DIVERSITY ACTION MATTERS Innovative Action to Improve Opportunities for Diverse Business Lawyers. Presented by. cmcp.org

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1 DIVERSITY ACTION MATTERS Innovative Action to Improve Opportunities for Diverse Business Lawyers Presented by cmcp.org

2 The California Minority Counsel Program (CMCP) is a California 501(c)(6) non-profit mutual benefit corporation, dedicated to promoting diversity in the legal profession by providing attorneys of color with access and opportunity for business and professional development. CMCP is the only state-wide organization that brings business lawyers of all races together as members and colleagues, regardless of the type of organization in which they practice, for the purpose of achieving diversity and inclusion within law firms and in-house law departments, and in the outside counsel spend of corporations and government agencies.

3 INTRODUCTION 1 1. ACTION TO RECRUIT & RETAIN DIVERSE TALENT 2 2. ACTION TO HELP LAWYERS DEVELOP PROFESSIONAL SKILLS 4 3. ACTION TO CULTIVATE FUTURE LEADERS 6 4. ACTION TO FACILITATE AND IMPROVE ACCOUNTABILITY 7 FOR DIVERSITY BUSINESS 5. ACTION FOR PARTNERING BETWEEN CLIENTS 9 AND OUTSIDE COUNSEL 6. NEW WAYS TO THINK ABOUT DIVERSITY 11 1

4 INTRODUCTION November 2015 In the legal diversity movement, just as in life, we know that actions can speak louder than words. CMCP s slogan declares that Diversity Matters. And through all it does, CMCP proves that Diversity Action Matters. For over 25 years, the California Minority Counsel Program has been committed to action to improve diversity in the business legal community. Every day, CMCP provides attorneys of colors with access and opportunity for business and professional development, and helps law firms, companies and public agencies achieve their diversity & inclusion goals. Figuring out diversity action steps for your firm or organization can be a challenge. So we decided to gather ideas from the client community. Last year, as CMCP celebrated its 25th anniversary, we surveyed General Counsels and other highranking in-house attorneys at major companies. We asked them to identify innovative, concrete actions that could measurably improve diversity in the business legal community over the next 5 years if such actions were taken by the relevant constituents (majority law firms, minority law firms, corporate and public agency law departments). Marci Rubin Executive Director Emeritus, CMCP This report contains many of the ideas we received. Some suggest new behaviors; others call for new ways to think. Some are timeless in their simplicity; others are more robust and complex. Within these pages, we hope that firms and companies find actions to implement today. But more importantly, we hope these suggestions will spark even more ideas for tomorrow. In fact, if you or your organization have more recommendations, please contact CMCP to share your thoughts. For now, we applaud the representatives of these companies for contributing to this report: AXA Distributors/AXA Equitable Life Insurance Company; Chevron Corporation; Fox Group Legal (Fox Entertainment Group); Freddie Mac; Gap Inc.; Gateway One Lending & Finance; LEGO Group; Microsoft Corporation; Newegg Inc.; Southern California Edison; Toyota Financial Services; Univision Communications Inc.; and Viacom Inc. As it enters its second quarter-century, CMCP is proud to continue serving as the California Business Attorney s Diversity Partner a partner that knows it takes action for diversity to truly win. Jimmy Nguyen Partner Davis Wright Tremaine LLP and former CMCP Co-Chair 2

5 PART 1 ACTION TO RECRUIT & RETAIN DIVERSE TALENT Recruiting and retaining diverse talent is key, and a number of companies provided suggestions on that front. Mary Francis at Chevron and Gary Roberts from Fox Group Legal both tout partnering between companies and law firms through a summer clerk program; and Gary chronicles the success of Fox s Summer Fellowship Program. Michael Fricklas from Viacom gave perspectives on both recruiting and retention of diverse lawyers. And Mary Snapp from Microsoft spotlighted the need to increase bar passage rates for African American and Hispanic law school graduates. Companies and law firms can implement a summer clerk sharing program. Mary A. Francis Corporate Secretary & Chief Governance Officer Chevron Corporation Law firms can place one or more of their minority summer associates into client in-house law departments for a week or two over the summer. This enhances the summer associate s perspective and currency at the firm through the opportunity to observe how legal matters are administered in-house and how outside counsel can best respond to client needs. Gary D. Roberts Executive Vice President Fox Group Legal, for Fox Entertainment Group Corporate law departments can partner with law firms to institutionalize training and mentoring programs targeting diverse law students such as a Summer Fellowship Program for 1 st year law students. We have found that early training and career development through a summer fellowship program for diverse 1st-year law students can have a tangible impact on law school performance and career choices of diverse law students. In 2011, Fox Group Legal, in conjunction with outside counsel, initiated a 10-week paid summer program for 1Ls committed to improving diversity in the legal community. The Diversity Fellowship Program leverages our partner law firms existing summer programs and Fox s companywide internship program to provide a unique split-summer program for 1Ls. The goal of the Diversity Fellowship Program is to broaden the pipeline of diverse attorneys moving to major law firms and in-house departments. The program provides a unique opportunity for firstyear law students to work on a variety of legal issues in entertainment, intellectual property, media, anti-piracy, and employment, and to gain experience both in a law firm and a Hollywood studio in-house legal department. Given that tenure at a major law firm is often a necessary precursor to working in-house, Fox Group Legal now has relationships with more than a dozen diverse and talented attorneys who are receiving the experience and training to potentially succeed at Fox. 3

