Law Firm Segregation Reminiscent of Jim Crow

Recently, I contacted the black graduates from my law school class to find out how others were fairing in the legal profession. Nearly all who'd had experience in a large firm environment expressed chagrin, sighting instance after instance of suspect treatment.
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At Georgetown University Law Center, I studied Constitutional Law with Father Robert Drinan. Having served paradoxically as both a priest and a Congressman, he was an apt guide through the maze of cases--Plessy v. Ferguson, Brown v. Topeka Board of Education, and the Bakke decision--that underscored the dichotomy between justice and law when race and power clash.

After graduating from law school, I sold my first book to Random House for a six-figure advance, lectured at Vassar and did commentary for NPR. Today I host the video blog, and write frequently for newspapers. Still, a writer's income is inconsistent, so I've always kept my resume on file with legal placement agencies. Three years ago, a recruiter suggested a staff attorney position at Covington & Burling LLP as a "great opportunity." And it experience the race/power dynamic firsthand.

Staff attorneys are non-partner track lawyers who handle the menial legal tasks--generating binders and attaching "relevant" or "not relevant" codes to thousands of emails, spreadsheets, and any other documents associated with a particular case--that associates shun. While paralegals have their own offices, as many as ten staff attorneys share windowless file rooms. Segregated from other lawyers in the firm, we go uninvited to attorney-only firm functions and are not provided jury duty or maternity leave. The base pay and bonus structure is half that of a 25 year old first year associate's.

Blacks at Covington comprise less than 5% of the Washington office's partners and associates, but make up 30% of its staff attorneys. A peek at the firm's website doesn't reveal this since, unlike all other lawyers there, staff attorneys aren't pictured. Were they, a peculiar pattern would emerge.

In a Legal Times essay, "The Unqualified Myth," Veta T. Richardson, Executive Director of the Minority Corporate Counsel Association wrote, "Law firms claim to have consistent hiring criteria, but their ranks are actually filled with exceptions to the rule. These exceptions are more likely to be white lawyers." Indeed, Covington's black staff attorneys (like its black partners and associates) hail from top law schools like Harvard, Duke and Georgetown while several white associates and partners attended schools like Catholic, Kentucky and Villanova (all ranked well below 50). Taken as a whole, the black staff attorneys' average law school rank is higher than that of white staff attorneys at the firm.

Blacks bought into the notion, stressed by legal literature, ranking systems and law firm recruiting departments, that investing in a top legal education is paramount for those wishing to work at top law firms. It's disheartening to then discover that the black student who borrows $120,000 to attend Georgetown will only earn half that of the white associate who's paid $60,000 to attend the University of Maryland.

Covington began stockpiling its staff attorney ghetto with blacks and other minorities in 2005, shortly after the General Counsel of some of the country's largest companies joined Roderick A. Palmore, Executive Vice President, General Counsel & Secretary of Sara Lee in taking a tougher stance on law firm diversity. Signed by hundreds of General Counsel, this new "Call to Action" states they will retain firms that demonstrate a level of diversity reflective of their employees and customers and end their relationship with firms "whose performance consistently evidences a lack of meaningful interest in being diverse."

Covington has certainly diversified its firm; however, its attorneys are far from equals. The vast majority of Covington's black attorneys do no substantive work, have no control over their case assignments and no opportunity for advancement. This seems to be just the sort of structure the U. S. Equal Employment Opportunity Commission warned against in its 2003 "Diversity In Law Firms" report which stated, "In large, national law firms, the most pressing issues have probably shifted from hiring and initial access to problems concerning the terms and conditions of employment, especially promotion to partnership."

Palmore has made clear that in drafting the "Call", his hope was that rather than utilize minority attorneys solely to satisfy a billables requirement, firms would use diversity to advance a firm's culture so that a variety of perspectives influence how a firm functions. It is clear that when true diversity is absent, a dysfunctional work place arises, one in which even purveyors of racial jokes are tolerated.

At a staff meeting to address concerns regarding a colleague's reading aloud a Wikipedia list of racial slurs, the staff attorney manager downplayed the incident then recalled how as a child when his pet monkey got out of its cage, his mother never cared about the why or how. She simply wanted it not to happen. The analogy was ill-advised but the inference clear--rather than rooting out racism in the workplace, he only cared that the offender cease the behavior and the offended desist complaining about it.

One might wonder, "Why do blacks stand for such monkey business?" Because they know that to object, one risks ruining one's career. In the law review article, "Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis," authors David Wilkins and Mitu Gulati assert that black lawyers lack mentors who can protect them.

Recently, I contacted the black graduates from my law school class to find out how others were fairing in the legal profession. Many are working in government, a few have been very successful at careers outside the law and some are in-house attorneys. Nearly all who'd had experience in a large firm environment expressed chagrin, citing instance after instance of suspect treatment. Of the few still at firms, I could only find one out of a class of more than 50 blacks who had made partner at a large law firm. How'd he accomplish this? "Sure I worked hard, made myself indispensable, but I'm not going to say I'm the only person who's ever done that. You have to have a Partner willing to be an advocate for you. I had several actually. There was a black partner who was helpful, but my most vocal advocate was a Jewish guy who made sure I stayed on track."

Absent a mentor, it's easy to be derailed. On August 14th, at 10am, I was told that I was being laid off. I received no severance and my computer was switched off at noon. Since then I have been resisting the impulse to question whether Covington's staff attorney policy is unfair to blacks and other minorities. It's a question no black professional wants to confront. We know the eye-rolling and impatient sighs the issue provokes. To protest, one faces reproach and career suicide. Firms know this and bank on everyone's silence.

Conservative columnists like Stuart Taylor Jr. have suggested that minorities aren't bringing discrimination lawsuits against law firms because disparate treatment doesn't exist, but try this logic.

Black attorneys know law firms have the resources to crush an adversary. It is possible that Covington or, more specifically, the partner charged with managing our group were not bias. Perhaps he was simply inept, better equipped for his other firm duties -- planning Friday Happy Hours, organizing the firm's NCAA pool and choosing the band for the office Holiday party. Even he remarked that it took him 17 years to make partner. Unfortunately, blacks don't get to stick around that long. I wish Father Drinan was still alive to help me make sense of this.

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