Two years following the launch of The Equity Project—which provides an economic incentive to close the gender gap in law through a $50 million pool of capital earmarked to back commercial litigation and arbitration led by women—Burford Vice President Jessica Woodhouse asked some of the lawyers who serve as Equity Project Champions to offer practical advice to law firm leaders and law firm clients on promoting gender diversity in law.
What motivated you to become an Equity Project Champion and how do you foresee economic incentives like The Equity Project impacting the gender gap in law?
Megan Jones: For me, getting involved in the Equity Project was a no-brainer. We already know that there are powerhouse women litigators ready and willing to take and win cases. The Equity Project marries that talent with opportunity: It puts together funding for talented, experienced women to create a litigation record and hedge ordinary litigation risk at their law firms. It also fast tracks that decision for these law firms to put capable and tested women litigators in charge of matters when The Equity Project can provide funding for their cases. It is a win-win situation for law firms and women litigators.
Such economic incentives can help fill that critical gap facing women in the law. Rather than depend on traditional models of referrals or generating work that may be anchored in systems that have been slow to change, the Equity Project gives women a new source of work: Themselves. Women can develop a case, pitch it to The Equity Project, bring it into their firm (funded) and do so outside the typical origination system. This is exciting and should inspire women litigators everywhere to utilize The Equity Project for the appropriate case.
Nicole Galli: The Equity Project struck me as a unique initiative designed to target a key area for women’s empowerment in the law—economic power. Women lawyers who have their own books of business are harder to marginalize. Having a significant book can lead to influence, and it provides women lawyers with options, including to move firms or start their own firms, and with some security to speak out and make changes. Economic incentives like The Equity Project can help women become rainmakers and encourages majority-male run firms to funnel opportunities to women when they might not otherwise have done so.
Do you have any practical advice for law firm leaders committed to fostering diversity?
Faith Gay: Removing implicit bias in law firm hiring can go a long way towards achieving greater diversity in the industry. We’ve had success using blindly graded case studies in our assessment of associate candidates. Partners receive and are asked to grade a candidate’s written case study without names or other identifying details. This removes unconscious bias surrounding race or gender, assuring hiring decisions that are based in substantial part on vital skill sets including writing, communication and creative analysis under time pressure. This process has also resulted in a substantial percentage of women, LGBTQ and attorneys of color joining our ranks.
Similarly, it’s very important for more junior attorneys to see significant numbers of women and other diverse lawyers in visible positions of authority and leading important cases to signal a firm’s values.
Stephanie Carman: To support diversity, there are a number of broad areas that we should continue to address with creative, effective and efficient programs. We need to support our diverse teams by encouraging and facilitating mentoring and feedback with personal commitments to making it work at every level. Small mentoring groups with individuals at different stages of practice are a supportive way to connect. Strengthening leadership, business development and skills training are also important. Additionally, equitable distribution of work and origination credits, access to clients and pitch opportunities and internal and external leadership opportunities are vital to development and morale.
Carolyn Lamm: My recommendation for law firm leaders who are committed to improving diversity is to start by becoming a more inclusive leader in their own practices by recognizing and managing internal biases. In this regard, it is important to ensure that any management decisions are based on facts and deep understanding of individual circumstances—not assumptions—and that diversity initiatives are more than just “good PR” and are actually translated into tangible actions. For example, this year I chaired a task force on gender diversity in arbitral appointments and proceedings for the International Council for Commercial Arbitration. In the report, we lay out the importance of diversity, current trends and roadblocks to increasing diversity, and concrete opportunities to address diversity imbalance in arbitral appointments. Many of our recommendations in that report are useful across all legal practices.
Firm leaders should include diverse members, strive to embrace diversity and foster an environment that not only promotes inclusion, but also creates a sense of belonging for attorneys from all backgrounds. One way firm leaders can do this is by using their influence to call out and interrupt exclusion when they see it. Although addressing such situations may be uncomfortable, it is important to be mindful of how uncomfortable it would be to experience discrimination or micro-aggressions in the workplace. For example, studies show that women tend to be interrupted more often than their male counterparts, tend to be given less credit for their ideas, and generally have less influence in the context of a conversation than their male colleagues. In my role as an arbitrator and counsel, I have thus sought out opportunities to allow and enable contributions and discussions from all colleagues.
