associate pay only, and just 6 percent targeted staff only (the remaining 6 percent was a mixture of categories).

Meanwhile, according to the MLA/AL study, virtually all respondents (just less than 95 percent) stated that despite the pandemic, their target billable hours had not changed despite both the changed economic conditions as well as WFH setups. Moreover, there are reports that firms are attempting to cull unproductive lawyers—including partners. For instance, in an Altman Weil survey of managing partners of firms with more than 50 lawyers started prior to March 2020, with data collection extending through the pandemic, 71 percent of respondents who took the survey during COVID-19 indicated that they would remove “underperformers” in a recession, as compared with just 60 percent who responded before the pandemic had fully set in during March. Indeed, after “increasing cash reserves,” removing underperformers was by far the most common response to guard against recessionary effects.

On a more positive side, despite the ongoing challenges to firms brought on by the pandemic, more than a dozen Am Law 200 firms have begun to walk back their pay cuts as of August 2020. However, while firm performance has been better than expected—Citi data found that expected Q2 declines were not as steep as anticipated, but that the continued economic slowdown may limit full pay restoration, with fall 2020, final Q3 results, and Q4 forecasts serving as critical barometers. (That being said, as this issue was going to publication, reports of firms beginning to pay out bonuses—including those specifically tied to COVID-19 work—were surfacing.)

Compared with law firms, job- and pay-security questions in in-house legal departments appears more stable. According to an August 2020 ACC survey of in-house legal teams, 50 percent of respondents were not worried about losing their jobs and 25 percent reported being only “a little” worried. Indeed, while pay cuts and reductions were common in law firms, they do appear less present in in-house legal departments. Overall, only 11 percent of participants indicated that there were terminations or layoffs in their legal department, and 10 percent reported furloughs being implemented. With respect to pay, just 23.5 percent of respondents reported a reduction to their base pay and, of those who reported no reduction (76.5 percent), almost two-thirds (62 percent) did not predict that a pay cut or reduction was coming. Despite this stability in pay, however, more than 50 percent of respondents noted that their team is under more cost-reduction orders as a means of preventing more general layoffs and furloughs throughout the company.

The new normal

Undoubtedly one of the most drastic changes to the legal industry as a result of COVID-19 was the closure of physical workspaces and therefore the need to engage in new ways of work. As we have covered previously in The Practice, this movement toward new ways of work predates the public health crisis, with many firms and in-house legal departments having hired and empowered chief innovation officers and legal operations heads to rethink how work is accomplished, including the use of technology, and many have stressed the importance of technology and systemization (see “Adaptive Innovation”). However, as preliminary Center on the Legal Profession data suggests, these initiatives were often met with resistance and did not always spread throughout their organizations. The COVID-19 pandemic has likely changed all this. Below we highlight some initial data about how this new normal has developed.

Work from Home. By mid-March virtually all law firm employees—lawyers and staff—were working from home. By June, according to National Association for Law Placement data, around 35 percent of respondent firms had partially reopened or planned to do so by the end of June, but 39 percent were still unsure. While sending employees home was arguably a straightforward decision, it was not entirely clear at the time how performance and work would be impacted. Initial reports suggest a positive story. According to the Loeb Leadership study, 65 percent of those working from home agreed or strongly agreed that they could “contribute to the firm in the same way” as they do in the office while at home (Figure 11). It is worth noting, however, that only 31 percent of partners and managing partners in the study expressed this sentiment, suggesting a difference between leadership and line lawyers and staff. More than 92 percent—a number that now includes most senior lawyers—reported that they agreed or strongly agreed that they were meeting client expectations, notwithstanding their work environment (Figure 12, and see “Playing Through the Pandemic,” in which MLS president Mark Abbott discusses the client-firm relationship with Joe Leccese of Proskauer). More than three-quarters of respondents noted that their firms were supportive of finding “innovative solutions” to getting work done in a virtual environment.

A prompt from the Loeb Leadership survey asks respondents to agree or disagree with the statement, "I feel confident I can contribute to the firm in the same way as I do when I am in the office." More than 60 percent agree or strongly agree.

Figure 11. Source: Loeb Leadership

A prompt from the Loeb Leadership survey asks respondents to agree or disagree with the statement, "I feel we are meeting our clients' expectations at this time." More than 90 percent agree or strongly agree.

Figure 12. Source: Loeb Leadership

While the movement online was notable, the question remains whether this movement is here to stay. According to the Loeb Leadership study, more than two-thirds of lawyers and staff indicated that they would like to continue to WFH at least a few days a week even when it is safe to return to the office, including more than half of partner and managing partners (for more on this, see “Playing Through the Pandemic”). The vast majority of associates (95 percent) also believed that such policies would likely be retained, at least to some measure (Figure 13). There is already evidence that some of these changes will stick. Linklaters, for one, recently announced that 50 percent of its lawyers and staff will be able to WFH over the long term. Their managing partner, Andrea Arosio, said in a release:

The Covid-19 pandemic and our enforced remote working experiment has given us an opportunity to take stock and revisit how we approach agile and remote working. Our recent experience has demonstrated that, whilst we are a people-focused business and collaboration is key, remote working has worked remarkably well and we can deliver high quality work whilst working remotely. Conversely, it has also reinforced the huge benefits we and our clients obtain from face to face interaction and the value of our offices as hubs of teamwork and learning and this policy does not detract from that.

Being agile is essential to our business, meeting the needs of our people and our clients. We are committed to fostering our agile culture which encourages our people develop working arrangements which suit their needs along with those of the firm and our clients.

