Clients have become a key driver in achieving law firm diversity, particularly if they insist upon greater representation of Black and Hispanic lawyers among their outside counsel. Scott Burwell, partner at Finnegan, reports.
What can be done to ensure the momentum created by the Black Lives Matter movement delivers long-lasting change? Change requires buy-in and commitment from law firm management, as well as by decision-makers from the companies who are the consumers of legal services. Law firms have touted initiatives to increase diversity for years, and it is a rare firm that does not have an established diversity programme.
But statistics contained in a 2020 report by the American Bar Association showed continued under-representation of minority attorneys in the IP field, particularly with regard to Black IP lawyers. Changes at law firms are often motivated by mandates from clients, so clients can play an important role in driving increased diversity.
The impact of George Floyd's death
A number of companies have started to insist upon demonstrated diversity at the relationship partner and working attorney levels, and failure to meet those levels will result in financial penalties, and potentially loss of business altogether.
Clients can be a key driver in achieving law firm diversity, particularly if they insist upon greater representation of Black and Hispanic lawyers among their outside counsel.
Events that attract widespread media attention, such as the killing of Floyd, serve as a catalyst for action. In the immediate aftermath, law firms often respond by announcing additional diversity initiatives, calling for town halls to discuss diversity issues, and officially recognising dates such as June 19—or Juneteenth—which commemorates the end of slavery of the US.
After the initial shock subsides, however, too often firms return to "business as usual". It will be interesting to see how many law firms observe Juneteenth this month. Firm management, with the support (and mandate) from clients, must ensure that efforts to increase diversity remain at the forefront of the profession even when other stories are at the top of the news cycle.
Increasing diversity cannot occur merely by focusing on the overall number of "minorities" in the IP profession. Different groups have varying degrees of representation, but Black and Hispanic attorneys in the IP field—and particularly the field of patent law—are woefully under-represented in comparison to other minorities. I have litigated patent cases for over 25 years and have had only one case in which another black attorney was opposing counsel. I find that unacceptable.
Curbing the rate of attrition
To achieve truly representative diversity, particular efforts must be made to increase the number of black and Hispanic IP attorneys. Again, client demands can serve as a catalyst for such efforts. There are a number of approaches that firms can take to increase diversity with respect to black and Hispanic attorneys, but perhaps the most important way is to ensure that junior Black and Hispanic attorneys have robust support, mentorship, and opportunities.
The rate of attrition among minority attorneys is disproportionately high, which then results in even greater under-representation of Black and Hispanic attorneys at the senior associate and partner levels of law firms. Junior Black and Hispanic attorneys face a comparative shortage of people who can serve as mentors and role models. It is important that firms pay particular attention to addressing the often systemic problems that lead to disproportionate attrition.
"Changes at law firms are often motivated by mandates from clients, so they can play an important role in driving increased diversity." - Scott Burwell, Finnegan
Target goals are important, but the underlying efforts that are made to meet and surpass those targets should be the primary focus. Success can only be demonstrated when the number of minority IP attorneys align with overall representation of each group in the country.
Given the degree of under-representation, particularly among Black and Hispanic attorneys, that definition of success will take time to reach. In the interim, it is important to focus on progress towards achieving that goal, which can be measured by continued increasing numbers of minority attorneys in the IP field.
To ensure that leaders don't just pay lip service to these goals, law firms must take to heart the importance of achieving diverse representation at all levels of the firm. Again, client demands can play a major role in impressing upon firms the need for such representation.
Law firms can also ensure institutional support for diversity initiatives by devoting adequate budgetary resources to D&I initiatives, by ensuring diverse representation among the firm's management structure, and by taking public stands with respect to diversity issues.
Financial incentives, such as including diversity efforts among the factors considered in the award of compensation or bonuses, can also play an important role in providing incentives for individual attorneys to increase their own D&I efforts.
These approaches will allow firms to lead by example and will assist in establishing an industry-wide culture that recognises the critical importance of a diverse attorney population.
Scott Burwell is a partner at Finnegan in Virginia, US. He can be contacted at scott.burwell@finnegan.com
Finnegan, diversity, BLM, American Bar Association, minorities, patent law, inclusion, mentorship, litigation
Originally published by World Intellectual Property Review 10 June 2021.
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