This activity discusses racial bias in the legal profession and what can be done to eliminate it. Following the activity are tables illustrating some of the material discussed in the main activity.

 

Commentators, including those from the American Bar Association and State Bar Associations have said the legal profession has far to go in the elimination of bias. While they found that some gains have been according to recent studies, overall, the progress of minorities in the legal profession continues at a slow pace.

 

The overall national minority representation in the legal profession remains less than 10 percent, which is considerably less than minority representation in other professions for which data is available.

 

And on top of that, in recent years the initial entry of minorities into the legal profession via the law schools is showing signs of slowing. Minority representation among law students has dropped over a period of several years, and African American representation among law students has fallen to it’s lowest point in twelve-years.

 

In addition, minorities are entering private practice at a lower rate than that of Caucasians, and in addition are less likely to receive judicial clerkships. Minority groups least likely to enter private practice include African Americans and Native Americans.

 

When we look at those law school graduates that do gain entry into private law firms, minorities have a notably higher rate of leaving firms than do white associates. Data indicates that over 50 percent of minority associates are leaving the firms that employed them within their first three years of starting there.

 

In addition and perhaps telling as to the general situation of minorities in the private practice of law, we find they remain conspicuously absent in the upper levels of firms, such as partner and general counsel in the corporate arena.

 

Minorities make up only 4 percent of partners in U.S. law firms and only about 4.3 percent of the large Fortune 1000 legal departments. In addition, minority women are at best rarely found in those capacities.

 

In a study of over 60 law firms located in Chicago performed in 2004, results of the study disclosed that minority women make up less than 1.0 percent of capital partners and only 2.1 percent of income partners. Even more telling, minority women make up only 1.1 percent of Fortune 1000 general counsel.

 

As mentioned supra, law school enrollment of minorities has been declining over the last several years to 20.3% in the 2003-2004 term, down from 20.6% in the 2001-2002 period.

Coupled with this decline in minority law school admissions is a drop in the percentage of African American students. Recent data shows that over the past two years, African American representation among law students has fallen from 7.4 to 6.6 percent, which is now at a 12-year low, while the percentage of Hispanic students has also dropped slightly, contrasted by the fact that the percentage of Asian American students has significantly increased from 6.6 to 7.3 percent of the overall American law school student body make-up.

 

When we examine employment of law clerks both in private firms and judicial clerkships, we find that minorities are less likely than whites to have judicial clerkships after law school. In a 2003 national survey of law school graduates results disclosed that 9.4 percent of minorities had judicial clerkships, compared to 12.3 percent of whites, and even more telling, this disparity has actually been increasing over time. This difference in clerkship rates persists even among graduates of the same law school.

 

Looking at the initial employment by minorities first entering the legal workplace, it can be found that minorities are less likely than whites to start careers in private practice, but more likely to start off in a government or public interest legal position.

 

Of those minorities actually starting out in private practice, Asian Americans are the most likely ethnic group to begin their careers in a private law firm.

 

In 2003, 71.9 percent of Asian American graduates entered private practice or business, compared to 70.2 percent of whites, 68.0 percent of Hispanics, 66.1 percent of Latinos, 60.9 percent of African Americans, and 56.6 percent of Native Americans.

 

Interestingly, Asian Americans are the least likely to begin their careers in government. In 2003, only 10.7 percent of Asian American graduates entered government, compared to 21.7 percent of Native Americans, 19.1 percent of African Americans, 17.2 percent of Latinos, 14.7 percent of Hispanics, and 12.6 percent of whites

 

The single minority group most likely to start off in the public or non-profit sector including in government law departments, public interest, or at a teaching institution are Native Americans. In 2003, 30.1 percent of Native Americans took public sector jobs, compared to 26.6 percent of African Americans, 25.6 percent of Latinos, 22.5 percent of Hispanics, 16.2 percent of whites, and 16.1 percent of Asian Americans.

 

And you may not be surprised to learn that initial legal employment of minority lawyers presents differences in starting pay rates when contrasted to Caucasians, but as alluded to above, Asian Americans are most likely to start their legal careers in private practice, and Asian Americans also have the highest average starting salaries of all graduates at an average of $80,773.