A prompt from the Loeb Leadership survey asks respondents to agree or disagree with the statement, "When we get through this crisis, I would like my job to stay remote even if it's only for a few days a week." More than 65 percent agree or strongly agree.

Figure 13. Source: Loeb Leadership

Data on workload during WFH conditions suggests a mixed picture. As the Citi report notes, “We have heard from some firms that a lot of the drop-off [in demand] has been experienced by associates and other timekeepers, while senior lawyers and partners tended to be busier”—a finding that the TR/Peer Monitor data cited above on lawyer demand confirms. This is likely driven by both decreased demand in certain practice areas (more on that below) and partners keeping the available work for their own billables.

It therefore should come as little surprise that the MLA/AL study shows nearly 40 percent of respondent associates reported that their workload decreased under WFH conditions, compared with 40 percent who reported that it had stayed the same and 21 percent that it had increased.

Graphic from Major, Lindsey & Africa and Above the Law shows associate responses to the question, "Since working from home, has your workload increased, decreased, or stayed the same?" Roughly 39 percent said their workload had decreased, roughly 39 percent said their workload had stayed the same, and roughly 21 percent said their workload had increased.

Figure 14. Source: MLA/AL

There is indeed evidence that workload has changed differently depending on the practice area in question. As Figure 15 illustrates, those in bankruptcy and healthcare reported significant increases in workload, while those in corporate, IP, tax, rate, and litigation reported significant reductions. Workloads therefore appear to be highly correlated with overall practice area legal demand, though it remains to be seen how workloads might be impacted by those who WFH absent an endogenous factor, such as COVID-19.

Graphic from Major, Lindsey & Africa and Above the Law shows reported changes in associate workload by practice area. Litigation, real estate, tax, IP, and corporate all largely decreased or stayed the same. Bankruptcy and healthcare largely increased or stayed the same.

Figure 15. Source: MLA/AL

A similar story could be told with respect to in-house lawyers as the vast majority of companies shifted to remote operations—nearly 90 percent, according to a June 2020 ACC survey. Of those working from home, 53 percent reported working more hours, 40 percent reported working about the same number, and just 7 percent reported working less. Another 90 percent of respondents noted that there were changes to WFH policies as a result of the pandemic; however, respondents were split on whether they would continue in a post-COVID-19 world—47 percent believed that they would and 44 percent believed that they would not.

Technology. Unsurprisingly, technology has been a critical component of work during the pandemic. Within law firms, according to the MLA/AL survey, the vast majority of associates (just over 85 percent) reported that they had the technology and resources needed to WFH. Relatedly, according to TR/Peer Monitor data, Q2 firm investment in technology increased 4.6 percent in Q2 2020 as compared with 2019 (with drastic cuts to marketing and business development, down 18.5 percent, and office experiences generally, down 5.6 percent).

In-house teams also reported a substantial increase in their comfort with using online, work-related technology as a result of the changes mandated by COVID-19. According to July 2020 ACC data, most offices (83 percent) provided equipment. When it came to specific technological tools, nearly 95 percent of respondents reported the use of videoconferencing increased upon the transition to a WFH plan, with 81 percent reporting it did so “substantially.” In-house teams were also using project management tools as a way to get work done: 70 percent of respondents said they were using Microsoft Teams, followed by 43 percent using Zoom (see Figure 16). While before the pandemic just 22 percent were “very comfortable” with these tools, more than 70 percent were very comfortable just a few months later.

A prompt from an Association of Corporate Counsel survey asks respondents, "What communication tools is your organization using to get work done remotely? (please select all that apply.)" Nearly 70 percent reported using Teams and 43 percent reported using Zoom. Other tools included Skype for Business (36.5 percent), Webex (31 percent), text messaging (22.5 percent), and Slack (10 percent) among others.

Figure 16. Source: ACC

A prompt from an Association of Corporate Counsel survey asks respondents, "Please rate your degree of comfort with videoconferencing as an online work-related communication tool pre and post COVID-19?" Pre-COVID, the plurality reported being somewhat comfortable (46 percent) while post-COVID, the majority reported being very comfortable (71 percent).

Figure 17. Source: ACC

Communication. By most accounts, internal communication has generally increased during the pandemic. According to the Loeb Leadership study, respondents largely felt supported by leadership (61 percent) and informed about what was going on within their firm (82 percent). Of those who did not believe the firm was keeping them well informed, the majority (61 percent) were partners. These results appear to be backed up by the MLA/AL associate poll, where the majority of respondents (77 percent) said that the communication within their firm had increased despite WFH being in effect.

While there has been an overall increase in videoconferencing and other technologies, only 42 percent of associates reported that partners were requiring recurring video check-ins, with email (64 percent) being by far the most preferred overall firmwide communication method (followed by phone and only then video chat) (Figure 18). Notwithstanding email serving as the primary mode of communication, more than 50 percent of associates reported that they felt sufficiently connected with the partners with whom they work (roughly another quarter said they felt “somewhat” sufficiently connected). Just about 10 percent felt no measure of connection. These numbers are virtually identical for associate-to-associate communication and connection.

Graphic from Major, Lindsey & Africa and Above the Law shows associate responses to the question, "What currently are the preferred methods of communication with others outside your firm (i.e., clients, courts, opposing counsel)? Rank in order of importance." Roughly three-quarters (74.41 percent) ranked email as most preferred.

Figure 18. Source: MLA/AL

A similar story can be told in-house, where ACC data shows that in-house teams generally approved of departmental and companywide communication during the crisis, with 82 percent believing communication was “about the right amount.” Just 13 percent believed it was “not enough.” As with broader leadership numbers (see above), this supports a general sense that leadership has done well during the first phase of the crisis.

