Diversity, Inclusion, and Work Allocation – Part 1 of 2

Diversity, Inclusion, & Work Allocation

What is it and why might the legal profession need it?

Attention large law firm partners, talent officers, professional development staff, and diversity professionals! What would you say if there were a way that your firm could increase its profitability and productivity, all the while better training, retaining, and promoting your lawyers, especially those diverse lawyers your clients request? Well, it might just be possible courtesy of a new innovation from our colleagues in the United Kingdom: Work Allocation.

There are any number of reasons why the partnership ranks of large law firms lack representative numbers of lawyers who are diverse. Our understanding of the reasons has become much more sophisticated. But just as we now recognize implicit bias and the need for champions and sponsors, our understanding continues to evolve and grow.

The economic downturn of 2008 shook the legal profession to its core. There were mass layoffs by large law firms unlike anything previously known. Some incoming associates found their offers of employment rescinded with little hope of securing other, comparable employment. And associates and partners alike were struggling to find enough billable work to meet their hours. Moreover,

“Minority attorneys were disproportionately impacted by the downturn in the economy. Approximately 1,300 of the 5,834 attorney layoffs between September 30, 2008, and September 30, 2009, were minority attorneys. Though minority attorneys accounted for only 13.9 percent of attorneys at firms surveyed, they accounted for 22 percent of the layoffs.”[1]

Some firms were candid about the reasons for layoffs. Others adopted euphemisms: “performance-related terminations.” Regardless, decisions were made, and while biases may have played a role, economic calculations also went into the decision-making. When evaluating candidates for layoffs, reasonable minds would likely prefer to retain those who bill more hours and whose work experience is such that they can handle more sophisticated work.

That’s where work allocation and its impact on diversity and inclusion comes into play. In the US, we tend to celebrate capitalism and the notion of a free market. It’s ingrained into American culture. So much so, that we rarely question, much less challenge, it. Therefore, when large firm culture relies upon a system where those partners who generate the firm’s business also select who works on those matters, we see it as a perfectly legitimate way of conducting business. Associates are evaluated not only for the quality and quantity of their work but also their ability to build positive and productive relationships with partners. There’s a logic to it.

But logical as it may be, is it in the best interests of associates, partners, or the firm itself? It can result in some associates getting better training and more sophisticated work than others. It can influence perceptions about the capabilities of associates. It can limit the pool of well-trained, highly experienced associates available to work on matters for other partners. It can make it harder for diverse associates to get the kinds of experience necessary to having a realistic chance of achieving partnership. And it can result in a talent drain as some associates will feel compelled to depart for opportunities that include better training, more challenging work assignments, and greater appreciation of their abilities. Not the best result for a firm that has invested time and resources recruiting and training these young lawyers.

So, a work allocation process that is tailored to assess and monitor the work experience and workload of associates while eliminating bias that might lead to disparities would be ideal. And the London offices of some of the largest firms in the world are trying to do just that: Clifford Chance, HoganLovells, and Reed Smith, to name a few. Mason & Cook, a UK company specializing in work allocation processes, has been working with each to develop custom work allocation processes. They assess and analyze each firm’s culture to design a process for more equitably, economically, and efficiently handling work allocation. And if it results – as it has – in increased firm productivity, profitability, and diversity, who’s to complain?

Certainly, there can be resistance. Culture change is never easy. But here, there are powerful reasons to support the change. Will US firms that embrace work allocation see an increase in the number of diverse associates achieving partnership? There’s no guarantee. But there is every likelihood that those firms will see increased utilization of talent that can lead to better retention of diverse associates who, in turn, will be better positioned to satisfy clients, generate business, and meet fundamental experiential requirements to be eligible for partnership. Conversely, continuing to follow the same “free market” protocols is unlikely to stimulate any change for the better. And you know what they say about doing the same thing over and over but expecting different results.

 [1] “Diversity in the Practice of Law: How Far Have We Come?” by Aviva Cuyler quoting Marci Rubin in American Bar Association Solo, Small Firm and General Practice Division, September 26, 2018 https://www.americanbar.org/groups/gpsolo/publications/gp_solo/2012/september_october/diversity_practice_law_how_far_have_we_come/

By: Sandra Yamate