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“Building Diverse Law Departments Takes Structure, Culture and Effort”

Corporate Counsel By Kimberly Leach Johnson

The progress of women in the law, as measured by the ratio of female law-firm partners, is alarming. Only about 20 percent of partners are female, and far fewer are female racial or ethnic minorities. But there are certainly bright spots—women who shook off our industry’s sluggish advance to show a path forward.

Take Sharon Barner, vice president and general counsel at Indiana-based global engine manufacturer Cummins Inc. Barner is a former U.S. deputy undersecretary of commerce for intellectual property and deputy director of the U.S. Patent and Trademark Office. She had a long and successful career in private practice including leading a team of more than 200 lawyers as head of an Am Law 100 intellectual property department.

I recently talked with Barner, now general counsel, about our experiences in different corners of the legal profession and what can be done to influence law-firm and corporate-legal leadership to be fairer and more inclusive, even as the number of students of color at law schools drops and research shows minority women leaving private practice in droves.

We agreed that to move the legal industry ahead, at firms and at corporate legal departments, leaders have to be willing to take a detailed look at what it takes to develop great lawyers and make sure they are giving women and minority lawyers the meaningful, challenging work that will keep them engaged and help them thrive.

Barner starts by looking first at the structural elements of these organizations, rather than at the individuals who choose to leave, and what factors make it difficult for bright, ambitious people to succeed. For example many law schools give strong preference to legacy applicants. If those schools have only ever had a small group of minority students, then legacy-admissions programs will make it difficult to change the makeup of future classes.

“If you absolutely can’t take race into account, but you can take legacy, you’re committed to replicating what you’ve had in the past,” Barner said. “If legacy means that for many years in the U.S. your relatives couldn’t get into a school, then your legacy is short.”

Companies can look at their own practices to make sure every lawyer gets the structural support to build their capabilities—training, experience and coaching—then be given the chance to build credibility with clients by doing visible, complex work.

“If only men get the complex work with the client, they will be seen as the natural successor to the client relationship,” Barner said to me after the Leadership Council on Legal Diversity’s Fellows Leadership Lunch. “If you want to change that dynamic, you have to have women in that room, having that visibility and doing great work with clients so it becomes natural for a woman to become the successor.”

And there are ways for companies’ general counsel to see if their law-firm partners are not only hiring diverse attorneys but also giving them this meaningful, complex work. But it takes effort. Barner recommends looking closely at invoices to tell who from a firm is doing the work on your account, and if you can’t tell from that, ask the firm to show you. In-house attorneys can pay attention to whom they interact with at the firm, and they can request people who reflect your company’s values to work on your projects.

While Barner made diversity equal to quality and service in her measurement of Cummins’ external law firms, she warns that measurement can’t replace the active commitment and energy it takes to incentivize both in-house and law firm colleagues to change. It’s possible for a firm to deliver good results, but still not provide satisfying service if the firm doesn’t have a diverse team working on her account, she said.

“It’s not easy to add another task on top of a million things you do,” Barner said. “It does take time and it does take effort, but you make time for what you’re passionate about and when you are focused on it, you can make a difference.”

Cultural factors at a firm or company also matter. It takes effort by both the women and people of color and members of what Barner calls the dominant culture to create an environment for everyone to flourish.

Barner puts some responsibility for this on the individual to bring their culture to the table, as she did when she started working in a corporate legal department. She found that she had to be direct about why it wasn’t comfortable for her to be forthcoming with strangers about her whole life.

“Being willing to examine my own cultural upbringing is important,” Barner told me. “My parents grew up in the 1930s. In my household, you were raised not to talk publicly about our home.”

At the same time, members of the majority must value diversity implicitly. The best work comes from taking the time to understand different cultural and diverse aspects that the people on a team bring to the work.

“Inclusion is not just about having diversity,” Barner said. “it’s how you make the most of that diversity, which you can’t do unless you’re willing to put majority culture aside and be receptive to others.”

Kimberly Leach Johnson is a partner and firm chair at Quarles & Brady LLP. She has practiced trusts & estates law for more than 30 years.


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Reprinted with permission from the March 20, 2018 issue of Corporate Counsel. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.