Well-being. As we have covered in The Practice, the legal industry had increasingly focused on issues of workplace wellness even prior to the pandemic. This focus has now become even more urgent—as well as difficult—particularly as the personal and the professional collide in often unexpected ways. Initial reports are largely positive with respect to law firm responses during the pandemic. According to the Loeb Leadership study, more than 75 percent of respondents—themselves a cross section of roles within firms, including partners, associates, and staff—were comfortable speaking to their manager about the stress of the crisis and how it might impact performance. A slightly smaller percentage (60 percent) reported that the firm was providing support to help manage that stress. Respondents also generally agreed that firms were continuing training and development, despite being remote (73 percent). Somewhat surprisingly, nearly three-quarters reported that they either strongly agreed or agreed that they have enough social interaction with colleagues even under WFH arrangements. A second Loeb Leadership study from April 2020 focusing specifically on WFH outlined some of the major challenges law firm personnel were facing, including general anxiety (28 percent) and social isolation (20 percent). Figure 19 illustrates these major challenges, excluding general anxiety, by age group. As becomes readily apparent, different age groups experience distinct challenges—for example, those 35–44 note that childcare is their biggest concern whereas those 65 and older tend to be more concerned with overall team dynamics— making it necessary for firms to consider multifaceted approaches.

Graphic derived from a Loeb Leadership survey shows top concerns of different age groups working from home. While those 35–44 note that childcare is their biggest concern, those 65 and older tend to be more concerned with keeping their team engaged.

Figure 19. Source: Loeb Leadership

When focusing on associates specifically, according to the MLA/AL survey, law firms provided a number of resources to their employees. As Figure 20 shows, among the most common reported wellness resources available were resource groups (73 percent), virtual mental health counseling (43 percent), meditation subscriptions (31 percent), and virtual fitness subscriptions (24 percent). Notably, just 6 percent reported a decreased billable-hour target. That being said, associates largely seemed satisfied with the offerings (58 percent). The most commonly requested services, according to the MLA/AL report, were decreased billable requirements, virtual fitness, and mental health support.

Graphic from Major, Lindsey & Africa and Above the Law asks, "Has your firm added any of the following wellness resources post COVID-19? (select all that apply)" A majority (73 percent) report the addition of "employee resource groups," whil significant numbers also report the addition of "virtual mental health counseling" (43 percent), "meditation subscription" (31 percent), and "virtual fitness subscription" (24 percent).

Figure 20. Source: MLA/AL

Firms are getting creative in their responses to wellness issues. For instance, anecdotally at least one firm instituted “Zoom time limits” for their summer associates. Reed Smith recently launched the Family Support Initiative to help lawyers and staff address family challenges as the new school year begins. According to the firm, “The Initiative includes innovative mental wellness programming, such as Unstuck, a six-week self-care series designed to help parents handle many of the issues associated with home-based work and their children’s uncertain educational future.”

The data tells a largely positive story as firms and companies learned, in real time, how to function remotely.

According to ACC data, in-house lawyers are firmly split on whether they feel that they can “switch off” from work during WFH conditions—51 percent felt that, on some level, they could, with 49 percent reporting that they had difficulty doing so. Among those surveyed, levels of burnout presented as bell-shaped—just under half of respondents (44 percent) reported moderate levels of burnout, with 30 percent reporting high or very high, and 26 percent low or very low (Figure 21). Overall, 83 percent of respondents rated their emotional state as good, though nearly half of those reported it in the middle “somewhat good” category of the six-point Likert scale.

A prompt from an Association of Corporate Counsel survey asks respondents, "How would you rate your current level of burnout?" A plurality (44 percent) reported "moderate," the neutral response, with comparable portions of the remaining responses falling on either side.

Figure 21. Source: ACC

A prompt from an Association of Corporate Counsel survey asks respondents, "How would you rate your overall emotional state during the COVID-19 pandemic?" The vast majority (83 percent) reported somewhat good, very good, or extremely good.

Figure 22. Source: ACC

Put together, like the rest of the world, law firms and in-house legal departments spent much of the spring and summer of 2020 reacting to the incredible uncertainty surrounding COVID-19. This included everything from figuring out how to WFH and learn new technologies to ensuring that the necessary, no-less-significant legal work got done to the highest quality. The data herein tells a largely positive story as firms and companies learned in real time how to function remotely. Going forward, particularly as economies open up, the critical question will be how these data points change—and what law firms and in-house legal departments come up with for their long-term strategies.

COVID-19 and legal education

As with the legal industry more generally, legal education was also drastically impacted by COVID-19. While the spring 2020 semester began in person—a fact that, up until then, was so banal that it was hardly worth mentioning—it ended online for all ABA-approved law students around the United States, as well as many around the world. The shift was, simply put, abrupt. Students, faculty, and staff often transitioned online in as few as two weeks, resulting in a number of major policy changes such as temporary shifts to pass/fail grading systems. Clinics were also faced with major challenges of how to transition their services online (see “Not Remotely the Same”).

Method

If the remote-learning experiment of spring 2020 occurred suddenly and expectedly, fall 2020 allowed for more careful consideration of the strategic options available to law schools. According to data collected by the Center from 36 law schools across the United States, including the U.S. News & World Report’s top 30, 31 percent of law schools reported being fully remote for fall 2020, while 67 percent are engaging in hybrid approaches, the details of which vary. With respect to the online and hybrid mode, classes are either synchronous, asynchronous, or a mixture. According to Center data, only around 5 percent of law schools reported being fully in-person. Indeed, reflective of the ongoing nature of this virus, schools such as the University of North Carolina–Chapel Hill have changed course midstream, starting in person but quickly transitioning to online due to COVID-19 outbreaks. Some law schools that began the semester under a hybrid model have already had to shift to remote learning due to local outbreaks, such as the University of Wyoming College of Law. In the context of this virus, the American Bar Association authorized expanding online course offerings.

