Law firms on wrong track on diversity, professors argue

Ontario law firms are focusing too much on external factors in explaining their lack of diversity and should instead look inward to question why their ranks aren''t more reflective of society, according to two professors who are studying the issue.

“The burden that has to be lifted is on those organizations that are not reflective of society,” said Avner Levin, chairman of the law and business department at Ryerson University’s Ted Rogers School of Management.

At an event on Oct. 11, Levin spoke along with colleague Asher Alkoby about their research into the status of visible minorities in the legal profession. After researching different approaches to the issue, including the various organizations and efforts launched in Canada as well as the more advanced U.S. experience, both have concluded the strategies tried so far have largely been failures and also miss the key point by treating diversity as a business-case matter rather than a social justice and equity concern.

“We didn’t feel there was sufficient self-reflection, perhaps,” said Alkoby, who called many law firms’ focus on external factors in explaining their lack of diversity “a bit of a deflection.”

In interviews with members of Legal Leaders for Diversity, an organization of in-house counsel that promotes inclusiveness in the legal profession, respondents pointed to a few key factors: Many high school students from visible minority groups don’t have mentors who would encourage them to study law, something that leads to a so-called pool or pipeline problem that makes it hard to recruit people from equity-seeking communities; and many of those the law firms do hire leave after a few years often due to a lack of mentors.

So instead of looking at themselves, firms have justified promoting diversity based on profit and business cases given the potential for competitive advantages by harnessing new business opportunities; improving performance by having a more heterogeneous team; and achieving cost and risk reductions through decreased turnover and avoidance of discrimination lawsuits. “The challenge there, of course, is it puts the burden on you — you the advocate for diversity — to make the causal connection,” said Alkoby of the link between diversity and profit.

What’s more, a look at the United States, where law firms have been more proactive on the diversity issue for a longer time, shows arguments about the business case really don’t pan out. “The results are mixed, specifically in the legal profession,” said Levin, who noted there’s little evidence firms earn more profit due to diversity.

“The causality of what leads to what is something that hasn’t been established,” he added.

In Canada, efforts by in-house counsel to encourage diversity at the law firms they do business with have taken two approaches. One organization, A Call to Action Canada, advocates directing legal work to those law firms that show progress on the issue while another one that popped up in recent years, Legal Leaders for Diversity, takes a less confrontational approach. But according to the Ryerson researchers, even the more assertive approach hasn’t been that effective. “We think they’re missing out by not asking a very basic question,” said Levin in reference to the disparity between visible minorities’ share of the local population and their presence in the Toronto area’s legal community. “I think everybody has to explain why they’re not like that.”

Part of the researchers’ criticism of the focus on the business case is it suggests that enhancing diversity is a win for all sides when it in fact does require law firms to devote resources if they’re going to be truly effective in addressing the issue. So when it comes to trying to retain visible minorities at law firms, for example, mentorship is one strategy that can work, according to Alkoby. But the pressure to bring in revenue can be a challenge for senior lawyers considering acting as mentors, he noted, suggesting that recognizing that time is one solution.

In criticizing the legal profession’s approach to the diversity issue, the researchers suggest there’s an absence of focus on the structural factors that create inequality in the first place in favour of the emphasis on the profit motive. In a recent article in the International Journal of the Legal Profession, the two researchers, in fact, took a look at those issues and questioned, for example, whether Ontario has it right in its approach to the articling crisis. While the profession has been focusing on the shortage of articling positions for the pool of law school graduates, Alkoby and Levin suggest Ontario actually needs more lawyers as it has fewer of them on a per-capita basis compared to some other jurisdictions.

When it comes to the lack of articling positions, they blame skyrocketing law school tuition in part for the problem. That’s because law students who come out of school with massive debts need to make decent salaries even when they article, something that pushes them towards higher-paying corporate law jobs and makes it difficult for small firms to afford to offer a position. And when it comes to diversity, the impact is even greater as law graduates from visible minority communities have more difficulty in getting an articling position, they noted in the 2012 article.

“In other words, for those who see the articling bottle-neck as the symptom of more fundamental issues, other solutions come to mind,” they wrote. “One possible solution is to reduce the cost of legal education, either by re-regulating the existing law programs or by allowing for new, cost-competitive law programs to be opened. Law students will thus be able to develop an interest in a variety of legal careers and careers outside the law, all of which would benefit society more than the current focus on white-shoe firms.”

For more, see "GTA law firms lag on diversity: report."

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