Challenge

Women and minorities face far greater barriers to advancement in the legal profession than white, non-diverse men. I want to level the playing field so who rises in the profession is determined by merit – not by gender, race, sexual orientation, ethnicity, religion, or any other minority characteristic.

The numbers speak for themselves

Studies show that society carries deeply ingrained biases against women and people of color rising in the workplace. This sadly holds true in the legal profession. The "Harvard Study, On Gender and Origination in the Legal Profession (Perspective)" by Heidi Gardner, shows that gender has a powerful influence on client inheritance. In fact, an attorney's gender is a great predictor of whether she or he will inherit work. This is true regardless of the hours the sexes work, their hourly rates, the average billing rate of their teams, and the number of clients in which each is the lead partner.

The data is jaw dropping. "[W]hen male partners have strong ties to a partner who then retires (i.e., work more hours for that senior partner's clients before he retires), that male is likely to become the new lead partner. Female partners, however, earn zero to negative returns for investing in inheritance: the more hours they worked for a senior partner's clients, the less likely they were to inherit the account." The female attorney is taken for granted.

Law firms generally allow unfettered bias – without so much as a written procedure – to determine who inherits clients. As a result, far more men than women tend to inherit business – and not just any business, but institutional clients. Women, according to the Harvard Study, are left to the arduous task of developing new firm clients, from scratch.

As a result, far more men than women tend to inherit business – and not just any business, but institutional clients.

This is possibly the biggest factor explaining the difference in the size of books of business between men and women, and the sexes' resulting disparities in pay and power in law firms.

Also holding women back are the facts uncovered by Sky Analytics' study of $3.4 billion in legal spending across 3,071 law firms:

1. women attorneys are being billed out at lower rates than men; and
2. women lawyers' work is discounted more often than that of men attorneys.

This is the case even though, as the enormous study revealed, there is no difference between the number of hours the two sexes bill to complete a task or the number of hours they bill per day.

The study also teaches us that the difference between the sexes' billing rates – the gap in the rates at which women are billed as compared to men – increases with their seniority. The more senior a woman lawyer gets, the lower her rate will be relative to her male counterpart of the same years of experience, whether either has taken a leave or not.

Women face other obstacles to rising as well. People perceive women in the workplace far worse than men. We hear them differently. We expect men to lead and women to be subservient, so when a male shows leadership we view him as authoritative but when a woman does, we hear her as bossy and find her offensive.

This isn't hyperbole. The study, "The abrasiveness trap: High-achieving men and women are described differently in reviews" by Kieran Snyder, published by Fortune, shows this quite strikingly. Ms. Snyder looked at critical reviews of men and women. Women received comments like, "Watch your tone!" "Step back!" and "Stop being so judgmental!" in 71 of 94 critical reviews. That means over 75% of the time, women given critical reviews were found to be abrasive. Men received such harsh feedback only twice in 83 critical reviews – less than 3% of the time. Women who express self-assurance suffer a backlash from it. Men barely do at all.

Women thus face a clear bias: when we speak, we are more likely to be criticized – and punished – for it.

People of color face harsh obstacles to rising, too. For instance, white people who perform equally well as African Americans are misperceived as being more talented and having greater potential. Another way of putting this is African Americans who perform equally well as whites are misperceived as less competent.

Another way of putting this is African Americans who perform equally well as whites are misperceived as less competent.

A Nextions study, "Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills" by Dr. Arin N. Reeves, revealed that partners reviewing identical work judged the work of a supposedly African American attorney much more harshly than that of a supposed white lawyer. In the study, 60 firm partners reviewed a single legal memorandum. On the memorandum half (30) of the partners were given, the memorandum's author was identified as a white male third-year graduate of New York University School of Law. On the memorandum the other half (the other 30) of the law firm partners were given, the author of the identical piece was identified the same way, but as an African American male. The law firm partners found far more errors in the memorandum they thought was written by an African American lawyer than in the same paper that they thought was drafted by a white man. In fact, in reviewing the identical memoranda, 30 partners rated the supposedly white writer much higher and gave him much more positive feedback. About him, they wrote such things as, he "has potential."

