The perspective of a black partner on why law firms are failing at diversity
I anticipated being pulled over, and that aspect of the interaction was entirely appropriate. I was accelerating on a two-lane highway near my residence early one morning when a highway patrolman passed me in a curve while traveling in the opposite direction. He disappeared swiftly over a hill without activating his blue lights. Nevertheless, I parked my late-model luxury vehicle on the side of the highway, retrieved my driver’s license and registration, and waited. The Caucasian law enforcement officer quickly reappeared and repositioned his cruiser behind my vehicle. As he approached, I had already lowered my driver’s window.
He skipped the preliminaries and asked, “Whose car is this?” I’m certain that I exhaled and moved my head slightly. Then I declared, “It’s mine.” I extended my arm and announced, “And here are my license and registration.”
He left me in suspense. He inquired, “What’s the make and model?” A lump formed in my esophagus, and I paused momentarily as I attempted to comprehend what was occurring. Then, despite not wanting to, I described my car to him. As my arm continued to rest on the window ledge, I repeated, “Here are my license and registration.” He returned to his cruiser with them this time. He issued me a ticket and wished me a pleasant day.
At the time of that halt, I was en route to a federal court case management conference. I was wearing a white shirt with a starched collar, dark suit trousers, and a silk tie. My suit coat was visible from the rear compartment of the vehicle. Similar to a case dossier. On top of the file was a copy of the federal civil procedure regulations. When I answered the patrolman’s inquiries, I did so through the use of relatively recent and pricey dental work.
When I arrived at the conference, I informed the white counsel opposite me about the halt. He was astonished. He told me that he was certain he would not have been asked those questions if he had been stopped while wearing trousers and a T-shirt. Thus, I was not delusional, nor were my emotions misguided. Despite indications that I was a lawyer (or possibly a judge), the patrolman, who was also employed in the legal system and had undoubtedly interacted with attorneys, saw only a person of color. This fact was sufficient for him to disregard objective indicators of my profession and to instead default to a negative evaluation.
I will not recount all of my thoughts and emotions regarding that incident. However, it became more apparent to me than ever before that what may be acceptable for white attorneys to do or not do and still be accorded professional recognition and respect does not apply to me. Women and non-white attorneys constantly confront the threat of marginalization. I believe that, for a lawyer with a diverse background, this situation necessitates strict professionalism in every sense of the word. Despite the fact that it may not seem like much, I oppose casual Friday. And law firms must make every effort to foster an environment of opportunity and inclusiveness.
This year represents my thirty-year anniversary of practicing law. My experience consists of a judicial clerkship, service as a Marine Corps Judge Advocate, criminal cases as a prosecutor and defense attorney, civil law practice representing defendants and plaintiffs, working for a small black-owned firm, being a partner in a small plaintiffs practice, and, for the majority of my career, being a partner at a top 150 law firm.Twenty-five years ago, another black lawyer and I became the first black attorneys at my firm, which at the time was based exclusively in Mississippi. We were a part of the first genuine drive for diversity in practices with a large majority. I was soon the only black attorney at the firm. I, too, left but eventually returned; I’ve been back for over a decade. The company now has national and international locations. Our current percentage of minority attorneys is 7%. I am optimistic about our progress and determined that we will perform significantly better in the future.
But the problem is even worse at the national level. Only 2% of law firm associates are black, according to the most recent data from the Vault/Minority Corporate Counsel Association Law Firm Diversity Survey. These figures have remained relatively stable over the past decade.My practice focuses on complex, nationwide litigation. This affords me the chance to collaborate closely with attorneys from every conceivable origin at large majority law firms. In addition, I have been elected to firm management, held administrative positions, and participated in the hiring process at Butler Snow. These experiences have left me with certain impressions regarding the development of diversity and inclusion initiatives, specifically the retention and promotion of black attorneys.The following remarks address three of the numerous factors that, in my opinion, contribute to a law firm environment in which diverse attorneys are marginalized and their eventual departure is inevitable.
First, diverse attorneys are not afforded the same presumption of competence as other attorneys. Despite thoughtful diversity initiatives and aggressive recruitment efforts, many attorneys of color work in an environment that does not view them equally. This is known as confirmation bias, a mental shortcut that causes individuals to actively pursue information, interpretation, and memory that confirms their preexisting beliefs, while ignoring data that contradicts them.
The possible consequences of confirmation bias are evident. A lawyer of color receives fewer meaningful opportunities and fewer assignments than other attorneys. Even worse, confirmation bias results in the presumption of incompetence for attorneys of color and competence for others. Eventually, the writing is on the wall, and the departure of the counsel of color may be the most reasonable response.
Second, many firms hold the belief that any woman or non-white attorney will suffice. Women and non-white attorneys are dismayed when their images appear on glossy responses to RFPs or when they are asked to participate in proposal meetings, only to be excluded from any meaningful participation on the file. The only sin worse than being overlooked is being underutilized.This misguided approach to diversity can have repercussions that extend beyond the law firm environment and retention issue. Unbelievably, it is common practice for trial teams to include a diverse attorney solely for the sake of appearances. This act of candor will not go undetected by judges or jurors, and clients may suffer the repercussions.
Third, women and people of color attorneys are routinely introduced or approached last. I recall standing with a group of six or seven colleagues from various companies at a professional gathering. I was the only attorney of color in the group and the eldest by far. Another attorney who knew some of the others but not all of them approached and engaged in small conversation. There were introductions, and hands were shaken. When he reached me, he inquired, “What do you do? Are you part of the exploration team?” I responded “No” I am the national chief trial attorney.” “Oh, you’re Rod Richmond,” he exclaimed. I am happy to meet you. I’ve been perusing your writing.” Even though he was familiar with my name and position, he assigned me a different responsibility upon seeing me.
On numerous occasions and in a variety of contexts throughout my career, someone has initiated a conversation with a white male who is present, only to be informed that I am the appropriate person to speak with or the subject matter expert. I have also observed this happening to others. This is yet another substantial factor that may prompt a diverse attorney to seek alternative employment.The issues I’ve brought up here are grave and pervasive. However, all is not lost. In a column to be published tomorrow, I will examine how large law firms can not only attract and retain a diverse workforce.The partner at Butler Snow LLP is Orlando R. Richmond Sr.
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