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A black partner’s perspective on why law firms are failing at diversity

THIS ARTICLE PREVIOUSLY APPEARED IN FORTUNE.

I knew that I was going to be pulled over and that part of the encounter was entirely appropriate. I was speeding early one morning on a two-lane highway near my home when a highway patrolman passed me in a curve traveling in the opposite direction. He quickly disappeared over a hill and had not activated his blue lights. Just the same, I steered my late model luxury car onto the side of the highway, put it in park, retrieved my driver’s license and registration, and waited. Soon, the white law enforcement officer reappeared and pulled his cruiser in behind my car. I had already lowered my driver’s window as he approached.

He dispensed with the pleasantries: “Whose car is this?” I’m sure that I sighed and shook my head ever so slightly. I then said, “It’s mine.” I stretched out my arm and said, “And here are my license and registration.”

He left me hanging. He asked, “What’s the make and model?” A lump formed in my throat, and I hesitated momentarily while trying to process what was happening. Then, even though I didn’t want to, I described my car to him. Since my arm was still resting on the windowsill, I again said, “Here are my license and registration.” This time he took them and returned to his cruiser. He issued a ticket and told me to have a good day.

At the time of that stop, I was on my way to a case management conference in federal court. I was wearing a starched white shirt, dark suit pants, and a silk tie. My suit coat was in plain view in the back seat of the car. So too was a case file. And sitting atop the file was a copy of the federal rules of civil procedure. When I responded to the patrolman’s questions, I did so through very recent and relatively expensive dental work.

Upon arriving at the conference, I told counsel opposite, who is white, about the stop. He was incredulous. He told me that he was certain that if he had been stopped and was wearing jeans and a T-shirt, he would not have been asked those questions. So I was not delusional, and my feelings weren’t misplaced. Despite the indicators that I was employed as a lawyer (or perhaps a judge), the patrolman, who was also employed in the legal system and had surely interacted with lawyers, only saw a person of color. For him, that fact was enough to ignore objective indicia related to my profession and, instead, caused him to default to a negative assessment.

I won’t recount all the thoughts and emotions I have had about that incident. But it was clearer to me than ever before that what might be acceptable for white lawyers to do, or not do, and still be accorded due recognition and respect as a professional does not apply to me. Women and nonwhite lawyers face the constant specter of being minimized. I believe that for the diverse lawyer, this situation requires strict adherence to professionalism in every meaning of the word. While it may not seem like much, I resist casual Friday. And for law firms, every effort must be made to promote a welcoming environment of opportunity and inclusivity.

This year marks my 30th year in the practice of law. My experience includes 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 most of my career, being a partner in a top 150 law firm.

It was 25 years ago that another black lawyer and I became the first black lawyers at my firm, which was, at the time, solely based in Mississippi. We were part of the first real push for diversity in large majority practices. Soon I was the only black lawyer at the firm. I, too, left but ultimately returned and have been back for more than a decade. The firm now has offices nationwide and internationally. Our number of black lawyers is 7% today. I am optimistic regarding our progress and am determined that we do much better in the future.

But this problem is even worse nationally. According to the most recent data from the Vault/Minority Corporate Counsel Association Law Firm Diversity Survey, just 2% of law firm partners are black. These numbers have been largely consistent over the last decade.

My practice is complex litigation, which is national in scope. This affords me the opportunity to work closely with lawyers of every conceivable background from large majority law firms. Moreover, here at Butler Snow, I have been elected to firm management, held administrative positions, and been involved in the hiring process. These experiences have left me with certain impressions regarding the development of diversity and inclusion initiatives and, in particular, the retention and advancement of black lawyers.

The comments below address three issues from among the many that I believe contribute to a law firm environment where diverse lawyers are minimized and their ultimate departure is inevitable.

First, diverse lawyers do not enjoy a presumption of competence like others do. Despite thoughtful diversity initiatives and aggressive recruitment efforts, many lawyers of color find themselves in an environment that does not see them in the same way as it does other lawyers. This is known as confirmation bias, a mental shortcut that makes one actively seek information, interpretation, and memory only to acknowledge that which affirms established beliefs, while missing data that contradicts established beliefs.

The potential effects of confirmation bias are obvious. Assignments find their way to other lawyers, and fewer meaningful opportunities find their way to the lawyer of color. Even worse, confirmation bias leads to a suggestion of incompetence for lawyers of color and a presumption of competence for others. Eventually, the handwriting is on the wall, and a departure may be the most reasonable response by the lawyer of color.

Second, the notion exists at many firms that any woman or nonwhite lawyer will do. Women and nonwhite lawyers are dismayed at having their pictures emblazoned on glossy responses to RFPs or being asked to dutifully participate in pitch meetings, only to be omitted later from any meaningful participation on the file. The only sin worse than not being considered is not being utilized.

This misguided approach to diversity can have effects beyond the law firm environment and the issue of retention. Unbelievably, there is a practice of adding a diverse lawyer to a trial team solely for optics. This transparent act will not go unnoticed by judges nor jurors, and it is clients who may suffer the consequences.

Third, lawyers who are women or people of color are routinely introduced or approached last. I recall being at a professional meeting and standing with a group of six or seven colleagues from various firms. I was the only lawyer of color in the group and clearly the oldest. Another lawyer who knew some, but not all, of the others walked up and engaged in small talk. Introductions were made, and hands were shaken. When he finally got to me, he asked, “What do you do? Are you on the discovery team?” I replied, “No. I’m national lead trial counsel.” He said, “Oh, you’re Rod Richmond. Pleased to meet you. I’ve been reading your work.” Even though he was familiar with my name and my role, upon seeing me, he had assigned a different responsibility to me in his mind.

On numerous occasions and in different settings over my career, someone initiates a conversation with a white male who is with me, only to be told that I am the person they should talk to or who knows the subject matter. I have seen it happen with others as well. This is another weighty straw that can push a diverse lawyer in the direction of other employment.

The issues I’ve raised here are serious and systemic. But all is not lost. In a column tomorrow, I will look at some ways that large law firms can not only build a diverse work force, but retain it.

Orlando R. Richmond Sr. is a partner at Butler Snow LLP.