The legal profession must not let COVID-19 weaken our commitment to diversity

I recently had the pleasure of contributing an article for The American Bar Association’s Litigation Journal titled, “Why Diversity Matters in the Selection and Engagement of Outside Counsel.” As I shared in the article, diversity in the legal profession is critically important—it is valuable in its own right, it is good for business, and it is vital to the integrity of the judicial system itself. However, despite the clear benefits, the effort to diversify the communities represented in the profession has been slow and lags behind many other industries. Over the last decade, the representation of women in the profession has increased five percentage points, from 31 percent to 36 percent, which at first glance may seem like good progress. However, at that rate, it will take more than a quarter-century to reach gender parity. And, unfortunately, the road likely will be longer for other groups. During the same ten-year period, there has been little progress on minority representation, and we continue to see significant under-representation for LGBTQ+ attorneys and attorneys with disabilities. No one sector of the legal industry is solely responsible for the lack of progress, and it is clear that it will take all of us, across all sectors, to make positive change. We need more companies, law firms, and other organizations to continue to focus on diversity in their own organizations, to create new, innovative programs, and to share those innovations with others in the profession.

When I submitted the article, it was the end of 2019, and the world looked very different. The first U.S. case of COVID-19 had not yet been diagnosed. We were not yet sheltering in place. Many of us had never heard the phrase “social distancing.” The U.S. unemployment rate was at a near-historic low of 3.5 percent. That feels like a lifetime ago. As we fast forward to today, much has changed. Many of us have been sheltering in place and working remotely for weeks or months. Social distancing is a core practice in many of our lives. We’ve seen the devastating effects of COVID-19 around the world. As of this week, more than 90,000 lives have been lost in the U.S. and more than 316,000 lives have been lost globally. Many, many more have suffered serious illness and hospitalization. The economic impact has also been severe. In the U.S., more than 36 million people have filed for unemployment, and the unemployment rate in April increased to 14.7 percent. Early data is showing that minorities in the U.S. are bearing a disproportionate amount of these health-related and economic effects.

Although the article was written before COVID-19, the key points—that diversity is critically important to the legal profession, that we need to make more progress, and that corporate legal departments and law firms need to work together to advance diversity—all still hold true. Indeed, they are more important than ever, but they may be at risk in the current economic environment. As we saw during the 2008-2009 recession, the difficult personnel decisions made during economic downturns can have an adverse effect on diversity. According to data collected by the National Association for Law Placement, coming out of the last recession diverse representation decreased for both women and minorities in law firms. After a full decade of steady increases from 2000 to 2009, female representation dropped in 2010. Although the decrease was small in absolute numbers, it took five years for female representation at law firms overall to return to 2009 levels, and it took nine years for female associate representation to return. Minority representation faced a similar decline but was able to rebound more quickly.

Like many other business sectors, the legal profession hasn’t been immune from the current economic effects of COVID-19. In response to the current environment, many corporate legal departments and law firms are pausing hiring; canceling or reducing traditional summer internship programs; reducing pay for employees; and furloughing or laying off some workers.

As organizations are making these challenging decisions, we must not allow history to repeat. Diversity is not a “nice to have” that can be deprioritized or abandoned in challenging economic times. Our profession and legal services organizations cannot be at our best without protecting and increasing our diversity. Studies have repeatedly shown that building and supporting a diverse workforce produces higher revenues and leads to better financial results, and that diverse teams are more creative, innovative, and effective. We must not lose focus.

In the coming months, we must work together as an industry to preserve current levels of diversity in the profession and then quickly focus on making further progress. The need for law firms and legal departments to slow hiring or downsize does not need to result in a step backwards for diversity. We each must start by focusing on diversity within our own organizations, ensuring that layoffs and other organizational decisions do not have a disproportionate impact on diverse attorneys. One way is to leverage the American Bar Association's Modern Diversity Survey as a tool to better understand data about our own organizations and the industry more broadly. It also is important that we continue to invest in diversity programs and initiatives as well as share innovations and best practices across the industry. At Microsoft, we are working hard to ensure that decisions in our own legal department don’t unintentionally create adverse impacts on diversity, and we are continuing to work with our strategic partner firms to increase diversity through our Law Firm Diversity Program. By maintaining focus in these difficult times, our industry will be in much better position to advance diversity in the coming months and years. We cannot afford to slide backwards.

You can read the full article, “Why Diversity Matters in the Selection and Engagement of Outside Counsel” free of charge, thanks to the generosity of the ABA.