 

On the other hand, Native Americans are the most likely group to start their legal career in the public sector, and their average starting salaries are the lowest at an average of $56,086. The average starting salaries for white, African American and Hispanics are pretty similar, which may be attributed to the similarities in their initial employment patterns.

 

When we examine the distribution of all American lawyers by type of employer, we find this broad number has remained quite stable over the last 4 decades, and we see that about 85% of lawyers work in private law firms or corporate legal departments, while about 15% are employed in public or non-profit practice areas such as government or judicial arenas or public interest law or in education.

 

Because there is no reliable source for nationwide statistics available on the subject, it is more difficult to accurately track the employment distribution of minority lawyers, however there are some data from regional surveys, which show that in California and Texas, minority lawyers are more likely than white lawyers to work in government practice.

 

This is consistent with national data on lawyers' initial employment, which also indicated that they are also less likely than other lawyers to be engaged in private practice or to be partners in law firms. Beyond a small number of regional surveys, however, there is a lack of data concerning the career paths of minority lawyers or even non-minority lawyers in America generally.

 

One of the major issues of minority lawyers that enter private practice in a law firm is their high rate of leaving their associate positions through attrition. While in recent years private firms have been hiring minority associates at an increasing rate, these minority associates are more likely than whites to leave their employment within the first few years of their initial employment.

 

A national survey of 10,376 associates hired between 1988 and 1996 revealed that over half of all minority associates leave their firms within the first three years of practice, and two thirds leave within the first four years. An even higher attrition rate exists for minority women, with 12.1 percent leaving their positions as associates in firms within one year of being hired, and over 85 percent leaving by the seventh year.

 

While it’s open to conjecture, there may be similar biases which may impact on minorities' training and advancement within private law firms. While anecdotal in nature, there is some feeling among them that suggests minority associates face social and professional isolation in law firms and have difficulty gaining access to influential mentors and quality work assignments.

 

According to Harvard law firm diversity expert and law professor David Wilkins, "Work is handed out, for the most part, through existing relationships," and minority associates may often slip through the cracks, thus becoming victims of a subtle air of prejudice regarding their legal ability to perform the required work.

 

As a result, minority associates tend to be less likely to get what other associates would term the “choice assignments”, and may also be limited in their access to the firm’s top echelon clients, and therefore miss opportunities to develop new clients or business that is essential to achieving law firm partnership.

 

The high attrition rates among minority lawyers may be a result of their trying to change firms hoping that their problems are firm-specific, then discovering similar problems at the new firm. A national survey of mid-level associates found that minorities are less satisfied than whites with their treatment by partners and their firms' commitment to diversity.

 

Despite some progress over the past decade, minority lawyers report that there still exists a what has been called a "cultural divide" at most firms. Regardless of the reasons, the final result is that minority associates leave private practice at higher rate than whites before being considered for partner.

 

There are private law firms that have both hired and kept minority associates who eventually achieve partnership status with those firms, however in many cases, it appears that the majority of minority partners seem to be towards the lower echelon of the firm’s partners.

 

Less minority partners hold leadership positions within such firms, i.e., managing partner, department head or membership on the firm’s management committee. In addition, minority partners also tend to be at lower rungs of the firm's compensation plan. A 2004 survey of law firms in Illinois revealed that minorities made up only 3.3 percent of equity partners, and minority women made up less than 1 percent.

 

The President of the Chicago Bar Association, Joy V. Cunningham, says "minorities are still pretty much on the outside looking in at many of these firms. We need more leaders at the top levels to speed up the pace of integration.^"

 

Minority partners in law firms appear to agree, with Samuel Mendenhall, an African American partner at Winston & Strawn saying "The key measuring stick is no longer the number of attorneys of color ... but the position of those numbers".

 

MINORITIES IN THE CORPORATE LEGAL DEPARTMENT:

 

Compared to private law firms, minorities have somewhat higher representation in corporate legal departments, according to a recent survey conducted by the Association of Corporate Counsel in 2001. This survey revealed that 12 ½% of house counsel was minority lawyers, which was up over 3% from their 1998 survey. This compares with 10.1% minorities in the country’s largest private law firms (including both associates and partners) in 2001.