Finally, firm leaders can make a public and tangible commitment to increasing diversity by signing onto the Mansfield Rule, which requires firms to measure whether at least 30 percent of women, attorneys of color, LGBTQ+ individuals and lawyers with disabilities have been considered for leadership and governance roles, equity partner promotions, formal client pitch opportunities and senior lateral positions. In addition, when promoting women and diverse attorneys, it is important to provide training and support so they will succeed. Over 100 law firms including White & Case have committed to this standard. This type of public commitment signals to clients, attorneys and prospective talent that retaining and promoting diversity is a high priority at the firm.
How do you make the case for gender diversity remaining a priority in the midst of a downturn? And do you believe that it will remain a priority?
Megan Jones: The last economic downturn disproportionately affected diverse lawyers. History cannot repeat itself if law firms wish to stay competitive. Given the scrutiny that law firms face about their diversity and inclusion efforts from clients, juries and the courts, decisions made today can affect a law firm's pipeline of tomorrow. To ignore diversity and inclusion ignores the wants and needs of clients for diverse legal teams. It ignores the diversity of jury pools when cases go to trial. It also ignores the countless studies that show the improved profitability of diverse leadership teams. The case for law firms to continue to make diversity a priority is clear, and I think will be a predictor of future success.
Nicole Galli: A great starting place for making the case for diversity and inclusion is Burford’s recent study. The statistic that spoke most to me is the perception among 21% of the in house counsel responding that women lawyers are more efficient than men, while the vast majority believed that the quality of their work is at least as good. Especially in times like now when legal budgets are tight and there is ongoing economic uncertainty, why not seek out the high quality and more efficient (i.e., quicker and/or cost-effective) resource?
That being said, although there are some shifts occurring, comprehensive diversity and inclusion in the law remain elusive and the pace of change is glacial. Studies show this trend is likely to continue for some time unless there are dramatic changes. Also, if the past is any guide, there is also a real risk that women (and minorities) could be disproportionately affected by negative impacts of the current economic uncertainty on the legal profession. We saw that the last great recession hit women lawyers harder than men. I fear that history could repeat itself if we aren’t paying attention to this issue.
Carolyn Lamm: During these unprecedented times, firms must make even greater efforts to hire, retain and promote diverse talent. A 2019 National Association for Law Placement report on diversity in law firms shows that the 2008 recession unravelled years of diversity progress as certain firms made layoffs and talent decisions without considering the importance of diversity. It is thus critically important that retention and promotion decisions are not just based on assumptions and that work is distributed in an equitable fashion. More generally, law firm leaders should actively support their teams to ensure that everyone feels professionally and personally supported by the firm.
What tangible changes can law firms make to promote gender diversity in their senior ranks?
Maria Ginzburg: It is very important that female associates not become discouraged and drop out before making it to partner. The practice of law and the path to law firm partnership is often grueling, but young lawyers rise to the challenge, feel satisfied and push themselves to the next level when they are getting opportunities to develop their skills and feel appreciated. However, when long hours and stress are combined with implicit or overt bias, the cocktail can become toxic.
To overcome this, senior attorneys, both women and men, should mentor young attorneys and really listen to them. Mentors need to pay attention if female attorneys find themselves pushed to the side, whether by another attorney, a client or a judge. When this happens, mentors should help them develop a strategy to get a better chance to shine. Opportunity is the currency for career development, and senior attorneys need to create opportunities for female colleagues to get “prime time” work at every level, whether it is taking witnesses at trial, arguing an important motion or having a seat at the table at a pitch.
Learning how to develop business is not often taught at firms, yet it is a crucial skill. Law firms should teach associates early and often, whether through training by senior rainmakers or even better by including them in real life pitches. And then staff the women you bring to the pitch on the matter. Don’t bring women into a pitch just “for show”. If you give female attorneys the runway to succeed, they will fly.
Alex Rose: The tone from the top and the formal policies need to be right and support gender diversity through leadership, strategy and accountability. In Australia, we have the Workplace Gender Equality Agency (WGEA) which is an Australian Government statutory agency charged with promoting and improving gender equality in Australian workplaces. It requires larger employers to report on key gender equality indicators and separately offers a well-recognized and valued certification to employers who can demonstrate that they are meeting increasingly high benchmarks to support gender equality. Measures that firms can take to promote diversity in senior ranks include access to flexible work, paid parental leave and ensuring zero tolerance of harassment. Beyond that, firms also need to engage in early talent identification and direct mentoring and support for women to continue in their careers and get access to opportunities including for women who become a parent.