In the spring, students, faculty, and staff transitioned online in as few as two weeks.

It is worth stressing that although the fall 2020 semester has just begun, there have been lessons from the spring 2020 online experience about what works and what does not in an online learning space. There is evidence that law schools have invested on both the technological side, including grant programs to students and faculty for equipment, and the pedagogical side. For instance, in just the past few months numerous academic papers have been published on how to teach law online (see here and here). Some of these efforts have focused on the mundane—Zoom lighting!—but have extended to serious topics including how to create classroom norms (see “Social justice and legal education” below). In this context, law school clinical programs, which offer some of the most hands-on learning within law school, face particular challenges in an online environment. On the one hand, because many administrative agencies and other legal settings remain largely remote, most of the work was necessarily translated online. Moreover, many clinics are continuing their classroom learning and advocacy work, including brief writing, policy advice, and general legal advice, on a remote basis. Indeed, given the challenges associated with COVID-19, clinics are often finding even more need for their services, albeit on a remote basis. On the other hand, it remains an open question how students in an otherwise remote leaning environment will be able to interact with clients as courts reopen.

Matriculation

Given the transition to online learning for many schools, questions have surrounded anticipated enrollment for admitted students. According to a recent Law School Admission Counsel (LSAC) survey, the vast majority of J.D. respondents (83 percent) indicated that they definitely (71 percent) or probably (12 percent) will matriculate to law school in fall 2020. Just 12 percent indicated they would not or probably would not, and just 5 percent were undecided. Given the complexity around visa regulations, LLM respondents displayed a starkly different attitude toward the fall 2020 semester with less than half (40 percent) indicating that they would definitely or probably matriculate, and a slight majority (54 percent) indicating they would definitely not or probably not. Again, very few were undecided. There are early indications of high J.D. enrollment, notwithstanding the crisis; however, full data is likely to be available only in the coming months.

Interestingly, according to the LSAC study, a school’s decision whether to be online-only or not did not appear to be particularly impactful for J.D. students’ decision to matriculate. According to the survey, slightly more than two-thirds (68 percent) of J.D. respondents indicated that a school’s decision to have online-only instruction during fall 2020 would not impact their overall enrollment decision, with just 7 percent indicating that they would defer in order to take in-person classes. While numbers are just starting to come in, the deans of UCLA School of Law and Brigham Young University Law School reported that this year’s deferral rate is roughly the same as the year before. This is broadly supported by data released in September 2020 by the National Student Clearinghouse Research Center, which found that while COVID-19 produced a -2.5 percent drop in undergraduate enrollment, there has been a 3.9 percent uptick in graduate enrollment. It should be stressed, however, that international students have been hit. As with overall matriculation decisions, the script was flipped for LLM students according to LSAC data: only 35 percent indicated that an online-only fall 2020 would not cause them to defer admission and another 35 percent indicated that it would not affect matriculation decisions. This is significant as international students are a significant revenue source for law schools, many of which are facing significant financial shortfalls given campus closures and associate fiscal stresses.

Given the transition to online learning for many schools, questions have surrounded anticipated enrollment for admitted students.

While most respondents planned to matriculate irrespective of a school’s stated plan, those who stressed the importance of in-person classes frequently cited things like quality of education, networking opportunities, and operational factors (such as time zones) as key reasons for their concern. The LSAC report cited some particularly salient comments:

As one J.D. candidate explained, “I am dreading the possibility of online classes. I would rather take my chances and get sick then [sic] not get a chance at a quality education, and online lacks quality.” Another J.D. candidate pointed to the nonreplicable nature of the 1L in-person experience, saying, “I have been told by a few current lawyers that being on campus and in person for classes is essential for 1L students since it is the time to get to know peers and professors very well. It does not seem as easy to do so via online.” International respondents who stated their desire for in-person classes (many of whom are LLM candidates) were concerned about the fact that online classes would not meet visa requirements.

Candidates who supported online classes were often most concerned with overall health and well-being, both their own and that of their communities. Again, the report cited respondent comments:

As one international J.D. candidate explained, “Honestly I prefer remote education. I do not feel safe in the midst of COVID-19 and the health insurance system of the US is not as decent as the one in my home country. I feel much safer here. If I were a recent college graduate, I would have deferred. Every university in my home country is doing remote education even if COVID-19 is being handled much better than the US. I do not quite understand why many American schools are pressing for on-campus education when the safety of the students is at risk. I do not think they are being responsible. They do not seem to put the safety of the students as top priority even if they say so.” Another J.D. candidate cited the health risks, stating, “I am high risk for COVID-19, but I do not want my education to be delayed. I want to attended [sic] law school this fall, and I would love online options—delayed start would be second choice for everyone’s wellbeing—or the option of delayed starts but some optional class [sic] offered in the fall for student [sic] who want to use the time.”