 

On the other hand, the Minority Corporate Counsel Association found by survey that in the Fortune 500, only 5.2% of general counsel consisted of minority lawyers, while minority women comprised only 1.1% of the Fortune 1000 corporations’ general counsel.

 

In addition, the ACC survey disclosed that there were regional differences as regards minority employment in the corporate legal world. Fewest minority corporate counsel were found in both the New England area (less than 1%) and by industry, both the insurance and finance industries had the fewest minority lawyers.

 

MINORITY LAWYERS IN THE GOVERNMENT SECTOR:

 

In the federal service, there are more minority attorneys than both corporate legal departments or private law firms. In the year 2002, 16.9% of the lawyers in the executive branch were minorities, and just under 10% of the federal Administrative Law Judges were minorities.

 

A recent study of Justice Department conducted by KPMG Consulting found significant racial and gender disparities in Justice’s advancement and compensation, most notably in senior positions.

The study illustrates that although minorities comprised 15% of the Justice Department's attorneys, minority lawyers comprised only 7% of senior executive service (SES) positions. On top of that, Caucasians were twice as likely as minorities to hold SES positions, and of them, white men were more than three times as likely as minority women to hold such SES positions.

 

In addition, as we saw in private law practice, this study also found that minorities were less satisfied with their working environment than whites, and that the attrition rate for minority lawyers was nearly 50 percent higher than for whites.

 

In state and local government practice, it appears that minority employment varies by both geographic area and the particular type of legal department within that entity. A recent 2004 survey in the Chicago area revealed that in the Illinois Attorney General's office, 12.5% of the lawyers were minorities, while 15.6% of the Cook County State's Attorney's office attorneys were minorities.

 

In New York, minorities made up over 12% of the Attorney General’s legal staff, but contrast that to a 1999 survey where in the 3 local San Francisco, California government offices examined, the minority attorney staff was just under 40%.

 

MINORITIES IN THE JUDICIARY:

 

In the federal arena, 18.6% of federal judges are minorities, compared to a study that found that of all American judges, minorities comprised 15.9%.

 

Of these minorities in the judiciary, no Native American federal judges were discovered; it was learned that 6.9% are Hispanics, and that African Americans comprised the largest group of minority judicial officers, at 10.9% among the federal judiciary.

 

Data to determine minority composition of state and local judicial officers is more difficult to come by, and cannot be reported accurately. in the 2000 U.S. Census . Various reports place minority representation among judges at 12 percent in New Jersey, 12.2 percent in New York, and 13.7 percent in Illinois, but such reports are not always clear about what types of judges are being counted.

 

Most states have resisted merit selection on public accountability grounds, and some minority bar associations express concerns regarding moving away from election of judges. Without state-specific data on minority representation among judges, however, it remains difficult at best to assess the effects on diversity of appointive versus elective systems.

 

What is clear is that judicial diversity affects both lawyers' and participants' perceptions of judicial fairness. A 2003 survey by the National Center for State Courts found that white respondents tend to believe that unequal treatment in the courts is infrequent, whereas African American and Latino respondents tend to believe that it occurs frequently; and that African Americans are twice as likely as other groups to believe that court outcomes are "seldom or never fair."

 

These findings are consistent with numerous other studies that find that women and minorities are more likely than white men to believe that bias is common in the courts. Such perceptions are driven in part by the lack of gender and racial diversity among judges in many jurisdictions. Lawrence Baca, an American Indian and chair of the ABA Commission on Racial and Ethnic Diversity in the Profession, reports that he has been before a minority judge only once in his 27-year career at the Department of Justice. Says Baca, "I assume that I will retire from practice without ever once appearing before a judge of my own race."

 

As of 2004, minorities made up roughly 10 percent of all lawyers (9.7 percent in 2000 and roughly 20 percent of all law students, which are the same figures reported four years ago in a study published by the American Bar Association in 2000.

 

Interestingly, minority representation among lawyers is significantly lower than minority representation in the civilian labor force and in most other professions, including accounting, engineering, and medicine.