Roberta Liebenberg: The disproportionately high rate of attrition of experienced women lawyers from law firms was the subject of a first of its kind study I co-authored last year with Stephanie Scharf. In “Walking Out the Door,” which was co-sponsored by the ABA and ALM Intelligence, we set forth specific data-driven recommendations to stem the tide of attrition and to increase gender diversity in the senior ranks at law firms. We stressed that real structural and cultural reforms need to be implemented and, in particular, law firm leaders must commit themselves to specific numerical benchmarks and goals and a timeline for achieving them, along with accountability for success or failure. Firms should use metrics to measure how senior women are faring in terms of membership on key firm committees, attainment of leadership roles in departments and practice groups, promotion to equity partner status and compensation. They also need to carefully assess whether women are being treated equitably in decisions regarding billing and origination credit and the inheritance of clients when relationship partners retire or go elsewhere. In order to avoid the continued loss of talented and experienced women lawyers in whom they have made such a substantial investment, firms must act with a sense of urgency, even during this pandemic. They need to realize that clients are insisting upon gender diversity among the outside senior lawyers who handle their work, and thus it is a business imperative to create and maintain a pipeline of senior women who can serve as leads on deals and first chairs at trial.
As the holders of the purse strings, GCs have a significant role to play. To that point, in January 2019, 170 GCs penned an open letter telling law firms, effectively, “Do better at diversity, or risk losing our business”. What do you see as the most effective ways in-house lawyers can inspire change?
Maria Ginzburg: We recommend in-house teams hold firms accountable for the diversity of their teams. For decades, firms have fallen into a habit of pitching a diverse team but delivering homogenous ones. The client can and should follow up after the pitch to ask about the composition of the team and ensure that there is diversity.
Also, GCs should hire firms where diverse partners lead the matters and get credit for doing so. “Old school” law firm compensation models allow entrenched relationship partners to take origination credit or nominal leadership credit, even when younger partners, who may well be diverse, actually run the matter. GCs can have frank conversations with firm managing partners to make sure credit goes where it’s deserved—especially when they are impressed by the performance of a diverse attorney. Even a quick email from a client to senior members of the firm giving credit for a job well done can be meaningful within the firm.
Roberta Liebenberg: GCs must continue to monitor their outside law firms and encourage them to meet diversity and inclusiveness goals, particularly during this pandemic. Research shows that the 2008 recession had a devastating impact on women and lawyers of color, and it took ten years for the percentages of women associates and African American male associates to return to pre-recession levels. Unfortunately, the percentage of African American women associates is still lower today than it was in 2009. In order to avoid a repeat of the last recession’s significant backtracking, clients must continue to demand diversity among their outside legal teams; that women and lawyers of color receive origination credits for their matters; and that women and lawyers of color play a leadership role in their cases and transactions. GCs have the ultimate power of the purse, and they should use their considerable economic clout to reward firms that promote diversity and conversely to take business away from firms that fail to do so.
Alex Rose: GCs are powerful questioners. When clients of law firms demonstrate that they care about and are prepared to ask the tough questions about diversity, firms are more likely to act. This goes beyond questions about policies and procedures and may include more practical questions about what firms are doing on a day to day basis and what the lived experience of people in the firm is. Ideally, clients should engage with the firm’s leadership team on these topics—not just the immediate lawyer they work with. Often clients also bring a unique perspective on diversity and can share their own initiatives and learnings. Clients also bring fresh ideas and inspiration to law firms on how we can partner with clients to do something new to move the dial on diversity and inclusion for the better.
In the 2020 Equity Project Study, 52% of GCs and senior in-house lawyers said they were entirely unaware of how their law firms award origination credit—a key metric of success and a basis for the enduring gender pay gap in law. How important is it for GCs to gain this understanding, and how can they become more educated?
Carolyn Lamm: The way origination credit has traditionally been awarded disparately impacts women and lawyers of color, as well as more junior lawyers. As recent surveys have revealed, this is partly due to the fact that women and people of color tend to inherit fewer client relationships and opportunities than their white male counterparts. The latter likely is due, in large part, to unconscious biases, the traditional make up of law firms, and remaining challenges to increase and foster diversity.
Because origination credit can affect who receives credit and career opportunities within a law firm, it is increasingly important for GCs to understand how origination credit is awarded and maintained over time. Improving this understanding can be an effective way to diversify teams and provide business development opportunities to women and diverse lawyers.
Additionally, if GCs become more aware of how origination credit is awarded and maintained over time, it also can strengthen the relationship between the client and the firm. Indeed, members of a team can become more involved in efforts to build the client relationship, produce high quality work, and expand the number of matters. Furthermore, transparency from outside counsels and genuine efforts to increase diversity will help align the interests and goals of law firms and clients, who are increasingly doing the same type of internal work.