Even in the context of all this uncertainty, the study still found instances of inspiration in the resilience of these future lawyers. Two quotes are particularly reflective of this spirit:

“I come from a very female oppressed family. I am the only female ever on both sides of the family to have a bachelor’s. I also have a severe history of sexual assault and law school for me gives me the opportunity to not only advocate for justice, but to pave a way for others who are in a similar position that I was in to get an education.” (J.D. candidate)

“I wish to attend law school in order to serve my country as a more effective Human Rights Defender. My country’s Human Rights record is not good at all hence it needs forceful Human Rights Defenders who can work hard to cultivate a culture of promoting, protecting and respecting Human Rights and Freedoms.” (LLM candidate)

Summer associate programs and recruitment

According to May 2020 NALP data, 86 percent of respondent firms reported that they were still hosting summer associate programs. Just over half (55 percent) were hosting fully virtual programs, 40 percent hybrid, and just 5 percent in person. Two-thirds of the programs were five to six weeks in length, substantially down from the 10-week programs that more than 70 percent of firms reported hosting in 2019. Moreover, according to June NALP data, two-thirds of those with shorted programs prorated salaries based on those new lengths. Of those programs that were canceled, most firms (84 percent) were offering some sort of financial compensation to students. According to the American Lawyer’s 2020 summer associate survey, nearly half (48.4 percent) of respondents noted job security was a top concern (in 2019 work-life balance was the most popular answer, while just 34.5 percent indicated job security).

Nevertheless, this year’s survey did reveal ongoing concerns about work-life issues. Around 48 percent of respondents said they were concerned about their mental health (up from 39 percent in 2019). At the same time, 71 percent of respondents said mental health seemed like a priority at their firms, up from 63 percent in 2019. Notwithstanding these changes, anecdotal reports suggest that the programs were successful under the circumstances—as one Am Law 50 summer associate wrote in the American Lawyer survey, “All things considered, I think that they pulled off the virtual summer very well.”

In addition to changes in summer programs, there have been major alterations to the law firm recruitment cycle. Typically, recruitment events take place in the late summer prior, such as August 2020. According to May NALP data, 85 percent of respondent law schools changed their recruitment dates this year, with just over 50 having announced a recruiting date (either new or unchanged). Of those that announced a change, more than 70 percent indicated it would be in January 2021. It remains to be seen what hiring looks like for 2021.

Bar exam

One of the most oft-cited issues arising in the context of the COVID-19 crisis has been impacts to state bar exams, particularly as it relates to the ability to host these massive events amid varying state regulations. It has not been easy. To take one example, on May 5, 2020, the Florida Board of Bar Examiners (FBBE) announced the July 28 exam would be split between two locations given space constraints. On July 1, the FBBE changed the exam entirely to an online test to take place on August 18. (The test, it was noted, would not include the multistate bar portion.) Just three days before that test was set to be held, it was postponed again to October. Given the volatile nature of the issue, once could imagine six interrelated factors at play.

This map of the United States from NCBE shows range of how states are handling bar exams and related issues such as diploma privileges. There is a lot of variation, but diploma privileges are notably rare.

Figure 23. Source: NCBE

Timing. While some states went ahead with the “traditional” July bar exam, which included both the Uniform Bar Examination (UBE) as well as jurisdiction-specific components, many have postponed the exam further into fall 2020.

Medium. Given the delays and the disruptions caused by COVID-19, as the map above indicates, this has most often meant movement to an online medium of exam administration.

Content. Given COVID-19’s challenges, most states have chosen to adapt their bar requirements, such as offering either only jurisdiction-specific components or an adapted UBE. With respect to the UBE, the NCBE has stated that their remote option, while containing similar content to the in-person UBE, “will not constitute the full bar exam or the UBE. Scores earned on the remotely administered test will be used for local admission decisions only, and will not qualify as UBE scores. The scores will not be eligible to be transferred as UBE or MBE scores to other jurisdictions or released to candidates via NCBE Score Services.” In other words, the remote UBE is not a portable exam score.

Reciprocity. Given that many states are offering a remote UBE, they are also having to enter into specific reciprocity agreements. For instance, Massachusetts has entered into reciprocity agreements with Connecticut, the District of Columbia, Illinois, Kentucky, Maryland, New Hampshire, New Jersey, New York, Ohio, Oregon, Tennessee, and Vermont for the portability of scores earned on the remote exam. Other states have pursued similar strategies.

Diploma privileges. Given the uncertainties associated with COVID-19, there has been substantial debate around allowing recent law graduates “diploma privileges” or allowing them to practice law without having sat for the bar exam. To date, only four states have adopted emergency diploma privileges amid the pandemic: Utah, Washington, Oregon, and Louisiana. According to the NCBE, as of August 2020, 17 states have firmly denied petitions or requests for emergency diploma privileges during the COVID-19 crisis. Finally, some states, such as Florida, have created temporary supervised practice programs under which law graduates who were registered to take the July exam may practice law under supervision on a temporary basis. A critical question going forward, particularly in those states in which diploma privileges are an option, is the extent to which the bar exam remains a useful and/or accurate examination regarding a law graduate’s readiness to practice law—to the extent that it ever has been. Indeed, as we have documented previously in The Practice, similar critiques about the efficacy of character and fitness exams have been leveled.

As with the corporate legal market, legal education has moved out of a reactionary phase and into a new normal. Fall 2020 is providing a real-world experiment as to what works and what does not in the field of remote legal education—and hard data will be critical in determining the best way forward.

Social justice and the corporate legal profession

The legal profession is often at the center of the discussion when it comes to issues of social justice, particularly as they relate to questions of race, civil rights, and the criminal justice system. In the following two sections, we examine some diversity-related metrics in legal profession in the lead up to George Floyd’s death in May 2020 as well as outline some of the immediate reactions taken in the aftermath. It should be noted that, unlike with COVID-19, there has been comparatively less systematic data collected on the actions taken by the corporate legal profession around social justice—and even less on their demonstrated impacts. As such, perhaps the clearest takeaway for now is that more data is needed to assess these responses, particularly regarding how initial actions translate into long-term change.