6 PART 1 ACTION TO RECRUIT & RETAIN DIVERSE TALENT Michael Fricklas Executive Vice President, General Counsel and Secretary Viacom Inc. If you want your organization to be more diverse, make sure to recruit from a wide variety of sources and make special effort to seek out candidates from underrepresented groups. Cultivate people early long before you re ready to hire. Notice talent on the other side and talent at conferences, bar committees and pro bono activities and keep in touch. Keep in touch with people who are good who ve left but might someday come back. Keep in touch with people who are in the communities you wish to recruit from, so you can tap their networks. Consider your human resources practices generally before you focus on specific inclusion programs. It is important that everyone be seen to be valued, have access to mentors, be included in events and have opportunities to be promoted. Programs that are not available to 100% of your team can create division, rather than inclusion. People of every stripe want to be seen as successful because of their hard work and their talent, and not because of special consideration. If your HR practices are poor if people feel left out, disregarded, unattended to, bullied, overworked for no legitimate reason the harm will disproportionately fall on your diverse population, and you will find yourself unable to recruit and retain the people you want in your organization. Find ways to support higher bar passage rates for African American and Hispanic American law school graduates While many law firms, in-house legal departments and others helpfully are increasing development, mentoring and growth opportunities for under-represented minorities, evidence shows that we continue to lose out on the chance to recruit many promising professionals before they begin their career. Last year Microsoft commissioned a research study examining the diversity gap in the law, and lessons we might learn from other professions efforts to increase their diversity. Within the findings, raising bar passage rates for Black and Hispanic test takers stood out as an opportunity where additional support could yield a significant impact. The last published study on the topic of bar passage reported more than 20% of Blacks and over 10% of Hispanics achieve graduation from law school, but then do not pass the bar exam, effectively ending their journey towards practicing law. Mary Snapp Corporate Vice President and Deputy General Counsel Microsoft Corporation 4

7 PART 2 ACTION TO HELP LAWYERS DEVELOP PROFESSIONAL SKILLS Professional development is critical to success, both in-house and in law firms. Jennifer Ishiguro from Gateway One Lending & Finance and Michael Fricklas from Viacom both suggested action items to support professional development. Jennifer Ishiguro Executive Vice President and Chief Legal Officer Gateway One Lending & Finance, LLC Help minority business counsel improve their self-presentation and pitch skills. A key component of this is listening and understanding the needs of the potential or existing client and their business - not just doing a hard-sell or pitching their practice without understanding client needs or suitability. Suggested action: Expand the California Minority Counsel Program s Corporate Connections speed pitching session by providing a mechanism for in-house counsel to offer feedback to the outside counsel who pitched to them. Too many external counsel after a pitch and ask for work, but they don t ask specifically on how they came across in their pitch, and often times I don t know whether they really want to hear the direct and honest feedback, so I don t offer it. CMCP can provide this in a supportive setting that is intended to help external counsel. Outside counsel should actively seek feedback from clients on their pitches. This is probably most effective (although often most difficult) immediately following the pitch and in person or via phone. Feedback can include what was done well, what they could have improved upon, how they came across, what they could have done to better prepare and get to know their client in advance, etc. Follow with a panel presentation on self-presentation and pitching skills led by in-house and government counsel that call out common pitfalls, best practices for preparation, etc. Follow with some additional pitching sessions to permit external counsel to make adjustments to their pitches with other potential clients. Most importantly, once you complete the work, actively follow up to seek feedback. Hire leadership development coaches to help minority in-house counsel with professional development and advancement. Coaches can assist the in-house counsel in learning what to do to manage one s career, to enter into discussions about promotions and advancement, how to engage in those discussions in a meaningful manner that is likely to be positively received, etc. Provide audience members a means by which to offer up their own challenges anonymously in advance, and the coach can select a few and offer up suggestions to the broader audience. 5

8 PART 2 ACTION TO HELP LAWYERS DEVELOP PROFESSIONAL SKILLS Michael Fricklas Executive Vice President, General Counsel and Secretary Viacom Inc. Corporate law departments can find opportunities for your team to do charitable and pro bono work. Charitable and pro bono work bring different people together in your department and away from the more constrained day to day work tasks, in an activity that helps people feel good about their experience. Getting together to work on something is much better than an attempt to force a social experience. Pick projects that are meaningful to your team, on which you can make a real difference and which allow your team to collaborate with each other and pick up new skills. 6