 

Minority representation among lawyers is lowest in the private sector, especially in upper-level jobs such as law firm partner and corporate general counsel. Minorities are less likely than whites to enter law firms upon graduation, and more likely to leave once they get there. Roughly a third of all minority associates leave their firms within the first two years of practice.

 

Nationally, minorities make up 9.7 percent of all lawyers in law firms, including both  associates and partners, but only 4.0 percent of partners. Since 1999, minority representation among partners has increased only 0.7 percent.

 

Minority representation in corporate law departments appears to be slightly higher than in law firms, although the data are limited. A 2001 survey places overall minority representation among corporate counsel at 12.5 percent, with significant variation by region and industry.

 

Minority representation among corporate counsel is lower in upper-level positions, such as general counsel and deputy general counsel. As of 2004, there were only 43 minority General Counsel in the Fortune 1000 (4.3 percent), and only 11 minority women (1.1 percent).

 

Minority representation among lawyers is highest in the public and the non-profit sectors. Minorities make up 16.9 percent of General Attorneys, 18.6 percent of federal judges, and 27.4 percent of junior law faculty.

 

As in the private sector, minority representation is lower in upper-level jobs. Nevertheless, minority representation in upper-level jobs in the public sector, such as Administrative Law Judge (9.9 percent), Patent Attorney (8.9 percent), federal appellate judge (15.9 percent), and full law professor (12.0 percent), is substantially higher than minority representation among law partners (4.0 percent) or Fortune 1000 General Counsel (4.3 percent).

 

Nationally, African Americans are the best-represented minority group among lawyers (3.9 percent), followed closely by Hispanics (3.3 percent). African Americans also are the best represented minority group in most employment settings, where African Americans make up 35.9 percent of minority partners in the nation's largest law firms; 51.5 percent of minority General Attorneys; 58.4 percent of minority federal judges; and 49.2 percent of minority law faculty (deans, professors, associate professors and assistant professors combined). Of the 43 minority general counsel in the Fortune 1000, 31 are African American.

 

On the other hand, we find that the rate of African Americans entering the legal profession has slowed in recent years, and presently remains slower than that of Hispanics and Asian Americans. Between 1990 and 2000, the total number of African American lawyers increased by only 31.9 percent, compared to a 53.8 percent increase in the number of Hispanic lawyers and an 88.1 percent increase in the number of Asian American lawyers.

 

At the law school level, African American representation among minority law students has been dropping, and went from 42.9 percent in 1990-91 to 32.6 percent in 2003-04, and African American representation among minority law firm associates, which was over 40 percent in 1991, tallied less than 30 percent in 2003.

 

The fastest growing minority group in the legal profession is Asian Americans. The number of Asian American lawyers nearly doubled between 1990 and 2000, and the number of Asian American female lawyers increased by over 134%. The number of Asian Americans enrolled in law school likewise has increased significantly, as has Asian American representation among minority law students.

 

In 2003-04, Asian Americans made up 35.8 percent of minority law students, up from 24.8 percent in 1990-91 . Nearly half of all minority associates in the nation's largest law firms are Asian American (48.6 percent), as are nearly a third of minority partners (31.3 percent).

 

Asian Americans nevertheless remain substantially underrepresented in certain employment settings; for example, Asian Americans make up less than 1% percent of federal judges, and only 11 percent of all minority judges. Likewise, Asian Americans comprise only 1.8 percent of senior faculty, and only 14.5 percent of all minority law faculty.

 

OBSTACLES TO EQUAL PARTICIPATION BY MINORITIES:

 

Looking back over the last fifty years, it seems that minority lawyers are doing significantly better. Until 1950, most Southern law schools maintained a policy which excluded African Americans and worked to exclude other people of color as well.

 

Even the august American Bar Association did not allow African Americans as members till 1943. While African Americans made up 10.5 percent of the population in 1950, but less than 1% of all lawyers.

 

While accurate data on the representation of other ethnic groups in the legal profession did not exist till about the late 1960s, it is safe to surmise that those numbers were small or less at best.

 

In 1968, there were fewer than 25 American Indian lawyers in the entire USA, and less than 0.006 percent of American law students were "Spanish American."

