Recognizing and Eliminating Bias in the Legal Profession January 10, 2012 Bias? What Bias?

Recognizing and Eliminating Bias in the Legal Recognizing and Eliminating Bias in the Legal ProfessionProfession

January 10, 2012January 10, 2012

Bias? What Bias?Bias? What Bias?

Michele Ballard MillerMichele Ballard Miller

PresentersPresenters

Miller Law Group111 Sutter Street, Suite 700San Francisco, CA 94104(415) 464 - 4300 [email protected]

DeborahDeborah Broyles BroylesReed Smith LLP101 Second StreetSan Francisco, CA 94105(415) 659 – [email protected] www.reedsmith.com

Michael FosterMichael FosterFoster Employment Law3000 Lakeshore AvenueOakland, CA 94610(510) 763 - 1900 [email protected]

om www.fosteremploymentlaw.com

Tiffany ThomasTiffany Thomas Reed Smith LLP101 Second StreetSan Francisco, CA 94105(415) 659 - [email protected] www.reedsmith.com

OverviewOverview

State Bar Requirements for Elimination of State Bar Requirements for Elimination of Bias CreditBias Credit

Problems that attorneys encounter in the legal Problems that attorneys encounter in the legal professionprofession

Activities that assist in the recognition, Activities that assist in the recognition, identification, and prevention of bias in a legal identification, and prevention of bias in a legal settingsetting

Overview (cont.)Overview (cont.)

This presentation will:This presentation will: Review diversity statistics and trends in the Review diversity statistics and trends in the

legal professionlegal profession Explore stereotypes and implicit or Explore stereotypes and implicit or

subconscious biases that are commonly held, subconscious biases that are commonly held, particularly in contexts common to the legal particularly in contexts common to the legal professionprofession

Discuss ways to address bias and support Discuss ways to address bias and support diversity in the legal professiondiversity in the legal profession

Diversity StatsDiversity Stats

State Bar of CaliforniaCouncil on Access & Fairness

California State Bar Diversity

Categories 2001 Survey

2006 Survey

2010 CACensus

Active Bar Members 148,000 154,500

Race/Ethnic Minorities

African American 2.4% 1.7% 6.2%

Latino/Hispanic 3.7% 3.8% 37.6%

Asian/Pacific Is. 6.0% 5.3% 13.4%

Other/Mixed 4.9% 4.8% 2.7%

Total Minorities 17.0% 15.6% 59.9%

Women 32.0% 34.0% 50.7%

LGBT 2.4% 5.2% 3.2%

Disabilities 4.0% No data 10.0%

State Bar of CaliforniaCouncil on Access & FairnessAttorney Demographics in the

Private Sector vs. Population Figures

LAW FIRM PARTNERS (LAW FIRM PARTNERS (from NALP 2006 datafrom NALP 2006 data))

MinorityMinority African African AmericanAmerican

Asian Asian Pacific Pacific

IslanderIslander

Hispanic/ Hispanic/ LatinoLatino

CaliforniaCalifornia 4.04%4.04% 1.38%1.38% 1.31%1.31% 1.2%1.2%

LAW FIRM ASSOCIATES (LAW FIRM ASSOCIATES (from NALP 2006 data)from NALP 2006 data)



IslanderIslander


CaliforniaCalifornia 14.63%14.63% 4.07%4.07% 7.01%7.01% 2.96%2.96%



IslanderIslander


2010 2010 Statewide Statewide PopulationPopulation

59.9%59.9% 6.2%6.2% 13.4%13.4% 37.6%37.6%

The Stats Broken DownThe Stats Broken Down

Source: National Association of Legal Professionals (NALP) Directory of Legal Employers Diversity & Demographics 2011

450.342.020.110.903.3711.244.0414.61890San Jose area

520.872.750.471.882.556.234.0211.791,493San Francisco

220.763.310.000.000.763.821.788.91393San Diego

280.843.850.000.332.176.353.1811.20598Orange Co., CA

770.983.460.531.991.995.853.6812.192,256Los Angeles area

Offices in:

1,3490.481.920.581.710.822.362.046.5656,599Total

% Women

Total %%

WomenTotal %

% Women

Total %

% Minorit

y Women

% Minorit

yTotal #

HISPANICBLACK/AFRICAN-

AMERICANASIAN # of

Offices

PARTNERS BY RACE OR ETHNICITYALL PARTNERS

Source: NALP Directory of Legal Employers Diversity and Demographics

MINORITY PARTNERS

451.964.270.771.6813.4427.3617.5636.321,429San Jose area

522.494.381.482.3110.3017.4115.7526.761,689San Francisco

221.143.201.141.144.5810.078.2418.54437San Diego

282.234.900.300.896.5315.4310.2424.04674Orange Co., CA

772.445.771.612.6610.1217.4015.9428.912,667Los Angeles area

Offices in:

1,3491.923.832.614.295.319.6510.9619.9052,786Total

% Women

Total %%

WomenTotal %

% Women

Total %

% Minorit

y Women

% Minorit

yTotal #

HISPANICBLACK/AFRICAN-

AMERICANASIAN # of

Offices

ASSOCIATES BY RACE OR ETHNICITYALL ASSOCIATES


MINORITY ASSOCIATES

51.12.246.782.24.413.353.333.313.3San Jose area

67.31.930.867.311.521.276.919.23.8San Francisco

27.30.072.754.59.136.450.036.413.6San Diego

32.13.664.378.67.114.328.642.928.6Orange Co., CA

51.93.944.279.210.410.444.249.46.5Los Angeles area

Offices in:

33.110.256.742.628.628.847.044.09.0Total

More than 2%

Up to 2%

NoneMore

than 6%Up to 6%

NoneMore than 19%

Up to 19%

None

MINORITY WOMENMINORITIESWOMEN


WOMEN & MINORITY PARTNERS

WOMENWOMEN MINORITIESMINORITIES MINORITY WOMENMINORITY WOMEN

Less Less than than 45%45%

45-50%45-50%More More than than 50%50%

NoneNone Up to Up to 19%19%

More More than than 19%19%

NoneNone Up to Up to 11%11%

More More than than 11%11%

TotalTotal 47.647.6 21.321.3 31.131.1 17.217.2 39.739.7 43.243.2 27.527.5 34.734.7 37.837.8

Offices in:Offices in:

Los Los Angeles Angeles areaarea

31.231.2 23.423.4 45.545.5 3.93.9 20.820.8 75.375.3 7.87.8 19.519.5 72.772.7

Orange Orange Co., CACo., CA 53.653.6 35.735.7 10.710.7 3.63.6 25.025.0 71.471.4 21.421.4 39.339.3 39.339.3

San San DiegoDiego 54.554.5 22.722.7 22.722.7 27.327.3 31.831.8 40.940.9 45.545.5 31.831.8 22.722.7

San San FranciscoFrancisco 28.828.8 15.415.4 55.855.8 5.85.8 23.123.1 71.271.2 11.511.5 25.025.0 63.563.5

San Jose San Jose areaarea 66.766.7 11.111.1 22.222.2 6.76.7 4.44.4 88.988.9 13.313.3 17.817.8 68.968.9

Source: NALP Directory of Legal Employers Diversity and DemographicsSource: NALP Directory of Legal Employers Diversity and Demographics

WOMEN & MINORITY ASSOCIATES

ALL FIRMSALL FIRMSFIRMS OF 250 FIRMS OF 250

OR FEWER OR FEWER LAWYERSLAWYERS

FIRMS OF 251-FIRMS OF 251-500 LAWYERS500 LAWYERS

FIRMS OF 501-FIRMS OF 501-700 LAWYERS700 LAWYERS

FIRMS OF 701+ FIRMS OF 701+ LAWYERSLAWYERS

# # ReportReport

eded

% of % of TotalTotal

# # ReportReport

eded


# # ReportReport

eded


# # ReportReport

eded


# # ReportReport

eded


PartnersPartners 109109 0.23%0.23% 3636 0.19%0.19% 2121 0.22%0.22% 2323 0.36%0.36% 2929 0.24%0.24%

AssociatAssociateses 6868 0.170.17 1111 0.100.10 2121 0.270.27 88 0.130.13 2828 0.170.17

All All lawyerslawyers 219219 0.220.22 6161 0.180.18 5353 0.270.27 3838 0.260.26 6767 0.210.21

DISABLED ATTORNEYS

The Trend in the StatsThe Trend in the Stats

The National Association of Women Lawyers (NAWL) and The NAWL The National Association of Women Lawyers (NAWL) and The NAWL Foundation recently released the 2011 (sixth annual) National Survey Foundation recently released the 2011 (sixth annual) National Survey on the Retention and Promotion of Women in Law Firms.on the Retention and Promotion of Women in Law Firms.

Women represent a decreasing percentage of lawyers in big firms and Women represent a decreasing percentage of lawyers in big firms and have a far greater chance of occupying positions -- like staff attorneys, have a far greater chance of occupying positions -- like staff attorneys, counsel, and fixed-income equity partners -- with diminished counsel, and fixed-income equity partners -- with diminished opportunity for advancement or participating in firm leadership. opportunity for advancement or participating in firm leadership.