9 PART 3 ACTION TO CULTIVATE FUTURE LEADERS Another important theme was the need to cultivate future leaders now from the younger generation of lawyers. Michelle Banks from Gap Inc. and Windy Lawrence from the AXA companies made the following recommendations. Michelle Banks Executive Vice President & Global General Counsel Gap Inc. Both law firms and companies can engage in robust leadership succession planning using diversity as one of the filters in the process. When we do our annual succession plans and talent reviews, we use a diversity focus as part of that process. We look at our talent and our bench to see how diverse it is from gender, ethnicity and race, and other perspectives. We have diverse employee resource groups at our company. We also have mentoring and talent development programs that are not specific to just women and minorities. We have a lot of training available, including cultural awareness training and micro-messaging training. That s important because if you ask leaders to use a diversity filter in their talent development and succession planning, not everyone is fully equipped with what that should look like. We offer training to help leaders be more effective in managing their diverse talent pool. Also, if you just identify who is on your bench, but you don t have any programs to support them, then they may or may not succeed. We have mentoring and training programs to help ensure our talent moves along in an effective way. At the same time, we educate leaders on how to create inclusive environments, so that diverse employees want to work here and they can see that there s a way for them to succeed here and leaders are treating everyone in an inclusive way, no matter how similar or different. Windy Lawrence Chief Compliance Officer, AXA Distributors, LLC Lead Director and Associate General Counsel, AXA Equitable Life Insurance Company Identify diverse talent at the mid-career point and team up on them. Currently, talent development and succession planning happens without direct input from the employee. In the legal department, key talent needs dedication of multiple constituencies (it takes a village) devoting a concerted effort. This currently happens informally, but not all emerging talent can tap into those less formal networks. A true commitment to diversity recognizes this dynamic and builds formality and a process that provides another mechanism to fold all talent into the networks that accelerate careers. 7

10 PART 4 ACTION TO FACILITATE AND IMPROVE ACCOUNTABILITY FOR DIVERSITY BUSINESS Numerous in-house attorneys stressed the need to direct business to female lawyers and attorneys of color, and to ensure accountability for diversity as a business practice. Here are suggestions made by lawyers from Freddie Mac, Univision, Southern California Edison, and a Fortune 500 company. Barry Parsons Associate General Counsel, General Litigation & Investigations Freddie Mac Focus on making small connections for diverse outside counsel to in-house colleagues. If I meet diverse outside counsel that I think would be a good fit for our work, I try not only to pass their information on to my colleagues who do that work, and include them in our database of outside counsel, but I also offer to have them meet with my colleagues - whether an in-office meeting, lunch, coffee, etc. Taking the time to help facilitate that personal connection, I hope, can make the difference if they practice in an area that I don t. And if they practice in my area, while I can hire them, I also want to make sure my colleagues who hire in the same area are aware of them too. Provide economic consequences to diversity issues. Have individual salaries be impacted by a lawyer s diversity efforts Companies should make sure that diverse attorneys get law firm credit for work they are doing or bringing to the firm. Adopt a standardized form for in-house legal departments to rate law firms on diversity efforts. Jay R. Grant Senior Vice President, Associate General Counsel Univision Communications, Inc. One useful tool may be the adoption of a standardized form used by the majority of in-house legal departments that would rate law firms on diversity efforts. I have seen forms from some companies, where billing efficiency and diversity are given equal weight to encourage law firms to prioritize the effort, or risk losing the business to firms that do. If a form questionnaire or form is not used, in-house counsel should ask law firms to outline current diversity and inclusion as a question during every on-boarding of new law firms. 8

11 PART 4 ACTION TO FACILITATE AND IMPROVE ACCOUNTABILITY FOR DIVERSITY BUSINESS Chief Counsel Fortune 500 Company In-house counsel should set diversity metrics for the law firms they use, and administer consequences for meeting them or not meeting the metrics. For example, if a firm does not have any minority attorneys, they are disqualified from bidding for new work. Conversely, if they have good minority representation, they are rewarded/acknowledged for their success in that respect. Russell Swartz Senior Vice President and General Counsel Southern California Edison Company Jennifer Tsao Shigekawa Assistant General Counsel Southern California Edison Company Use outside counsel annual reviews to evaluate diversity. Our Company prepares annual performance reviews of our strategic outside counsel firms. We plan to include a section on diversity in these annual reports and factor a firm s diversity efforts/results into the annual performance and compensation review. Companies can have Diversity Committee meetings with law firms. Our Company has a Diversity Committee comprised of in-house counsel and staff. At a recent conference, we heard of an idea to have our Diversity Committee meet with some of our majority law firms to explain our commitment to diversity and encourage those law firms to improve diversity within their firms. We are considering conducting such meetings, at which we could ask the law firms for action plans for increasing the diversity of the teams working on our Company s matters, developing minority attorneys to be in a future position to receive origination credit for our matters, etc. 9