With the onset of the COVID-19 crisis, there was real concern that its impacts would derail what had been gathering momentum around the importance of diversity in the legal profession.

On one level, the law itself is a critical player in debates over criminal justice reform, civil rights, and other core issues of social justice. On another level, the law—whatever its tenets—is often translated through the actions of lawyers. Judges, after all, are lawyers. Prosecutors and district attorneys are lawyers. Defendants have lawyers. Lawyers, as we have covered previously in The Practice, even have a disproportion influence in policymaking (see “Lawyers in Politics”). One need only look to the civil rights movements of the 1950s and 1960s when a group of Black lawyers led by Charles Hamilton Houston, Thurgood Marshall, and William Hastie established a definitive link between the practice of law and social justice movements. Many social justice movements have since patterned their efforts on the roles of those lawyers.

At the same time, it should be noted that the profession itself has a diversity problem, whether in terms of race and ethnicity, gender, the intersection between the two—the list could go on. Demographic data from 2019 shows a profession that is 85 percent white (76.6 percent of all U.S. residents are white in 2019) and just 5 percent Black, 5 percent Hispanic, 2 percent Asian, and 1 percent Native American. Looking at U.S. law firms specifically, according to the National Association for Law Placement (NALP), just 17 percent of law firm lawyers are people of color and only 9 percent women of color. Indeed, in 2019, 20 of the Am Law 100 firms had only one Black equity partner. In the courts, according to the Center for American Progress, people of color make up only 20 percent of federal judges, and women only 27 percent. Similar diversity issues are also reflected throughout the criminal justice system, including low percentages of minority district attorneys.

With the onset of the COVID-19 crisis, there was real concern that its impacts would derail what had been gathering momentum around the importance of diversity in the legal profession, whether under economic/business rationales or due to changes in workplace culture given WFH scenarios. After all, in many ways, 2019 was a banner year. First, in January 2019, 170 general councils penned a letter promising that “as a group, we will direct our substantial outside counsel spend to those law firms that manifest results with respect to diversity and inclusion.” Second, in February 2019 an even larger group of general counsel—upward of 250—signed a statement that said they were going to create a mentoring program “to build relationships between rising diverse law firm associates and chief legal officers and other senior in house lawyers.” Then, in September 2019 the Diversity Lab launched the Move the Needle Fund in which five companies and five law firms committed to put up $5 million to “test innovative initiatives to create a more diverse and inclusion workplace.”

Perhaps the clearest takeaway for now is that more data is needed to assess these social justice responses.

Many in the profession worried that some of this momentum might be lost as the full extent of the damage of COVID-19 revealed itself, particularly given the context of what has occurred in previous economic downturns. Then George Floyd’s murder completely altered the landscape, galvanizing a cascade of world-shaking protests around questions of racial justice and policing issues.

The legal profession’s response to the more recent protests and calls for racial justice has varied in some ways—and has distinctly not varied in others. NALP data collected in July/August 2020 across 240 law firms shows that virtually all respondent firms (99 percent) reported implementing at least one new antiracism and/or diversity, equity, and inclusion (DEI) efforts and initiatives since Floyd’s killing. Sixty-four percent of respondent firms noted that they had designed Juneteenth as a paid holiday in 2020 (however, only 16 percent of those firms have made it permanent beyond 2020); 76 percent issued a formal policy statement related to racial justice (for more on the specific statements, see here); 69 percent increased racial-justice-related pro bono commitments; 3 percent created new law student diversity scholarships (separate from fellowships); and 55 percent reported diversity fellowships prior to June 1, 2020 (though only 5 percent increased funding). Training has been one focus area for firms—57 percent reported requiring mandatory antibias training for lawyers and/or staff, and 63 percent are either increasing or instituting new programming around antiracism and/or DEI. Despite the large amount of social activism during summer 2020, only 57 percent of firms indicated that they had planned new antiracism and/or DEI training for 2020 summer associates (Figure 24).

This table from the National Association for Law Placement shows responses to the question," What types of anti-racism and/or diversity, equity, and inclusion (DEI) efforts or initiatives has your office implemented in response to the events of the last two months, beginning with the murder of George Floyd? (Select all that apply.)" Across all offices surveyed, majorities had "issued a policy statement related to racial justice" (76 percent), "increased pro bono commitments related to racial justice" (69 percent), "implemented new or increased existing antiracism or DEI training provided to lawyers and/or staff" (63 percent), "made donations to racial justice related organizations" (59 percent), and "developed new partnerships with clients or external organizations related to racial justice and/or DEI" (51.5 percent).

Figure 24. The specific question posed to respondents was: “What types of anti-racism and/or diversity, equity, and inclusion (DEI) efforts or initiatives has your office implemented in response to the events of the last two months, beginning with the murder of George Floyd? (Select all that apply.)” Source: NALP

As with the business community more generally, there are countless examples of what these efforts look like in practice. Pillsbury Winthrop Shaw Pittman, for one, pledged $1 million in cash and $10 million in pro bono work for social and racial justice causes. Dorsey & Whitney ended its pro bono and training collaboration with local district attorney offices. And, in June 2020 more than 125 firms signed on to form the Law Firm Antiracism Alliance, in partnership with the Shriver Center on Poverty Law’s Racial Justice Institute, whose stated purpose is to “to leverage the resources of the private bar in partnership with legal services organizations to amplify the voices of communities and individuals oppressed by racism, to better use the law as a vehicle for change that benefits communities of color and to promote racial equity in the law.” Similarly, new cause organizations have tapped into the immense labor, knowledge, and financial resources of law firms, including the ACLU of Louisiana’s newly launched Justice Lab (see “Rallying Around Racial Justice”). Of course, it remains to be seen what the actual impacts of these various efforts will be.