Women have a much lower rate than men in promotion to equity Women have a much lower rate than men in promotion to equity partnership, accounting for about 15% of equity partners -- a figure partnership, accounting for about 15% of equity partners -- a figure that has remained unchanged for almost 20 years. that has remained unchanged for almost 20 years.

Women lawyers are more likely to occupy positions that are not on the Women lawyers are more likely to occupy positions that are not on the partnership track, and have low representation in firm leadership.partnership track, and have low representation in firm leadership.

Compensation decisions at firms tend to disfavor women.Compensation decisions at firms tend to disfavor women.

The NALP recently reported that:The NALP recently reported that: Minorities now make up 12.70% of lawyers reported in the Minorities now make up 12.70% of lawyers reported in the

NALP Directory of Legal Employers, compared with 12.40% NALP Directory of Legal Employers, compared with 12.40% in 2010. in 2010.

Minority women now account for just over 6% of lawyers at Minority women now account for just over 6% of lawyers at these firms -- 6.23% in 2011, comparable to the 6.20% these firms -- 6.23% in 2011, comparable to the 6.20% figure for 2010, and lower than the 6.33% figure for 2009.figure for 2010, and lower than the 6.33% figure for 2009.

The total change since 1993 (when NALP began tracking the The total change since 1993 (when NALP began tracking the statistics) for women and minorities in firms has been statistics) for women and minorities in firms has been marginal:marginal: In 1993, minorities accounted for 2.55% of partners, and In 1993, minorities accounted for 2.55% of partners, and

women accounted for 12.27% of partners -- in 2011 those women accounted for 12.27% of partners -- in 2011 those figures were 6.56% and 19.54% respectively. figures were 6.56% and 19.54% respectively.

Among associates, the percentage of women increased from Among associates, the percentage of women increased from 38.99% in 1993 to 45.35% in 2011, and minority 38.99% in 1993 to 45.35% in 2011, and minority percentages increased from 8.36% to 19.90%.percentages increased from 8.36% to 19.90%.

NALP further reports:NALP further reports:

Minority women are the most underrepresented Minority women are the most underrepresented group at the partnership level, a pattern that holds group at the partnership level, a pattern that holds across all firm sizes and most jurisdictions. across all firm sizes and most jurisdictions.

Minority women now make up 2.04% of the partners Minority women now make up 2.04% of the partners in major law firms. The representation of minority in major law firms. The representation of minority women partners is only a bit higher, 2.47%, at the women partners is only a bit higher, 2.47%, at the largest firms of more than 700 lawyers. Minority largest firms of more than 700 lawyers. Minority men accounted for 4.52% of partners in 2011, up men accounted for 4.52% of partners in 2011, up from 4.21% in 2010. from 4.21% in 2010.

Minority women account for 10.96% of associates, Minority women account for 10.96% of associates, below the 11.02% figure reached in 2009.below the 11.02% figure reached in 2009.

Corporate Legal DepartmentsCorporate Legal Departments

The Association of Corporate Counsel (ACC) The Association of Corporate Counsel (ACC) reported that the percentage of minority in-reported that the percentage of minority in-house counsel was 4% in 1993, 10% in 2000, house counsel was 4% in 1993, 10% in 2000, 12.5% in 2001, and 16.5% in 2009.12.5% in 2001, and 16.5% in 2009.

Is There Bias?Is There Bias?

Key PointsKey Points

Everyone has biases, many of which Everyone has biases, many of which are implicit – that is, attitudes, are implicit – that is, attitudes, memories, and stereotypes that are memories, and stereotypes that are outside of “conscious, attentional outside of “conscious, attentional control.”control.”

Biases affect everyday interactionsBiases affect everyday interactions

Impact of Bias in the Impact of Bias in the WorkplaceWorkplace

According to the ABA, bias – According to the ABA, bias – Discounts abilities ORDiscounts abilities OR Provides opportunitiesProvides opportunities Based (often unknowingly) on someBased (often unknowingly) on some characteristics or traits linked to gender,characteristics or traits linked to gender, race, sexual orientation or gender race, sexual orientation or gender

identity,identity, and disabilityand disability

Common StereotypesCommon Stereotypes

African AmericansAfrican Americans Not Good WritersNot Good Writers Affirmative Action BeneficiariesAffirmative Action Beneficiaries Angry/DefensiveAngry/Defensive

AsiansAsians Technically OrientedTechnically Oriented Team PlayersTeam Players Obedient/Rule AbidingObedient/Rule Abiding

Common Stereotypes Common Stereotypes (cont.)(cont.)