They did not have such kind things to say about the supposedly African American writer of the identical paper. "I can't believe he went to NYU" and "average at best" were among the things they wrote about him.

Not only that; they found far more errors in the work they thought a Black lawyer wrote. In other words, when the partners read the paper they believed was written by an African American lawyer, they did so with a more critical eye, looking for errors in it. They then picked up on more of the errors in it than in the same paper they thought a white attorney wrote. This is called confirmation bias. The partners subconsciously believed Black writers are less competent and looked for proof of that (confirmation of it) in their writing.

Even more distressing, looking back on the two studies, both women and men were more critical of the women they reviewed, and both African American and white partners were more critical of the paper they believed an African American wrote. We were all raised in a culture in which there are so few women and minorities in power, we subconsciously assume our leaders should be white and male. Those who don't fit that mold get judged more harshly.

we subconsciously assume our leaders should be white and male. Those who don't fit that mold get judged more harshly.

These biases against women and people of color in the workplace hold back women and people of color. According to the National Association of Women Lawyers (NAWL) 2017 Annual Survey Report, for the past 20 years, the percentage of women earning law school degrees has hovered between 45-50%. For over a decade now, approximately 50% of this country's law students have been women and during that time, law firms have recruited male and female entry-level associates in approximately equal numbers (50% men and 50% women).

You would expect, then, that by now, 45-50% of major law firms' equity partners would be women, but that is far from the case. Women do not even represent a third (33 1/3%) of the equity partners in the nation's largest 200 law firms, the Am Law 200. Women represent less than 20% of their equity partners, a mere 19%.

What's worse, women's representation decreases as you move from the least paid and least powerful law firm positions to the highest paid and most powerful ones. Women represent 46% of associates, 42% of non-partner track attorneys, 30% of non-equity partners, and just 19% of equity partners.

For women of color, the numbers are even bleaker. They face the double biases of the abrasiveness and competency traps described above. If they express self-confidence, they are not trusted and are viewed as mean. Their work product is also viewed with greater skepticism. Mistakes are hunted for in it.

The numbers bear this out. Women of color represent only 2% of all equity partners in the Am Law 200. Like white women, the representation of women of color decreases as you climb from the lowest paid law firm positions to the highest paid posts. Women of color represent about 10% of law firm associates, 7% of non-partner track attorneys, 3% of non-equity partners, and only 2% of equity partners.

People of color as a whole – both men and women of color – represent only 6% of all equity partners in the Am Law 200. This is the unfortunate result of: (a) the competency bind lawyers of color face; and (b) the abrasiveness trap the women lawyers face who are among the attorneys of color.

Hispanic Americans are judged even more harshly than African Americans are on both the competency and abrasiveness fronts. Asian Americans face biases, too. While one study found that they are generally presumed to have the "hard skills" required for lawyerly competence, according to the study, people generally assume they lack important "soft skills."

The problem of implicit bias – our subconscious judgments about women and minorities – has repercussions that extend far beyond law firms.

For instance, while for the past 20 years, 45-50% of those earning law school degrees have been women, according to the ABA Commission on Women report entitled, "A Current Glance at Women in the Law" (January 2017), women currently represent only 24.8% of Fortune 500 general counsel, only 35.9% of federal appellate court judges, only 34.7% of intermediary appellate state court judges, and only 34.6% of the highest state court of appeals judges.

According to the same report, the latest compensation figures, which are from 2015, show that women lawyers were paid less than 90% of what their male counterparts are. The report reveals that the numbers are even worse among those women who overcame every obstacle to making equity partner at Am Law 200 firms. Even those women are not paid equally; at the median, they are paid only 80% of what male partners are.

With this backdrop, the challenge is daunting: how can we elevate women and minorities – these disenfranchised, valuable contributors – in law firms and throughout the profession? How can we change people's perceptions about them – the perceptions of men and women, people of color and white people?

Outcome

I've developed a set of tools and tips to help female and minority lawyers level the playing field.

Practical application: PEP and other tools

To help women and minorities reach equality, I created Axelrod's Tools: Place, Echo, and Promote, tools that empower everyone who wants to be a diversity champion to drive positive change.

