Uptick in Firm Focus On DEI: Steady Trend or a Passing Fad?

Published: November 2022
Written by: Jason McIntosh 

The social and economic benefits of a diverse, inclusive, and equitable legal industry have been highlighted, discussed, and emphasized frequently in recent years.  The Florida Bar recognizes that minorities are significantly underrepresented in the legal profession when compared with the general population.  Fair representation and equal access are crucial to an unbiased system of justice.  Tangible progress towards improving that disparity has been shown in data collected by various organizations.  But what remains discouraging is how much that progress slows each step up the legal profession’s ladder.

According to the 2020 Census, Florida’s race and ethnicity demographic breakdown was 73.2% white, 17.2% Black, 3.9% Asian with 26.5% of the population identifying as Hispanic or Latino.

According to the Florida Bar Economics and Law Office Management Survey, in 2021, 81 percent of Florida Bar members were white, 11 percent Hispanic/Latino, 4 percent Black/African-American, 1 percent Asian, and 3 percent were categorized as Other.

At the law school level, the numbers have shown the greatest level of progress.   Over the last 20 years at least 1 out of 5 law school students can be classified as belonging to a racial or ethnic minority, according to data collected by the American Bar Association (ABA).

As one may expect that progress has revealed itself in overall gains year over year in the placement and hiring of diverse candidates at summer associate/clerk level.  According to the National Association for Law Placement (NALP) Report on Diversity at U.S. Law Firms, this year’s summer associate class at U.S. Law firms was ‘the most diverse ever’.   The percentage of summer associates of color grew by nearly 5 percentage points in a single year, the largest gain the 29 years that NALP has been tracking the information.  Women made up more than half of all summer associates for the fourth year in a row, and the proportion of LGBTQ summer associates increased to 8.41% which was also a historic high. 

As noted by NALP Executive Director James G. Leipold in the report “The challenge for the industry is to retain, train, develop, and promote this talented and diverse pool of new lawyers so that 5 years from now the associate ranks as a whole reflect similar diversity and representation, and 10 or 15 years from now we can celebrate a partnership class that is similarly diverse.” 

And therein lies the problem.  Progress is much slower amongst the associate ranks and certainly when it comes to partnership.  Among the firms that submitted data to NALP, lawyers of color accounted for less than 28% of all associates in 2021, and less than 11% of law firm partners.  Additionally, when you break down the racial demographics even further the year-over-year growth among Black associates and partners all lag behind the corresponding numbers of Asian and Latino attorneys.    Black lawyers accounted for 5% of associates in 2021 and 2% of partners. The data shows 6.1%/2.86% and 12.5%/4.3% for Latinos and Asian attorneys respectively.

The numbers are even more alarming gender dynamics are accounted for.   According to Leipold, “Less than 4% of partners are women of color… [with] Black and Latinx women each continued to represent less than 1% of all partners ins U.S. law firms”

The optimist in me is hopeful that despite the incremental increases that the trend continues upward as firms continue to see the financial and social benefits of diversity, equity and inclusion.  However, the cynical part of me sees the recent data as a potential outlier in response to much of the civil unrest and many social justice movements that we saw after the killings of George Floyd, Breonna Taylor, and others in 2020. 

In the aftermath of some of the protests, demonstrations, and demands for change, many corporations made it a priority to increase the diversity of their personnel, the spotlight of minority-created content services and goods, and increase their support for minority businesses and charitable causes.  As often happens with our news cycle hot button issues are out of sight and out of mind.  It’s easy to focus on an initiative when it’s the current event, but an issue that is as complex as this will take years of intentional and deliberate action to correct.

There is no doubt that the disparity has been recognized and efforts are being made to rectify the issue.  However, making sure these changes continue to trickle up the legal hierarchy is where the real challenge lies.   

As co-chair of the Palm Beach County Bar Association’s Committee for Diversity and Inclusion and as a Black partner at a reputable firm in the county I want to prioritize taking this challenge head-on.  That is why we’ve created a new “Law Firm Outreach” subcommittee chaired by Amelia Jadoo.  We have plans to try and identify, spotlight, and give a platform for qualified diverse attorneys and help to put them in positions to have success.

