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Real diversity = providing the opportunity to lead

Bijal V. Vakil, founding partner of Allen & Overy's Silicon Valley and San Francisco offices, explains how rising numbers of minority partners at leading law firms are masking a more significant challenge for the whole industry.

With Asian Pacific American Heritage Month (May) now over, we can celebrate some limited success. On one level, the latest statistics on law firm diversity paint a positive picture. According to a recent study by the National Association for Law Placement, more than 28% of associates at U.S. firms are now people of color, and almost half (49.4%) are women, up from 2.14% and 10.84%, respectively in 1991.

But our work is far from done. Dig deeper into the numbers, and it's apparent how much further we have to travel. People of color and women currently comprise just 11.4% and 26.7% of law firm partners. The proportion of Black and Latinx partners in the United States is a failure—growing just 0.1 % last year. Firms also face a challenge to retain minority talent— statistics from the American Bar Association show the attrition rate among lawyers from minority racial groups is up to three times higher than among white lawyers. My firm can do better with all of this too.

Our intentionality on DE&I efforts isn't powerful enough. It takes more. There have been decades of sustained effort and investment to improve diversity, equity, and inclusion across the legal industry. No serious firm is now without a DE&I team, and great work is being done to build a pipeline of diverse candidates from law schools. Diversity will feed through into partnership numbers in time, even if the speed at which this happens needs to accelerate. Despite this, there is an important area where I believe we are failing in our mission to create a truly diverse profession. Real progress will only be made when we move the dial on the "E" of DE&I. We are still far from having equity between lawyers, and this needs to be our focus over the next decade and beyond.

McKinsey defines equity as "fair treatment for all people, so that the norms, practices, and policies in place ensure identity is not predictive of opportunities or workplace outcomes." In our industry, that means minority lawyers must get more opportunities to lead, both within their firms and on the most essential disputes cases (i.e., leading jury trials and arbitrations) and being front and center on the most significant transactional matters. Have clients and firms exhausted providing these meaningful opportunities?

Here, the latest iteration of the Portrait Project, a joint study by the American Bar Foundation and the National Asian Pacific American Bar Association into representation among Asian American attorneys, reveals the scale of the challenge. While Asian American attorneys comprise 8.8% of all lawyers in the Minority Corporate Counsel Association's 2022 diversity survey, the Portrait Project shows they hold just 4.1% of seats on executive management committees. Black and Latinx attorneys have leadership positions in numbers that are broadly in line with their representation across the industry. However, there are fewer Black and Latinx lawyers as a whole.

Here, progress will require true partnership between firms and their clients. We must ensure that diverse attorneys are the ones arguing the case, reporting to the board, leading the arbitration or negotiating the deal rather than just being team members. Firms need to sponsor and support their people to build leadership experience from the moment they arrive. When partners retire, every effort must be made to pass their relationships on to female attorneys and lawyers of color. Diverse colleagues should be given responsibility for P&L, work allocation, and be given a chance to inherit traditional firm clients. But clients must also want minority lawyers to take their most high-profile roles. Few pitch processes today fail to demand that law firms put forward diverse teams. The demands now need to go further; if there's a Latina woman in the group, clients must insist she leads the trial. Law firms must create the supply and clients must create the demand. Until this happens, we will never have a truly equitable profession, and all the laudable efforts by Firms to identify, attract, and promote diverse talent will be wasted.

As an Asian Pacific American lawyer, this is something I see every day—and something I have a responsibility to change as a partner at A&O. I work for amazing clients and love what I do. But I also often feel lonely—rarely do I find myself opposite another Asian Pacific American in court. My experience is borne out by research; a few years ago, an analysis of the outside lawyers representing big tech companies revealed that they were less diverse than the businesses themselves. And this is not an issue that is unique to the United States—my colleagues in London have also remarked on the lack of diversity in U.K. courts.

The issue of uneven work allocation has also been discussed at length. A survey last year of female attorneys at the biggest firms revealed that despite being generally positive about their careers, only 26% felt mandates were allocated fairly. In a recent interview with Bloomberg, litigator Faith Gay—who founded the majority female-owned firm Selendy Gay Elsberg in 2018—remarked that early on in her career, she realized that "no client would be passed down to me." She also highlighted that handing minority lawyers "the trappings of power is no substitute for actual power." "Sometimes with the best of intentions," she said, "Big Law puts women in administrative positions with the idea of giving them leadership roles ... Every moment you're spending on administrative work ... and not cultivating client relationships, you're losing valuable opportunities."

Businesses have for years been saying they want to give more of their matters to diverse lawyers. We have all heard the "calls to action" by general counsel.

In 2020 the same call was made in an open letter from the GCs of some of the world's leading investment banks. "We are committed to promoting diverse talent by providing or enhancing platforms to increase the number of racially and ethnically diverse employees in leadership roles," it read.

Despite this intent, when the Institute for Inclusion in the Legal Profession surveyed more than 100 U.S. businesses last year—half of which were members of the Fortune 500—it found that the majority gave less than 10% of their mandates to racial and ethnic minority lawyers. While it is, of course, true that this can only happen if there are more minority attorneys to do the work, the study also included several revealing quotes about where some respondents saw their role in improving diversity across the legal industry.

Many will agree that clients shouldn't have to force their outside counsel to do better—law firms should go further than proposing diverse teams and then having the same familiar faces lead the big mandates. But driving change doesn't have to come with a significant compliance burden. Instead, clients should stipulate that they want diverse attorneys in key roles on their matters—or that work will go elsewhere. To fulfill the requirement, firms must ensure they have lawyers with the skills and experience to do the job. This is the sort of collaboration that can make a meaningful difference.

Increasing retention requires firms to increase engagement among minority attorneys. Firms need to show that DE&I is about more than just numbers and that their commitment involves giving diverse colleagues a chance to lead. Within this, firms need to focus on career-long sponsorship, not just supporting minority attorneys when they are starting out or progressing through the associate ranks. Diverse partners need their peers to open up their relationships so they can demonstrate their talent. Only when young minority lawyers understand that there is a path to being a partner and a successful partner— with accountability for important clients and the trust of their peers to handle the most significant assignments—will we see genuine and lasting change.

Bijal V. Vakil is a founding partner of Allen & Overy's Silicon Valley and San Francisco offices. He is co-head of the firm's technology practice and an active member of the firm's global internal partner promotions committee and diversity, equity, and inclusion committees.

This article was first published on law.com for The Recorder on 21 June 2023