 

Even looking back 25 years, it seems at first blush that the progress of minorities in the legal profession appears well. While there were increases in minority entry into the legal profession in the late 1960s and 1970s, total minority law school enrollment in 1979-80 was only 8.5 percent, and minorities continued to be excluded from most majority law firms.

 

In 1983, over 66% of the largest U.S. law firms had no black partners; more than 75 percent had no Hispanic partners; and many had no black or Hispanic lawyers at all. As late as 1987, over one third of the nation's 250 largest law firms had no Asian American or Hispanic lawyers. Such figures make current statistics of 20.3 percent of law students, 14.6 percent of associates, and 4.0 percent of partners seem exceptionally high in comparison.

 

Nevertheless, there remains much room for improvement. Compared to ten years ago, there has been little progress in the racial integration of the profession. Although nationally minority representation has increased slightly since 1990, and minority lawyers have made incremental gains in most employment settings, the pace of integration has slowed considerably since the 1980s and early 1990s.

 

Total minority enrollment in law school hit 20 percent in the mid-1990s and has hovered at 20 percent ever since. Native American enrollment is stagnant and African American enrollment has dropped . And minorities continue to be grossly underrepresented in top legal jobs.

 

Moreover, the legal profession is significantly less racially integrated than other, comparable professions . Accountants, engineers, architects, doctors: despite their similar histories of racial discrimination and exclusion, all of these groups currently have higher minority representation than lawyers. Minority representation among physicians and surgeons is 25 percent – about the same as minority representation in the civil labor force generally . Yet minority representation among lawyers remains less than 10 percent.

 

OBSTACLES TO ENTRY OF MINORITIES INTO THE LEGAL PROFESSION

 

One obvious answer is the persistence of obstacles to law school admission. While the US Supreme Court struck down formal racial barriers to law school admission in 1950, it was not until the late 1960s that African Americans and other minorities began to enter American law schools in anything other than token numbers. Since then, minority law school enrollment has grown slowly and appears to have reached a ceiling. Between 1979-80 and 1995-96, when the rate of minority entry was at its peak, total minority law school enrollment grew from 8.5 to 19.6 percent – a rate of only 0.7 percent per year.

Research plays a critical role in promoting the progress of minorities in the profession, and increases both awareness of the obstacles that confront minority lawyers and accountability by individual and institutional leaders.

 

But this research requires data. For example, tracking law school admissions of minorities depends on the annual data collected by the ABA Section of Legal Education. Monitoring the progress of law firms also depends on annual surveys conducted by the National Association of Law Placement and various other groups.

 

While the legal profession is good, even great at research,  there still remain many gaps when it comes to tracking minorities in the legal profession. There are no recent national data on the distribution of lawyers, which makes it impossible to determine whether or how much historic race and gender differences are diminishing.

 

There also are no reliable data on the minority make up of corporate law departments or other employment of minorities outside the law firms. Therefore we cannot track minority progress in state or local government offices, in the state judiciary, or even in the faculty at law schools. In addition, much of the data that does exist doesn’t allow for in-depth measurement of the progress of specific groups.

 

Though minority lawyers from different groups face common obstacles, some of which are also faced by Caucasian attorneys, they also face group and gender-specific obstacles. On the other hand, there are those that feel that racial categorization is at best a controversial process and also that there are sound reasons to question the integrity and political value of racial categories and labels. On the other hand, for research purposes, it is that which cannot be measured can’t be analyzed.

 

Finally, looking to the law schools as the entry point to the legal profession, perhaps they should increase their commitment to research in these areas, and focus on the careers of their own graduates

 

WHAT LAW FIRMS & LEGAL EMPLOYERS CAN DO:

 

There is no shortage of advice for employers who want to promote diversity. Indeed, diversity consulting and the publication of "best practices" lists has become a cottage industry. Yet the term "best practices" is somewhat misleading as applied to diversity issues. Though some employers do better than others, very few can claim to have solved the "problem" of diversity.

 

In addition, while there may be many approaches worth trying, increasing and maintaining diversity in the workplace is not simply a cook book approach of following a recipe and waiting for specific results. Instead it is an ongoing process that requires an ongoing commitment to.

 

As long as managing partners as a group often remain challenged by creating and maintaining diversity, those more committed feel it’s that commitment that makes the difference.. Many firms just have not committed to analyzing and addressing diversity problems the way they do other business challenges.