Latino/HispanicsLatino/Hispanics All Spanish SpeakersAll Spanish Speakers Homogenous CultureHomogenous Culture Public Interest/Immigration LawPublic Interest/Immigration Law

WomenWomen Part-time LawyersPart-time Lawyers EmotionalEmotional Act Like MenAct Like Men

Where’s the Bias?

Scenario #1: The InterviewScenario #1: The Interview

Patricia, a recent law school graduate, was Patricia, a recent law school graduate, was interviewed for a legal staff position at XYZ interviewed for a legal staff position at XYZ Company. The VP of Legal Affairs noticed Company. The VP of Legal Affairs noticed Patricia’s wedding ring and asked, “How many Patricia’s wedding ring and asked, “How many kids do you have?” Patricia said she had no kids do you have?” Patricia said she had no children but she planned to once she and her children but she planned to once she and her husband had gotten their careers underway. husband had gotten their careers underway.

The VP explained that the work would be The VP explained that the work would be demanding, and asked how she would balance demanding, and asked how she would balance work and childcare responsibilities when the work and childcare responsibilities when the need arose. Patricia explained that she would need arose. Patricia explained that she would share responsibilities with her husband. share responsibilities with her husband.

Later that day, the VP remarked to his secretary Later that day, the VP remarked to his secretary that he wasn’t sure that being a mother was that he wasn’t sure that being a mother was compatible with a fast-paced business compatible with a fast-paced business environment.environment.

Scenario #2: The LayoffScenario #2: The Layoff

Due to the bad economy, Widget Co. is laying off. Bob, the Legal Due to the bad economy, Widget Co. is laying off. Bob, the Legal Dept. Director, has to lay off 1 of his 4 employment lawyers.Dept. Director, has to lay off 1 of his 4 employment lawyers.

Jack – Jack – Most senior.Most senior. Last year investigated for an incident Last year investigated for an incident involving a single bad joke. Rumored to engage in ongoing involving a single bad joke. Rumored to engage in ongoing insensitive behavior.insensitive behavior.

Jeremy – Jeremy – 10 years with company 10 years with company and universally liked by and universally liked by internal male clients. But female outside counsel complained internal male clients. But female outside counsel complained that he is hostile towards her and too aggressive in litigation. that he is hostile towards her and too aggressive in litigation.

Mark Mark – – 2 years tenure. Great start, but lately missing deadlines 2 years tenure. Great start, but lately missing deadlines due to recent singles lifestyle that he does not want to give up.due to recent singles lifestyle that he does not want to give up.

Sheila – Sheila – Hired 3 months after Mark. Good results on litigation. Hired 3 months after Mark. Good results on litigation. Effective trainer. However, HR thinks she recommends more Effective trainer. However, HR thinks she recommends more lenient discipline for African Americans and a manager lenient discipline for African Americans and a manager complained she got too emotional during a termination meeting complained she got too emotional during a termination meeting with an employee.with an employee.

Bob terminates SheilaBob terminates Sheila

The Statistics: Terminations & The Statistics: Terminations & WomenWomen

The pipeline of women lawyers is diminishing, The pipeline of women lawyers is diminishing, as it appears that the percentage of women as it appears that the percentage of women entering law schools has peaked. entering law schools has peaked.

Women constitute only 47% of the current crop Women constitute only 47% of the current crop of first- and second-year associates, down from of first- and second-year associates, down from 48% in recent years -- and a decreasing number 48% in recent years -- and a decreasing number of entry level women lawyers only decreases of entry level women lawyers only decreases the pool of women left at the end of the the pool of women left at the end of the pipeline who are qualified and available for pipeline who are qualified and available for promotion to higher-level firm positions.promotion to higher-level firm positions.

The Statistics: Terminations & The Statistics: Terminations & MinoritiesMinorities

Similarly, minority attorneys were Similarly, minority attorneys were disproportionately impacted by downturn in the disproportionately impacted by downturn in the economy. Approximately 1,300 of the 5,834 economy. Approximately 1,300 of the 5,834 attorney layoffs between Sept. 30, 2008, and attorney layoffs between Sept. 30, 2008, and Sept. 30, 2009, were minority attorneys. They Sept. 30, 2009, were minority attorneys. They accounted for 22% of the layoffs but only 13.9% accounted for 22% of the layoffs but only 13.9% of the attorneys in these firms. of the attorneys in these firms.

The percentage of African American attorneys The percentage of African American attorneys dropped by 13% (462); Asian Americans dropped dropped by 13% (462); Asian Americans dropped by 9% (556); and Hispanics also dropped by 9% by 9% (556); and Hispanics also dropped by 9% (282).(282).

