Legal Meets Its Moment(s)

This article was originally published on Law.com and is reposted here with permission.

For the legal profession to fulfill its mission, it must be in sync with the times; it must be in lockstep with the directional forces propelling its environment and global community toward progress and modernity.

Recent events have brought to the fore the importance of the rule of law and the lawyers who stand for it. In the same inspirational moment, those of us who hold the power of purse or influence in our profession must use it to nudge, push, and pull our legal ecosystem forward in order to meet twin moments of our time: the ramifications of a virus upending the way we work, and the reckoning with a call for racial justice that highlights the inadequacy of our own diversity efforts.

These twin moments don’t exist in parallel. They intersect in important and meaningful ways. Our response to, and the solutions for, diversity and the COVID economy are more intertwined than we realize. Before addressing their convergence, let’s spend a bit of time unpacking each, starting with the topic to which our industry has given significant lip service.

Diversity

Publications like this are awash in articles about how the legal industry can better facilitate a more diverse community of lawyers. However, as a profession, we’ve failed: Women represent just 37% of all U.S. lawyers. What’s more, only 14% of lawyers identify as racial or ethnic minorities, and fewer still (5%) identify as Black.

Legal leaders with all the right intentions have challenged peers in the industry to improve our numbers, failing to recognize the problem, in part, lies in our focus on improving rather than transforming. It’s not just that incremental change (a percentage here, a percentage there) is inadequate—it’s that the current bar is so unacceptably low and our future ambitions are so woefully insufficient. For the legal profession to be an effective vehicle of justice, we must be as diverse as the society we serve: in gender, race, ethnicity, background, thought, experience. Our metrics and our goals can’t be any less than that.

When the problem is this systemic, the answer must be programmatic. We must fundamentally hardwire (or rather, rewire) our models and processes to have diversity at their core. This rewiring will ultimately address the structural obstacles inherent in our profession, but it must start with a focus on the right numbers. Indeed, it must start with a more thorough investigation of what “good” looks like: identifying the appropriate peer groups to measure against within our industry and outside of it; understanding how to assess progress in real representative terms, beyond typical diversity yardsticks; and then once identified, setting explicit diversity KPIs and relentlessly measuring against them.

A programmatic Diversity by Design effort will require us to find and nurture the talent to make “good” the reality. To do this, legal must unlock, and then swing open, the gates to entry and opportunity. We must remove the bias that disproportionately values a narrow definition of pedigree. We must acknowledge our contribution to creating an unsustainable work-life imbalance, which endlessly replicates an antiquated model. We must recruit talent from a broader pool of academic institutions and previous employers. We must free ourselves from the handcuffs of outdated regulations that make finding, retaining, and advancing the right talent—diverse talent—insurmountably harder.

Which brings us to the other twin moment … 

The COVID Economy

Legal’s response to the pandemic has challenged long-held industry myths and at least one outright falsehood. For years, as colleagues experimented with virtual workplaces, lawyers were told that the sensitive nature of our practice made remote work impossible. This past year has proven otherwise.

As we rethink the ties that bind us to “the office,” we must also think about the regulatory ties that stifle us in other ways—those ties that have put obsolete and industry-unique limitations on where legal can find talent, and where we can deploy that talent.

If we have found, by virtue of COVID, that lawyers can effectively practice from their dining room chair, should it really matter if that chair is in New York or New Mexico? And if there is a disproportionately large pool of diverse, expert attorneys with appropriate practice-specific experience in Atlanta, should that talent pool be regulatorily inaccessible to a client in Anchorage or a law department in Anaheim?

Just as doctors operate based on specialty without borders, so too should lawyers practice based on location-agnostic expertise. Freeing legal talent from siloed state bars creates an infinitely more fluid, limitless, and accessible pool of diverse talent.

We welcome the recent opinion of the ABA’s Standing Committee on Ethics and Professional Responsibility that finally recognizes this reality. Likely prompted by COVID, that opinion significantly advances the legal industry’s ability to bring opportunity to a much more diverse set of lawyers, and to make them accessible to the clients who need them.

Of course, regional regulations are not the only ties that bind and are certainly not the only ones to suffocate industry diversity. The U.S. has long limited law firm ownership to lawyers. Recent state-specific initiatives to expand ownership would serve to increase the access to, and flow of, capital to the legal industry. Without that expansion, the industry’s protectionism continues to support a bias toward exclusion instead of inclusion, all under the guise of a spurious defense of the ethics of the profession. External capital is crucial to challenge the stronghold lucrative firms have over our industry, standing in the way of a reinvention that could finally open the door to meaningful diversity progress.

Let’s put a finer point on it: That capital is critical not only to disrupting that status quo, but to investing in the training, recruitment, and programmatic infrastructure necessary for meaningful diversity measures to have an actual impact. Moreover, the introduction of other professionals—technologists, project managers, compliance professionals—in non-lawyer owned firms would not only bring an old-world profession new-world skillsets, it would tangibly enable legal organizations to access and employ additional innovative populations of talent with endlessly diverse backgrounds.

These seemingly disparate dots are connected. Meaningful industry freedom—freedom in the what, where, and who of legal practice—is the connective thread we risk missing. Embracing these twin converging moments as reasons to modernize, now, will enable us to finally ensure the success of the programmatic diversity efforts we owe our society.

To my peers in legal leadership I say this: we no longer have an opportunity to advocate against our profession’s limiting regulatory structure; we have an obligation. We can no longer seek to simply improve our diversity numbers; we must make real, reflective representation our near-term goal. The latter can be accomplished if we address the former. These twin moments must be tackled together.