PLACE: This tool is about helping place women and minorities in positions that can raise their professional profiles. Think about publications in which they should write, speaking engagements suited for them, and people who can expand their professional reach. Then recommend that they write, speak, or meet those people. Better yet, tell the people offering such opportunities, or who they should meet, how great they are. PLACE them in them in opportunities to serve as CLE speakers, article writers, in Bar chair positions, on boards, and before influential people so they can rise.

ECHO refers to repeating great ideas women or minorities make, so that they get the credit for them. People don't pay as much attention to what women and minorities say in group settings. When we make a great suggestion, it often falls on deaf ears. Worse, it's not uncommon that afterwards, someone else – usually a white, non-diverse man – will raise his hand, say the same thing, and get all the credit for it.

To disrupt this dynamic, immediately after a woman or minority makes a great point, raise your hand. Say what a great point she or he made. Say the name of the person who made it, and repeat their point to ensure it gets heard. "Keyanna Jones," you could say, "made an excellent point. She said we should promote women and minorities in fair, representative numbers." After you ECHO a woman or minority, no one can take that idea from them; they'll get the credit for it and in the process, you will help raise their professional profiles.

I've been teaching this tool for years. According to the Washington Post, during the Obama administration, the women in the Obama White House used this tool (calling it "amplification") and it was so powerful, they achieved parity among those in the President's inner circle.

The last tool, PROMOTE, refers to the direct and indirect promotion of women or minorities within an organization. Direct promotion – such as elevating a woman or minority to partnership – definitely amounts to promotion. Consider women and minorities when deciding on the pool of attorneys who will get made partner. The PROMOTE tool also includes indirect promotion, something all of us can do. You don't need to be on the committee deciding who makes partner to engage in it. Simply speak highly of talented women and minority attorneys' capabilities, personalities, and professional qualities, telling people how terrifically well you regard them.

You don't need to be on the committee deciding who makes partner to engage in it. Simply speak highly of talented women and minority attorneys' capabilities, personalities, and professional qualities

"PEP" (the acronym my friend Dorothy ("Dottie") Arimond coined) women and minorities: PLACE, ECHO, and PROMOTE them.

Find what makes you unique, and build a coalition of allies that echoes your message

PEP is about raising women and minorities' professional profiles. You can also raise your own.

Look within, and be fearless. Think about where you want to see yourself in 5 or 10 years, and how you want people to describe you. Dream big. If you want to be known as an expert in equality, diversity, and inclusion, for instance, or in a niche area of law, start reading professional articles in the space. Immerse yourself in the study. If you want to publish nationally, get published in a local journal and work your way onto larger ones. If you want to get a seat on a major corporate board, consider planning your way to an in-house position, and onto smaller boards, to start. Then position yourself to move up the in-house ladder and onto larger boards.

If you really want to go far, create a vision of who you want to be, one that distinguishes you from your peers.

It's not about just the position you want. It's about who you want to be as a person, what you want to stand for, and how you want to be thought of by others. Fearlessly define that person. You will become successful in proportion to the amount of people who care about you, think highly of you, believe in you, and want to see you succeed. Think about any really successful person, and about how many people not only admire them, but truly like them, speak glowingly about them, recommend them, and open doors for them. The wider your base of professional supporters, the wider your circle of influence will be and the more easily you will be able to achieve your goals. So invest in building a coalition of allies.

You will become successful in proportion to the amount of people who care about you, think highly of you, believe in you, and want to see you succeed.

You can do so by engaging in PEP. If you PLACE, ECHO, and PROMOTE people – preferably mostly women and/or minorities – that's likely to please them, and they'll be likely to want to help you succeed, too.

You can even strategically craft a coalition of allies. Arrange meetings with people you think highly of who think highly of you. Ask them what speaking engagements, publications, and positions they want. Tell them which ones you want, and strategize how you will help each other get them.

Find out what words they want people to use when talking about them, and use those words when you do. Tell them what words you want people to associate with you. Like Carla Harris teaches in her book, Expect to Win: 10 Proven Strategies for Thriving in the Workplace, choose words designed to lead you toward your vision of where you want your career to go and who you want to be, and ask them to use those words when talking about you. Teach your allies to choose their descriptors the same way.