Scenario #3: The Scenario #3: The PromotionPromotion

Partner John Doe is a rainmaker in the Corporate Group Partner John Doe is a rainmaker in the Corporate Group who regularly handles large deals for Fortune 100 clients. who regularly handles large deals for Fortune 100 clients. Doe is working with Junior Partner and 3 associates on a Doe is working with Junior Partner and 3 associates on a deal for Big Co. The associates are:deal for Big Co. The associates are: Tom, a Caucasian associate with 6 years of deal Tom, a Caucasian associate with 6 years of deal

experience with a competitor. This is Doe’s second deal experience with a competitor. This is Doe’s second deal with Tom, who will be accompanying Doe at the client with Tom, who will be accompanying Doe at the client strategy meetings. strategy meetings.

Sharon, an African American associate, started 9 years Sharon, an African American associate, started 9 years ago as a summer associate. Doe relies on her to ago as a summer associate. Doe relies on her to perform whatever tasks Junior Partner needs and to perform whatever tasks Junior Partner needs and to supervise the legal assistants. supervise the legal assistants.

Sam, an Asian associate and law school classmate of Sam, an Asian associate and law school classmate of Tom’s, is relied upon by Doe to proofread and execute Tom’s, is relied upon by Doe to proofread and execute the final deal documents.the final deal documents.

Shortly after the successful close of the Big Co. deal, year-Shortly after the successful close of the Big Co. deal, year-end associate evaluations and partner recommendations end associate evaluations and partner recommendations were due. Tom, Sharon, and Sam were all eligible for were due. Tom, Sharon, and Sam were all eligible for recommendation to partnership. recommendation to partnership.

Partner A gave all three associates positive ratings, but Partner A gave all three associates positive ratings, but only recommended Tom for partnership.only recommended Tom for partnership.

Scenario #4: The JudgeScenario #4: The Judge

One of Melanie Smith’s longtime, corporate clients was One of Melanie Smith’s longtime, corporate clients was sued for breach of contract by a vendor whose services sued for breach of contract by a vendor whose services the client recently discontinued. The case was assigned the client recently discontinued. The case was assigned to Judge Lillian Herrera. to Judge Lillian Herrera.

Herrera’s rulings in business disputes seem to follow Herrera’s rulings in business disputes seem to follow the law, be well reasoned, and evenly distributed the law, be well reasoned, and evenly distributed plaintiffs and defendants.plaintiffs and defendants.

Prior to taking the bench 10 years ago, Herrera was Prior to taking the bench 10 years ago, Herrera was active with Hispanic and other minority bar associations active with Hispanic and other minority bar associations and liberal organizations, such as the ACLU. and liberal organizations, such as the ACLU.

Herrera had a recent newsworthy ruling in favor of farm Herrera had a recent newsworthy ruling in favor of farm workers who alleged they were being deprived of workers who alleged they were being deprived of adequate meal and rest breaks.adequate meal and rest breaks.

Smith strongly recommends nixing Judge Herrera.Smith strongly recommends nixing Judge Herrera.

Diversity in the California Courts

40.1

%

6.2% 13

.1%

37.6

%

72.3

%

5.6%

5.6% 8.2%

0%

10%

20%

30%

40%

50%

60%

70%

80%

White African American Asian Pacific Islander Latino

Population Compared to Judiciary Statewide1,699 Sitting Judges on December 31, 2010

Population 2010 JC Report 12/10

Data Sources: Judicial Council’s 2006 and 2010 annual SB56 reports and the 2000 and 2010 Census reports.



Caucasian African AmericanAsian Pacific IslanderHispanic/LatinoNative AmericanOther Mixed RaceNo Info1200 84 85 122 5 15 60 60

1229

59

60

139 6 15 95 96

California Courts Total

Caucasian No info Mixed Race

Hispanic/Latino Native American Other

African American Asian Pacific Islander

Ethnic Diversity – All Courts – YE 2010

Source: Judicial Council Annual SB56 Report for 2010

1699 Sitting Judges as of December 31, 2010


Gender – All Courts—YE 2010

California Courts Total

1176

523

Male Female

Source: Judicial Council Annual SB56 Report for 2010

(29.2%)

(70.8%)

1,699 Sitting Judges

Other Diversity in the Courts?


• LGBT(Q) JUDGES ?? No official data collected.

• JUDGES WITH DISABILITIES?? No official data collected.

Scenario #5: The Scenario #5: The ConsultationConsultation

Partner Steve heads Firm’s Intellectual Property Group. Partner Steve heads Firm’s Intellectual Property Group. Client CoCo Shantel planned to branch off into the jewelry Client CoCo Shantel planned to branch off into the jewelry business and asked Steve to review a draft of its website business and asked Steve to review a draft of its website and advise as to whether there may be potential liability and advise as to whether there may be potential liability with Chanel in using its name to promote a costume jewelry with Chanel in using its name to promote a costume jewelry line.line.