These most recent efforts have linked up with broader efforts to increase diversity and inclusion in the profession more generally, which has resulted in a plethora of new program initiatives. As noted previously, this includes the Move the Needle Fund as well as increased internal resources to hire chief diversity and inclusion officers. The role of clients has also been key to this debate, as both law firms and general counsel are increasingly seen as key players in business who bear wider responsibilities to society. In the first case, clients have been at the forefront of pushing their law firms to increase their diversity and inclusion numbers, as demonstrated by the various calls to action described above. In the second case, as noted at the outset, companies themselves are increasingly making social justice and other corporate social responsibility matters central to their businesses and, in doing so, placing the general counsel as the point person in these programs.

Put together, the corporate legal sphere has seen some action in light of the social justice movements of 2020. The profession also had existing momentum in efforts to increase diversity and inclusion in the law. The question is, will the profession rise to the challenge? Indeed, there is no guarantee, and history shows that we have been down this road before. Nevertheless, the forces pushing for change are urgent and, given the fragilities and interdependencies highlight by COVID-19, law firms and companies who recognize the new reality will have the best chance of attracting the best clients and talent.

Social justice and legal education

Like the legal industry more generally, law schools have long been a locus for social justice debates, whether through clinical work, intellectual and curricula movements such as critical race theory and critical legal studies, or the very composition of the student body and faculty. The situation today is no different.

To begin, who goes to law school is a critical question in debates about the legal profession’s long-term response to social justice initiatives. On the one hand, data shows that law school enrollment has been and remains predominantly white—according to 2019 ABA data, 62 percent of enrolled J.D. students identified as white. While this number was down from 66 percent in 2011, it still represents nearly two-thirds of all J.D. students. Black enrollment in 2019 stood at 7.8 percent (up from 7.2 percent in 2011), Asian at 7.3 percent (up from 6.3 percent), and Hispanic at 12.7 percent (up from 9.2). When gender is added in, across all races/ethnicities, women outnumber men, with Black women outnumbering Black men to the greatest degree.

On the other hand, while there has been modest progress on race and ethnicity within law schools, it is important to note—as Miranda Li, Phillip Yao, and Goodwin Liu do in a recent piece titled “Who’s Going to Law School? Trends in Enrollment Since the Great Recession”—that much of these gains have occurred at lower-tiered schools. Figure 25 shows the relative enrollment by race/ethnicity and tier in 2019, illustrating that minorities tend to make up the highest percentage of students at the lower tiers. So while there have been some gains among Black and Hispanic law students, to a significant extent these have occurred at lower-tiered schools that are often correlated to both higher debt and poorer job prospects post–law school. Li et al. write in their conclusion:

[A]s law school enrollment has declined over the past decade, its racial and ethnic diversity has changed. Since the Great Recession, Asian and White enrollments have decreased significantly, Black enrollment has declined modestly, and Hispanic enrollment has increased. At first glance, the rising percentages of Black students and Hispanic students in the law school population may appear to be a salutary trend. But it is a sobering fact that Black students and Hispanic students are disproportionately enrolled in lower-ranked schools. As with women, further analysis is needed to determine how many Black or Hispanic students go on to graduate, pass the bar, and practice law. Given the substantial indebtedness and opportunity costs that students incur by attending law school, the changing racial and ethnic makeup of recent enrollments should be interpreted cautiously.

A graphic presented by Miranda Li, Phillip Yao, and Goodwin Liu using ABA data shows the largest relative percentages of Black and Hispanic law students by far were in Tier 6 (out of a total of six) law schools.

Figure 25. Source: Miranda Li, Phillip Yao, and Goodwin Liu

There is also the composition of the faculty to consider. According to 2018 ABA statistics, eight out of 10 full-time, tenure-track law professors are white, and 55 percent are men. When the ABA last published data on the intersection of race and gender in 2013, only 7 percent of full-time faculty were women of color. As some have argued, the percentage of minority clinical faculty members is reflective of both the progress made and the work still to be done. Clinical law faculty are reflective of the comparative lack of diversity. According to Clinical Legal Education Association (CLEA) data, the overall number of clinical faculty members of color has increased from around 9 percent in 1981 to more than 20 percent in 2017 (Figure 26). Notwithstanding these increases, however, this number remains far lower than the percentage of law graduates of color (around 40 percent) and of the U.S. population as a whole (around 40 percent). (With respect to gender, women clinical faculty now outpace men around 62 percent to 38 percent.) Moreover, as the CLEA’s Committee for Faculty Equity and Inclusion writes in a recent paper, “The overall numbers also mask important differences in subcategories of people of color.” They explain:

The percentage of Black clinical faculty rose from 4 percent to 7 percent between 1981 and 1999, but then dropped to 5 percent before rising slightly to 7 percent again in 2017. … The percentage of Latinx clinical faculty members decreased from 5 percent to 2 percent from 1981 to 2008, then rose from 2008 to 2017 back to 5 percent. … The percentage of Asian-American clinical faculty members (all subcategories included) increased from 2 percent to 6 percent between 1999 and 2017, reflecting more progress towards inclusion than other groups, although Asian-American faculty only make up 3.3 percent of tenured faculty, and the lack of further disaggregation between Asian-American subgroups may hide important inequities, particularly with regard to Southeast Asian faculty members. … Indigenous peoples (including American Indian and Alaskan Native) did not constitute 1 percent in any survey year, despite constituting 1.7 percent of the U.S. population.