Jason McIntosh is a partner at Lytal Reiter Smith Ivey and Fronrath, and he practices in the area of Personal Injury

Diversity in the Judiciary and Beyond

Published: October 2022
Written by: Marc Hernandez

This year the President of the United States appointed Justice Ketanji Brown Jackson, the first female African American justice, to the U.S. Supreme Court. In addition, the Governor of Florida appointed Justice Renatha Francis, the first Jamaican American and second black woman, to the Florida Supreme Court. These appointments are not only a success story for the justices themselves but also a success story for diversity in the judiciary. But whether this represents the start of a new trend, or a relatively isolated occurrence remains to be seen.

The American Bar Association recently released its annual profile of the legal profession for 2022. In its 124-page report, the ABA analyzed, among other things, the diversity of the judiciary. The ABA found the “federal judiciary has become increasingly diverse over time,” especially since 2021. However, the ABA explained that progress was uneven, and “[d]iversity varies year by year.” For example, from 2020 to 2022 the percentage of African American or black judges on the federal bench increased slightly from 9.5% to 11%. In the same period, the representation of Hispanic federal judges grew from 6.5% to 7.7%, while the share of Asian Americans grew from 2.6% to 3.8%. Finally, the percentage of female federal judges rose from 27% to 30%. 

At first glance, these statistics indicate positive, albeit incremental progress at increasing diversity in the judiciary. Yet, the numbers need context. Although black judges comprise 11% of the federal bench, they are underrepresented compared to the total black population in the U.S., which is 13.6%. Hispanics fare worse as the percentage of Hispanic federal judges, 7.7%, is less than half that of their share of the U.S. population, 18.9%. Likewise, women account for 51% of the U.S. population but only 30% of federal judges. Three states—Nebraska, North Dakota, and Idaho—have absolutely no female federal judges.

Some may argue that if minority judges are compared to the pool of U.S. lawyers—rather than the entire U.S. population—they are not underrepresented. The ABA concedes this point is factually true, but the implied conclusion—that diversity is not an issue and full representation has been achieved—is not. The reason the percentage of Hispanic federal judges exceeds the percentage of Hispanic lawyers—but not the percentage of all Hispanics in the U.S.—is because the percentage of Hispanic lawyers is exceedingly low to start. Only 5.8% of all lawyers are Hispanic even though 18.9% of Americans are Hispanic. Of course, this begs the question: why is the percentage of Hispanic, black, female, and other minority lawyers lower than their share of the U.S. population?

We should all be concerned with the answer to this question if we hope to eliminate the vestiges of racial prejudice and other unjust systemic disadvantages. Reasonable people can disagree on the best policies to achieve that objective. For decades, one tool has been race-conscious admissions policies at universities and other educational institutions. Under current law, universities may consider—i.e., they are not required to consider—race or ethnicity as one of many factors in the process of evaluating each applicant as an individual. As the U.S. Supreme Court held in Grutter v. Bollinger, universities have a compelling interest in attaining a diverse student body and the educational benefits flowing from that like promoting cross-racial understanding, breaking down racial stereotypes, and enabling students to better understand persons of different races, promoting learning outcomes, preparing students for an increasingly diverse workforce and society, and preparing students as professionals.

However, the continued validity of Grutter, which was a 5-4 decision, is now in doubt. This term the U.S. Supreme Court is poised to reconsider Grutter in two cases brought by Students for Fair Admissions against Harvard and the University of North Carolina. In both cases, the petitioner explicitly asks the supreme court to prohibit the use of race-conscious admissions policies by universities. The ABA has filed an amicus brief in opposition and asked the supreme court to affirm Grutter. The ABA maintains it has “a profound interest” in the two cases because “[r]acial and ethnic diversity in the legal profession cannot be produced without diversity in undergraduate institutions and law schools that serve as the pipeline to the legal profession.” In other words, law schools are the training grounds for future lawyers, and if fewer diverse students are admitted to law schools then fewer will have the opportunity to graduate, practice, and become judges, professors, or partners later in the professional pipeline.   

Regardless of the Supreme Court’s eventual decision in the Students for Fair Admissions cases, most if not all should agree with the ABA’s view that a diverse bench and bar are critical to minimizing implicit bias among lawyers, and to “inspiring greater public faith in the rule of law.” The methods for achieving that diversity may change but the goal should not.

Marc Hernandez is a board-certified appellate attorney at Lytal, Reiter, Smith, Ivey & Fronrath, and a Palm Beach County native.