Steve consulted with the two female attorneys on his team Steve consulted with the two female attorneys on his team who advised that the draft website reminded them of the who advised that the draft website reminded them of the famous Chanel brand. Steve sought input from outside of famous Chanel brand. Steve sought input from outside of his group.his group.

Steve asked Ann, one of Firm’s most senior partners, to look Steve asked Ann, one of Firm’s most senior partners, to look at the website, commenting that he valued her opinion at the website, commenting that he valued her opinion because she has seen “a lot of styles come and go.” because she has seen “a lot of styles come and go.”

Steve showed the site to George, an openly gay junior Steve showed the site to George, an openly gay junior partner, asking for his opinion and stating, “I partner, asking for his opinion and stating, “I knowknow you you know about fashion.”know about fashion.”

Steve asked Associate Stella, an African American, to view Steve asked Associate Stella, an African American, to view the site, noting that he didn’t expect her to recognize the site, noting that he didn’t expect her to recognize similarities to other brands but was curious of what she similarities to other brands but was curious of what she thought of the client’s “bling bling” and he thought she thought of the client’s “bling bling” and he thought she would get a kick out of the name “CoCo Shantel.”would get a kick out of the name “CoCo Shantel.”

Scenario #6: The PitchScenario #6: The Pitch

Big Law Firm receives an RFP from Giant Co. to handle Big Law Firm receives an RFP from Giant Co. to handle several environmental law matters in San Francisco. While several environmental law matters in San Francisco. While this RFP is limited in scope, it could lead to more this RFP is limited in scope, it could lead to more environmental work for the winning firm nationally in the environmental work for the winning firm nationally in the future. The RFP mentions that the successful bidder will future. The RFP mentions that the successful bidder will bring a diverse legal team to the matters. bring a diverse legal team to the matters.

Big Law taps two of its most experienced environmental Big Law taps two of its most experienced environmental partners to lead the pitch team -- Bill and Ted, who are partners to lead the pitch team -- Bill and Ted, who are Caucasian. Unfortunately, there are no diverse attorneys in Caucasian. Unfortunately, there are no diverse attorneys in their San Francisco group. However, Lisa, an African-their San Francisco group. However, Lisa, an African-American associate in the SF general litigation group, has American associate in the SF general litigation group, has helped Bill and Ted with research from time to time. Lisa helped Bill and Ted with research from time to time. Lisa has five years of attorney experience but has only has five years of attorney experience but has only conducted research on a handful of very specific conducted research on a handful of very specific environmental law issues. environmental law issues.

Big Law previously has sent Lisa on pitches, and clients love Big Law previously has sent Lisa on pitches, and clients love her. However, because of her lack of substantive her. However, because of her lack of substantive experience in environmental law, Bill and Ted probably experience in environmental law, Bill and Ted probably won’t use her on Giant Co.’s matters. won’t use her on Giant Co.’s matters.

Scenario #7: The Training Scenario #7: The Training ProgramProgram

Lucy has been a staff attorney at LawCo for six years and went to trial Lucy has been a staff attorney at LawCo for six years and went to trial twice in the past year. Lucy is also the mother of two preschool-aged twice in the past year. Lucy is also the mother of two preschool-aged children. children.

Lucy is interested in participating in a trial training program taught by Lucy is interested in participating in a trial training program taught by LawCo’s senior trial attorneys. To be considered for the program, LawCo’s senior trial attorneys. To be considered for the program, attorneys must have two trials under their belt and have been with LawCo attorneys must have two trials under their belt and have been with LawCo for at least two years. for at least two years.

Lucy is not selected for this year’s program, even though she had at least Lucy is not selected for this year’s program, even though she had at least as much trial experience as as much trial experience as

the attorneys who made it into the attorneys who made it into

the program. In addition, while the program. In addition, while

the company selected both male the company selected both male

and female attorneys, the only and female attorneys, the only

selectees with preschool age selectees with preschool age

children were men. children were men.

Scenario #8: The Pro Bono Scenario #8: The Pro Bono AssignmentAssignment

Through its partnership with a local community legal Through its partnership with a local community legal assistance project, XYZ Law Firm has received the assistance project, XYZ Law Firm has received the following three pro bono cases to handle: 1) a landlord-following three pro bono cases to handle: 1) a landlord-tenant dispute; 2) a Mexican immigration matter; and 3) tenant dispute; 2) a Mexican immigration matter; and 3) an application for a small business loan.an application for a small business loan.