12 PART 5 ACTION FOR PARTNERING BETWEEN CLIENTS AND OUTSIDE COUNSEL In-house counsel and diverse outside counsel should partner together in order to strengthen relationships. That s the message from the following lawyers at Southern California Edison, Toyota Financial Services, and the AXA companies. Invite minority outside counsel to company management meetings. We heard of another great idea to invite minority attorneys from our outside counsel firms to brief our Law Department and/or Company management on significant matters they are working on for the Company, or regarding their areas of legal expertise for which we have a need for outside counsel. Russell Swartz Senior Vice President and General Counsel Southern California Edison Company Jennifer Tsao Shigekawa Assistant General Counsel Southern California Edison Company Mark Tarango Managing Counsel Toyota Financial Services Companies can hold annual on-site events to educate diverse law firm participants about the companies business and cultivate relationships. Business lawyers excel when they understand the business they represent. That is a concept that even seasoned lawyers constantly learn about, and a direct opportunity to learn it from the companies that they represent would enhance their careers. Companies could hold annual on-site ½ day sessions, with business over-views, meet-n-greet and receptions for diverse outside counsel. Putting law firm attendees through the equivalent of the company s new hire training or something similar would give the outside lawyers a deeper understanding and relationship to do work down-the-line. 10

13 PART 5 ACTION FOR PARTNERING BETWEEN CLIENTS AND OUTSIDE COUNSEL Windy Lawrence Chief Compliance Officer, AXA Distributors, LLC Lead Director and Associate General Counsel, AXA Equitable Life Insurance Company Corporate law departments can implement a more holistic strategy to partner with minority law firms on work-engagement-community. Corporate legal departments can identify (along with their procurement departments) minority-owned law firms and devise a strategy on the types of matters (specific or general) they will use to engage the firm. Although many legal departments do this already, it s done as more of a check the box strategy. The relationship with a minority-owned firm should be more holistic in order to nurture the firm, while allowing the company to get to know the firm. Firms should commit to doing a few CLE presentations in the year, which gives lawyers in the corporate legal department an opportunity to form personal connections to the firm. The corporate legal department and the law firm can also co-sponsor a sustainable scholarship or internship through a local law school or law-school bound students. This provides commitment to the pipeline for more future diverse lawyers. 11

14 PART 6 NEW WAYS TO THINK ABOUT DIVERSITY Finally, two respondents challenged the legal community to think differently about diversity. Here s what Robin Smith from LEGO Systems and Lee Cheng from Newegg are thinking: Robin Smith Vice President and General Counsel, Americas LEGO Systems, Inc. To support development of women in the legal profession, implement a program series that focuses on what women do right rather than on what they supposedly lack. In the course of working with my company on its gender diversity agenda (to determine how to more actively promote the development of female talent in our company and hire more qualified female talent), I have noticed just how many articles and other media are directed toward telling women what they still lack or still need to improve in order to achieve for example outlining in a seminar brochure all of the things that women still need to do to make themselves ready or capable of succeeding ( Confidence! How to speak up in meetings! How to assert yourself! How to get your point across in a room full of men. ) If you look around, there are no such articles and seminar ads that do the same for men. Is it because everyone just agrees that they don t need it? I like to think not, but it does create that presumption. Having these statements out there, constantly bombarding women tends (in my mind) to create a self-fulfilling prophecy. Or it keeps women thinking that they still have so much more work to do. Or that they will never succeed, if they will succeed at all. There are certainly women who could benefit from this help. But, for once, I would like to see a law firm or company embark on a campaign of pointing out how many things women do right, what strengths they have, and what they add to the success of a business. Rather than just the occasional speaker or the occasional article, implement an actual program that goes a whole year and has a successful woman come in every month to run a session on how she took the strengths that she had (not what she was told she needed to have) and used them to be successful. Expand the definition of diversity to include people who have ideas different from your own. I really think that true diversity can be increased most by people just keeping an open mind. I would encourage everyone to not limit their definition of diversity to the outer indicia ethnicity, gender, sexual orientation but to embrace and learn from people who have ideas that are different than their own. Monolithic thinking and behaviors do not only afflict non-minorities. Quite seriously, I think diversity could be increased most if white, male, heterosexuals could also be considered diverse based on the content of their characters, rather than their ethnicity, gender and sexual orientation. Lee Cheng Chief Legal Officer, Senior Vice President, Corporate Development and Corporate Secretary Newegg Inc. 12

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