In light of the recent social justice movements, many law schools have committed to increasing faculty diversity, both at the clinical and traditional levels (where comprehensive data is particularly hard to come by). For instance, a number of universities have created formal new roles specifically geared toward increasing diversity at the faculty level. In August 2020, the University of Miami, for instance, appointed a new associate provost for diversity, equity, and inclusion with the Office of Faculty Affairs, with the inaugural holder of the office herself being a law professor. It remains to be seen how much impact these institutional elaborations will have. Law schools have also made commitments to recruit diverse faculty in terms of intellectual interest. For instance, Harvard Law School has committed to hiring a professor to teach and write in critical race theory as well as someone who can serve as the inaugural Charles J. Ogletree, Jr., Professor of Law when the chair becomes available next summer.

While there has been modest progress on race and ethnicity within law schools, it is important to note that much of these gains have occurred at lower-tiered schools.

Law school faculty are also advancing curricular changes focused on race. For instance, faculty are calling for both new courses focusing specifically on race and the law as well as the resources necessary to ensure that faculty have the necessary time to engage in the learning (and unlearning) needed to incorporate curricular frameworks into their courses. Deans are also publicly defending the importance of critical race theory, which has recently come under criticism. The deans of the University of California’s five law schools recently wrote a defense:

We write with one voice to defend Critical Race Theory and to speak against the attacks upon it by the President of the United States and the Office of Management and Budget. The faculties of the UC law schools include many of the leading scholars in Critical Race Theory (CRT) and our law schools engage in a good deal of important scholarship, teaching and policy work about how race and racial oppression shape law and society. …

We also see, every day, the ways our students benefit from the learning and the teaching of Critical Race Theory as part of their education. Many of our students who go on to public service, or who dedicate themselves deeply to pro bono work, or who work in profound ways to make the world and the legal system more truly equal, do so having been deeply inspired by the critical race scholars from whom they have had the opportunity to learn at our law schools.

Apart from these faculty dynamics, law schools have launched a number of new initiatives in light of racial justice movements. On a broad level, based on data from a NALP survey of 89 law schools conducted from July 23 to August 6, 2020, 90 percent of schools reported implementing new antiracism and/or diversity, equity, and inclusion (DEI) trainings. Most law schools (97 percent) have at least one DEI staff member or governance group, and 58 percent have a formal complaint procedure if students experience bias or discrimination during the early action hiring process.

This graphic from the National Association for Law Placement shows that, on the issue of training, almost half (49 percent) of schools report "increasing the amount of antiracism and/or DEI training for faculty and staff," slightly fewer (39 percent) report "increasing the amount of anti-racism and/ or DEI training for students," and nearly half (48 percent) "require mandatory anti-bias training for faculty, staff, or students."

Figure 26. Source: NALP

Law schools are also carving out new roles for students looking to engage with racial justice issues. In July 2020, 12 law schools formed the Florida Law Schools’ Consortium for Racial Justice, with each school committing to at least one student fellow a year to purse antiracist initiatives. Similarly, in 2020 Harvard Law School announced the launch of a new Program on Mass Incarceration, which will work with an in-house clinic, the Impact Defense Initiative, and use litigation, research, and advocacy to address issues of incarceration and its disproportionate impact on communities of color. Similarly, Stanford Law launched a new Center for Racial Justice. Moreover, Harvard Law faculty plan to launch a Journal on Law and Equality, which will give faculty and students “opportunities to work on questions addressing the way law furthers or undermines the ideal of equality, focusing on topics such as the criminal justice system; the effects of machine learning; the use of algorithms; racial profiling; reparations; sexual harassment; the meaning of the equal protection clause; occupational licensing; the minimum wage; the potentially regressive effect of regulation; and the tax system and the constitutionality of the wealth tax.”

Law schools, along with educational institutions more generally, are also experimenting with new ways of creating classroom equity. The Harvard Kennedy School, for example, in collaboration with alumni, developed an app dubbed Teachly, which collects data on how often students participate in class, including how often they are called on, in an attempt to encourage wider classroom participation. The application, which also allows students and faculty to get to know one another and their interests, is being piloted in law school classes.

Time will tell whether these efforts succeed, and tracking the data will be critical to both assessing those successes and/or failures as well as ensuring that commitments are met.

Where are we going?

As we note at the outset, the data presented in this article is meant to capture some of the most critical ways in which the profession has weathered the last six months. These data points from across the profession and beyond are worth understanding in and of themselves to help contextualize a turbulent (and still unfinished) 2020. While there were no doubt missteps, many of these findings tell a relatively positive story of a profession responding to unpreceded challenges and change. At the same time, the data is necessarily preliminary and offers only a snapshot in time. Between the spread of COVID-19 and renewed calls for racial justice, whatever trends and expectations held true at the end of 2019 have inevitably been upended in one way or another. Given the complexities of the moment, it is all the more necessary to continue to capture as much data and information as possible to learn what works and what doesn’t in the new normal as well as what should and what shouldn’t change going forward. We hope the data we (and so many others) have collected here is illustrative in how the profession might approach its analysis of these complicated issues in the months and years ahead. Above all, the data contained in this article reflects the critical role that lawyers will play in the future, whether helping businesses, small and large, navigate uncertain waters; ensuring that the rights of every person are protected; or redesigning institutions, such as law schools or the workplace, in whatever world emerges from 2020.

1 2 3 4 5 6 7 8 9 10 Single Page

The Year So Far Volume 6 • Issue 6 • September/October 2020

Cover