Jennifer, an associate in the Real Estate Practice Group Jennifer, an associate in the Real Estate Practice Group who is Hispanic (of Venezuelan descent), was one of who is Hispanic (of Venezuelan descent), was one of several associates who indicated she had time to work on several associates who indicated she had time to work on a pro bono matter. Jennifer’s experience includes a a pro bono matter. Jennifer’s experience includes a variety of real estate transactions, representing both variety of real estate transactions, representing both tenants and landlords in lease and sublease transactions, tenants and landlords in lease and sublease transactions, as well as advising lenders and borrowers on real estate as well as advising lenders and borrowers on real estate loans and loan work-outs. loans and loan work-outs.

The Pro Bono Coordinator assigned Jennifer to the The Pro Bono Coordinator assigned Jennifer to the immigration matter.immigration matter.

Scenario #9: Who Did Scenario #9: Who Did What?What?

Partner Don is working on an article for publication in Partner Don is working on an article for publication in a leading legal journal and needs a couple of a leading legal journal and needs a couple of associates to research and draft two discrete associates to research and draft two discrete sections of the article. The Associate Work Flow sections of the article. The Associate Work Flow Coordinator told Don that she would assign Becky Coordinator told Don that she would assign Becky and Amir to work on the article. Don had never and Amir to work on the article. Don had never worked with Becky or Amir. worked with Becky or Amir.

Don tells Becky and Amir the two issues and leaves Don tells Becky and Amir the two issues and leaves it to them to decide who would handle which. Becky it to them to decide who would handle which. Becky and Amir put their respective finished work product and Amir put their respective finished work product into a single memo and gave it to Don. into a single memo and gave it to Don.

Don felt that the write up on one of the issues was Don felt that the write up on one of the issues was much better than the other, such that it needed little much better than the other, such that it needed little editing while the other needed to be completely re-editing while the other needed to be completely re-written. Wanting to recognize her good work, Don written. Wanting to recognize her good work, Don footnoted Becky’s name as a contributor to the footnoted Becky’s name as a contributor to the article. article.

Scenario #10: The Scenario #10: The MediationMediation

Interesting Gadgets technology company is in litigation with Interesting Gadgets technology company is in litigation with its former CEO over trade secrets and customer solicitation. its former CEO over trade secrets and customer solicitation. After protracted discovery, the parties agree to engage in After protracted discovery, the parties agree to engage in mediation because there is no chance at resolving the case mediation because there is no chance at resolving the case by a dispositive motion and they know that the trial will be by a dispositive motion and they know that the trial will be expensive and because of the novel issues in the case, expensive and because of the novel issues in the case, neither side is particularly confident about the outcome.neither side is particularly confident about the outcome.

In attendance on behalf of Interesting Gadgets are its In attendance on behalf of Interesting Gadgets are its outside counsel, in-house counsel, and a Human Resources outside counsel, in-house counsel, and a Human Resources Director. Both the in-house counsel and the HR Director are Director. Both the in-house counsel and the HR Director are Indian. The former CEO is present with her counsel.Indian. The former CEO is present with her counsel.

The mediator, who is also Indian, held a joint introductory The mediator, who is also Indian, held a joint introductory session to explain how the mediation would be conducted, session to explain how the mediation would be conducted, the mediator’s neutral role in the process, and that what the mediator’s neutral role in the process, and that what was said in the caucuses would remain confidential unless was said in the caucuses would remain confidential unless the party authorized the mediator to disclose the the party authorized the mediator to disclose the information to the other side. information to the other side.

At the end of the joint session, the CEO stated that he did At the end of the joint session, the CEO stated that he did not believe he would be treated fairly and he walked out of not believe he would be treated fairly and he walked out of the mediation. the mediation.

We recognize biases… now We recognize biases… now what?what?

Best PracticesBest Practices Develop and Develop and

Communicate theCommunicate theBusiness Case for Business Case for DiversityDiversity

Involve Senior Involve Senior Attorneys in Diversity Attorneys in Diversity EffortsEfforts

Expand Recruitment Expand Recruitment Beyond Box CriteriaBeyond Box Criteria

Create/Enforce Create/Enforce Inclusion PoliciesInclusion Policies

Give Credit for Give Credit for Diversity-Related WorkDiversity-Related Work

Establish Establish AccountabilityAccountability

Dispel Myths & Dispel Myths & Stereotypes through Stereotypes through Diversity TrainingDiversity Training

Develop Mechanisms Develop Mechanisms for Effective Mentoringfor Effective Mentoring

Promote Work-Life Promote Work-Life BalanceBalance

Support Diversity Support Diversity Activities Inside & Activities Inside & Outside of your Outside of your OrganizationOrganization

NATIONAL DIVERSITY INITIATIVES NATIONAL DIVERSITY INITIATIVES

1999: 1999: Diversity in the Workplace – A Statement of PrincipleDiversity in the Workplace – A Statement of Principle 500 major law firms became signatories to a statement of 500 major law firms became signatories to a statement of

commitment to working toward better diversity both in their commitment to working toward better diversity both in their own legal departments and in their outside counsel firms.own legal departments and in their outside counsel firms.