 

Many consultants in this area are in agreement that the principle key to progress is a visible and sustained commitment by a law firm’s leaders. Some suggest that a firm's diversity concerns should be spelled out in its business plan.

 

One diversity consultant advises that as applies to the firm’s success in these areas, that a firm is more likely to be successful if the leadership says having and retaining a diverse work force is part of the firm's long-term business plan.

 

According to the Minority Corporate Counsel Association (MCCA), making the business case for diversity helps insure that senior partners buy into the firm's goals. And in addition, it makes sense for law firms to be certain that their spokespersons for the firm’s diversity efforts are individuals that have actual authority within the firm. The MCCA emphasizes the importance of "designating a senior partner to lead" diversity efforts and avoiding "diversity committees staffed primarily by women and minorities."

 

Some point out that law firms should avoid appointing either a non-partner or non-lawyer as their diversity spokesperson, then delegating all diversity-related responsibilities to that person. They point out that “diversity” is not a personnel function, but rather a commitment and a management function. Therefore, they conclude that those in charge of a firm's diversity efforts should be the same people that are in charge of the firm itself.

 

Many lawyers remain skeptical about law firms' true commitment to improving diversity, and many see diversity initiatives as disguised public relations efforts.

 

A 2000 survey of minority law students by San Francisco's Thelen Reid law firm asked students to rank four possible motives for law firms' diversity programs. Interestingly results disclosed the students felt the primary goal of such programs was a law firm’s fear of looking unfriendly toward minorities, and the desire for equity and a level playing field" as the least likely motive.

 

One effective way for a law firm to demonstrate a sincere commitment to diversity is by publicly monitor the firm’s progress, and by making the firm managing partners responsible for the results of their diversity program. Some ways to accomplish this goal include making public diversity pledges, then periodically reporting their progress in these efforts.

 

Some bar leaders feel that making diversity pledges will help keep a law firm committed to those efforts, because publicly announcing that a firm has goals and intends to achieve it’s diversity goals has the effect of enhancing the efforts to meet those goals. In addition, it gives the firm a tool to measure it’s progress.

 

Bar groups in a number of cities have begun issuing diversity "report cards" for law firms, and in some instances, corporate clients have been inquiring for firms’ diversity numbers.

 

Other ways firms can enhance their diversity efforts include financial incentives to firm attorneys who actively recruit and mentor lawyers of color, as well as requiring partners to demonstrate what they have done to increase the firm’s diversity.

 

The St. Louis firm Bryan Cave recently adopted a similar policy, and reports it seems to be working, pointing out that in 1997, only 19 of their 499 lawyers were minorities, while in 2002, that number had increased to 53.

 

 

WHAT LAWYERS CAN DO AS INDIVIDUALS

 

Individual lawyers have many opportunities to promote diversity in the legal profession. Regardless of whether they are minorities themselves, individual lawyers can mentor minority law students and lawyers, and can join and support minority bar associations. In addition, they can initiate and support diversity programs at their place of employment.

 

Attorneys with high perceived status in the profession, such as judges, corporate counsel, senior and managing firm partners, bar association officers and so forth, have additional opportunities to promote the participation of minorities. They can utilize their own personal commitment to the elimination of bias, and also encourage participation by others towards diversity efforts.

 

Minority lawyers and law students can also foster these goals by participation in both main-stream and minority bar associations. Many minority attorneys have learned to take advantage of what bar associations can offer. Regarding bar association involvement, W. Muzette Hill, the Strategic Counsel for Ford Motor Company, says:

 

“I consider my ABA involvement an investment in myself, and it has paid off in many ways. For me, serving on committees, writing articles and speaking on panels was a tremendous way to showcase my talents, strengths and abilities as a lawyer to other lawyers, especially' in-house and general counsel, some of whom eventually became my clients...”

 

Active participation in bar association activities can propel minority lawyers to positions of leadership within the organized bar. For the first time in history in 2004, both the ABA and the ACC were led by lawyers of color. This minority leadership represents a strong signal to both lawyers and law students that the promise of equal minority participation in the legal profession can be a reality.