The picture is similar in the UK according to a 2020 report by The Law Society. The study showed that only 8% of partners in the UK’s top 50 firms come from black, Asian and minority ethnic (BAME) backgrounds, representing a rise of just 1% since 2014.

And March 2020 research by the UK-based Solicitors Regulation Authority (SRA), shows that black lawyers comprise 3% of the total number of lawyers in firms—no change since 2017.

A vicious circle

One of the main problems is that while firms are attracting diverse candidates at entry level, they are failing to reach the upper echelons of the legal sector.

“Having spent a majority of my career in private practice at various firms, there is a chasm between many firms’ stated commitments to diversity, and the actual numbers of diverse attorneys who succeed in the firm,” Salinas explains.

For example, a 2020 survey carried out by Allen & Overy found that black lawyers leave the firm two years and five months earlier than their white colleagues, while Asian and minority ethnic lawyers leave the firm seven months earlier, prompting a review by the firm (see panel below).

According to the founder of London-based diversity recruitment firm Rare, Raph Mokades, achieving ethnic diversity at entry level in law firms has simply not led to sufficient ethnic diversity at senior levels.

He says: “Ethnic minority people have a harder time in law firms. Black people have probably the hardest time of all. One lawyer told us: ‘People assume you’re junior. You have to say something 15 times to be heard compared to your white counterparts’.”

The environments in law firms are not inclusive, and black lawyers can find their workplace “very emotionally trying”, according to Brown. “There is this expectation to fit in; essentially you feel as if you have to hide parts of yourself to be at the firm. It’s tiring and exhausting and people end up leaving before they can get to those senior ranks.”

Law firms need to “aggressively push further” to understand the issues that continue to create challenges and invest in the programmes and initiatives that address them, insists Eldora Ellison, director at Sterne, Kessler & Fox.

“We need to take care of people of colour and help them to be successful once they enter firms. I think that means mentoring in a very meaningful way, not just offering lip service, and giving candidates unbiased feedback to help them succeed.”

This need for quality mentorship remains a central problem for young diverse lawyers, as a result of a vicious circle in law firms.

“The rate of attrition among minority attorneys is disproportionately high, which then results in even greater underrepresentation of black and Hispanic attorneys at the senior associate and partner levels of law firms,” explains Burwell.

“Consequently, junior black and Hispanic attorneys face a comparative shortage of people who can serve as mentors and role models.”

Beyond targets

IP lawyers argue that while efforts to create diverse organisations are not new, most have been centred around achieving target goals, rather than tackling deep-rooted prejudices.

“Targets are important, but creating an equitable environment is more than just metrics. There are individuals behind the metrics and there needs to be more focus on inclusion and belonging efforts,” argues Theresa Conduah, partner at Haynes and Boone in California.

“Learning about the experience and barriers faced by black people is a critical step in driving change. There has to be an openness to redefining systems to create a more equitable environment.”

Many of these targets, lawyers tell WIPR, have been broad-brush, box-ticking exercises with little attention paid to the underlying problems faced by black and other attorneys from ethnic minority backgrounds. Increased diversity, they caution, won’t materialise by focusing on the overall number of “minorities” in the IP profession.

“Diversity has been bucketed in a way that has been detrimental; everybody has been lumped in together,” notes Brown.

Another pivotal issue has been the dearth of investment in diversity and inclusion (D&I) initiatives. “In the past, there’s been a lot of talk without a lot of action and, frankly, not a lot of money, says Turner.

“You have to put money behind diversity; if you don’t, it won’t work. Firms have to devote resources to it. That has been part of the missing piece that needs to be brought to bear.”

There is a call for diversity efforts to be increasingly linked to rewards and compensation in law firms to ensure real change.

Notes Burwell: “Financial incentives, among the factors considered in making compensation, can also play an important role in providing incentives for individual attorneys to increase their own activity in helping to improve diversity.”

According to Jean Lee, chief executive officer of the Washington, DC-based Minority Corporate Counsel Association (MCCA), this approach has yet to be broadly embraced by the legal sector or the corporate sector, despite ongoing calls from diversity campaigners.

“I don’t think there’s more than a dozen law firms and corporations that tie compensation with diversity, which is interesting because corporations and firms are focused on results and performance, and diversity enhances these,” she reflects.

I. Stephanie Boyce, president of the Law Society of England and Wales, notes that when it comes to linking remuneration and bonuses to D&I, many firms are unsure how this would work or could be measured.

“The benefit of linking compensation to D&I efforts is that it sends a clear message from the top that the firm is serious about inclusion, but the practical challenge of how this can be measured and matched against remuneration may explain why firms are hesitant to take this approach,” she explains.

A tough stance

Some go even further, arguing that penalties or warnings should be issued when goals are not met.

“To ensure that leaders do not just pay lip service to D&I goals, meeting targets should go a long way in measuring the effectiveness of leaders when they are being reviewed,” argues Joy Azemura, senior associate at Jackson, Etti, & Edu.

“As much as this policy might seem punitive, it may be an effective method of improving D&I commitment.”

If they fail to take action, law firms may increasingly find that they incur clients’ ire. Companies including HP, Facebook, Microsoft and Walmart have all laid down diversity guidelines they expect external counsel to meet. In October 2020, general counsel from JP Morgan Chase, BNP Paribas, Goldman Sachs and Bank of America called on law firms to support D&I aims, as well as meeting their expectations related to diverse staffing (see panel below).

Such measures are welcomed by lawyers with diverse backgrounds. “These efforts are critical to the goal of improving diverse representation in the legal profession, as without a business imperative being tied to diversity initiatives, historical underrepresentation will undoubtedly continue,” explains Salinas.

Keeping the momentum

Can the momentum of 2020 be sustained? As the threat of the COVID-19 pandemic subsides and normality resumes, is there a risk that the momentum could evaporate?

“There’s a danger that people will get tired—tired of hearing about it, tired of seeing it everywhere, tired of talking about it,” notes Conduah.

“But not everyone has the privilege of getting tired. We need to take this moment of awareness and go beyond ‘check the box’ training and take a deeper look at biased systems and structures.”

As Turner notes, the staying power of movements like this has “historically been difficult”, but he optimistically compares the impact of the BLM movement in 2020 to the enduring cultural impact of events in the 1960s.

“The staying power of the civil rights movements of the 1960s has been quite long-lasting. That was a change period that people remember: I think the staying power of 2020 will be similar,” he concludes.