2004: 2004: A Call to Action – Diversity in the Legal ProfessionA Call to Action – Diversity in the Legal Profession Due to the lack of significant progress since the 1999 Due to the lack of significant progress since the 1999

statement, Chief Legal Officers of major corporations reaffirmed statement, Chief Legal Officers of major corporations reaffirmed their companies’ commitment to diversity and asserted that their companies’ commitment to diversity and asserted that they would make business decisions, including selection and they would make business decisions, including selection and termination of firms, based on diversity performance.termination of firms, based on diversity performance.

NATIONAL DIVERSITY ORGANIZATIONSNATIONAL DIVERSITY ORGANIZATIONS

MMINORITY INORITY CCORPORATE ORPORATE CCOUNSEL OUNSEL AASSOCIATION – SSOCIATION – www.mcca.comwww.mcca.com

AASSOCIATION OF SSOCIATION OF CCORPORATE ORPORATE CCOUNSEL – www.acc.com OUNSEL – www.acc.com

NNATIONAL ATIONAL AASSOCIATION OF SSOCIATION OF MMINORITY & INORITY & WWOMEN-OWNED OMEN-OWNED LLAW AW FFIRMS – www.namwolf.org IRMS – www.namwolf.org

LLEADERSHIP EADERSHIP CCOUNCIL ON OUNCIL ON LLEGAL EGAL DDIVERSITY – IVERSITY – www.lcldnet.org www.lcldnet.org

THE THE IINSTITUTE FOR NSTITUTE FOR IINCLUSION IN THE NCLUSION IN THE LLEGAL EGAL PPROFESSION ROFESSION – www.theiilp.com – www.theiilp.com

CALIFORNIA DIVERSITY CALIFORNIA DIVERSITY ORGANIZATIONSORGANIZATIONS

CCALIFORNIA ALIFORNIA MMINORITY INORITY CCOUNSEL OUNSEL PPROGRAM – ROGRAM – www.cmcp.orgwww.cmcp.org Emerged in 1989 in response to the disparity between Emerged in 1989 in response to the disparity between

the percentage of minorities in California’s population the percentage of minorities in California’s population and legal profession. Since then, it has been dedicated and legal profession. Since then, it has been dedicated to the promotion and sustainability of diversity and to the promotion and sustainability of diversity and inclusion in California’s legal profession. inclusion in California’s legal profession.

CMCP’s mission – to provide access and opportunity to CMCP’s mission – to provide access and opportunity to minority lawyers for business and professional minority lawyers for business and professional development.development.

CALIFORNIA DIVERSITY CALIFORNIA DIVERSITY ORGANIZATIONSORGANIZATIONS

BBAR AR AASSOCIATION OF SSOCIATION OF SSAN AN FFRANCISCO - RANCISCO - www.sfbar.org www.sfbar.org Goals and Timetables for Minority Hiring and Goals and Timetables for Minority Hiring and

AdvancementAdvancement No Glass CeilingNo Glass Ceiling LGBT IssuesLGBT Issues Disability RightsDisability Rights Diversity Pipeline ProgramsDiversity Pipeline Programs Bottom Line Partnership Task ForceBottom Line Partnership Task Force

INTERESTING READINGINTERESTING READING

ACC Docket Developing Great Minority Lawyers, ACC Docket Developing Great Minority Lawyers, July/August 2010July/August 2010

BASF’s Bottom Line Partnership Task Force Report, BASF’s Bottom Line Partnership Task Force Report, November 2010November 2010

IILP Review 2011: The State of Diversity and Inclusion IILP Review 2011: The State of Diversity and Inclusion in the Legal Professionin the Legal Profession

IILP: The Business Case for Diversity: Reality or Wishful IILP: The Business Case for Diversity: Reality or Wishful Thinking, 2011Thinking, 2011

Report of the 2011 NAWL Survey on the Retention and Report of the 2011 NAWL Survey on the Retention and Promotion of Women in Law FirmsPromotion of Women in Law Firms

THANK YOU!THANK YOU!

Documents

Recognizing and Eliminating Bias in the Legal Profession January 10, 2012 Bias? What Bias?