A great way to grow your professional profile, in addition to writing and public speaking, is to launch your own law firm. Women generally overestimate the risks they face in their professional careers. (Men generally underestimate them.) I over-assessed the risks I would face in launching my firm, figuring I would be lucky if we lasted 6 months. Launching my firm was the best professional move I ever made, and the scariest. I gave 4-weeks' notice to one of the 100 largest and most prestigious law firms in the country, but the risk paid off. We've passed our 10-year anniversary, just made two new hires, brought on a Chief Financial Officer, and are looking to expand into new cities in 2018.

Trying to move the needle on diversity and inclusion may exhaust many. They even have a term for that, diversity fatigue, but the work gives me energy and makes me feel good. It never occurred to me that being an equality, diversity, and inclusion champion would lead to a substantial book of business, but it has. Virtually every one of my client relationships arose because those clients want to move the needle, too. So when it comes to building a book of business, become the best advocate you can be for whatever matters most to you. It might just make you a rainmaker.

It's time to disrupt bias and level the playing field

I've written extensively about the profitability of diversity. No organization can be operating at its peak if it is disenfranchising a significant portion of its workforce, and women and minorities combined represent a large proportion of the workforce of any sizeable law firm.

It's in everyone's financial interest to implement changes – institutional changes and those we make ourselves – to disrupt bias. That way, we will better retain and promote our most talented, and more fairly pay everyone.

Law firms must take an active role in deciding – on a merit basis – which lawyers inherit business, the rates at which lawyers are billed, and how much lawyers are paid. If we want to reflect the ideals of Lady Justice, of a legal system founded on the premise of treating all blindly, without regard to gender, race, or other minority status, who inherits clients, billing rates, and how much attorneys are paid cannot continue to be decided on the basis of gender, race, or any other minority status.

Law firms must take an active role in deciding – on a merit basis – which lawyers inherit business, the rates at which lawyers are billed, and how much lawyers are paid.

Also, law firms need to put in place institutional measures to prevent bias from impacting who is elevated to all forms of partnership. In short, the legal profession – and law firm leaders in particular – need to create more inclusive environments for women and minorities. Those changes will not only level the playing field, but enhance the law firms.

Fearless moment

It took great courage for me to launch my firm. Doing so gave me a platform from which I could fearlessly advocate for positive change. I welcome everyone to join me in making our profession more diverse and inclusive. Quoting from my piece, Banking on Diversity: Diversity and Inclusion as Profit Drivers-The Business Case for Diversity," which remains among the American Bar Association's top listed resources, "[l]aw firms that hold women and minorities back from their full potential not only expose themselves to liability, they prevent themselves from potentially multiplying their customer base and earning greatly increased profits. They lose out on the synergistic financial competitive advantage that diversity and inclusion represent.

"[l]aw firms that hold women and minorities back from their full potential not only expose themselves to liability, they prevent themselves from potentially multiplying their customer base and earning greatly increased profits. They lose out on the synergistic financial competitive advantage that diversity and inclusion represent.

Let's make our profession better. Let's be the change we want to see.

Confidence comes from trusted answers

Thomson Reuters Westlaw™ is the industry's most preferred online legal research service, year after year. With Westlaw®, you can quickly and confidently find the legal information you're looking for to build the strongest argument. You need to know you are relying on accurate law – because your practice depends on it.

Thomson Reuters Practical Law™ is legal know-how that goes beyond primary law and traditional legal research to give lawyers a better starting point. We provide standard documents, checklists, legal updates, how-to guides, and more – created and continuously maintained by our 230+ expert attorney-editors.

Thomson Reuters FindLaw® marketing services are proven to help you proactively connect with active prospects and convert them into clients. You'll increase the awareness of your firm, create an engagement path that leads directly to you, and successfully bring those prospects into a thriving practice.

Thomson Reuters Firm Central® is cloud-based practice management software to manage the business and practice of law. With a fully integrated, user-friendly, and secure solution, you can simplify managing your business and resolve workflow inefficiencies to give you more time for practicing law.