My recommendation for GCs interested in promoting diversity and inclusion would be to demand transparency and policy changes from their outside counsels as needed. GCs can discuss the team on each of their matters and the allocation of origination credit to ensure recognition. GCs also can praise their outside counsel when they are committed to making concrete progress in diversity and inclusion in the legal profession. White & Case has received such accolades in the past, which serves as recognition for our hard work in this regard and an incentive to continue building more inclusive and welcoming teams.
Faith Gay: Understanding how law firms award origination credit and how it fits into the compensation structure is a direct way for GCs to assess an outside firm’s commitment to diversity and inclusion. This is especially important when GCs are considering firms or client teams whose gender balance doesn’t statistically align with the firm’s stated position on inclusivity, since certain methods of allotting origination credit can contribute to the gender pay gap and negatively impact attorney collaboration—and, by extension, client service.
Recognizing this, when my partners and I founded Selendy & Gay, we made the decision not to utilize origination credits as a standalone compensation metric. A person’s quality work on a matter, their leadership, their collegiality, their responsiveness to client needs also foster better client relationships.
Amy Frey: I think it is important for GCs to generally be aware of things like origination credit, but I would caution against focusing too much on one specific metric or catch-phrase, because a firm can be entirely objective and fair in how it awards origination credit and still not assess that award in the same way when making decisions about an individual lawyer’s promotion or compensation. Over the course of a representation, an attentive GC can learn a lot about how a firm values and rewards its deserving members by considering who is doing the day-to-day work on their case and whether that person is being acknowledged and rewarded for that work – whether this is apparent because the person receives a promotion, is given more face time with the client or stand-up time at a hearing, or simply is verbally acknowledged by the senior/relationship-partner to the GC.
I know of a particular instance where a female senior associate carried out the day-to-day work on a matter and most of the heavy-lifting of case development (tasks that are not always in front of a client or GC), and when the time came for the hearing, the GC – who had correctly deduced the roles and work of the legal team members – asked the senior partner why the female associate was not presenting. This led to a change and gave that associate an opportunity she would not have had otherwise, which itself is critical to career development, growth, and compensation.
In short, a GC who is interested in whether a firm rewards women as it rewards men would do better to note whether women are represented on their specific matters and whether it is apparent that those women are getting appropriate credit and recognition for the work they are doing. If they are not, speak up! In the end, firms will do what their clients want them to do.
Alexandra Rose is a partner at Clayton Utz in Sydney, Australia. She uses her commercial litigation skills to help clients to head off and solve problems, and has over 15 years' experience working with clients on the defence of significant multi-jurisdictional claims including class actions and product liability disputes. She has been recognized as a rising star in Doyle's Guide "Rising Stars – Litigation & Dispute Resolution”.
Amy Frey is a partner in the international arbitration practice at King & Spalding in Paris. She specializes in investment treaty arbitration, public international law and human rights law and represents clients with claims against foreign states arising from bilateral investment treaties and the Energy Charter Treaty. She has also been recognized as a Rising Star by Law360.
Carolyn Lamm is a partner at White & Case in Washington, DC. She regularly serves as lead counsel in high-stakes matters, including significant international arbitrations involving international corporations and sovereign clients. Alongside her legal practice, she is the Distinguished Faculty Chair at the University of Miami School of Law in the White & Case LLM program in International Arbitration, where she teaches International Investment Arbitration.
Faith Gay is a founding partner of Selendy & Gay. In a nationally recognized career spanning more than three decades, she has been lead counsel in over 30 jury trials and has successfully navigated bet-the-company investigations for scores of Fortune 500 companies. Chambers USA recognizes her as one of the nation’s leading litigators, citing “significant praise from sources for her work in high-stakes litigation covering commercial claims, white collar issues and matters of constitutional law”.
Maria Ginzburg is a partner at Selendy & Gay, focusing on complex commercial and financial disputes. She has handled civil cases in state and federal courts and in arbitration, as well as internal investigations and related regulatory proceedings before the SEC, FINRA and New York attorney general. She has recovered approximately $3 billion for her clients in residential mortgage-backed securities (RMBS) related actions.
Megan Jones is a partner at Hausfeld based in California, with a focus on recovering damages for companies who are victims of antitrust cartels for price-fixing, tying, restraints of trade and other competition violations. With 19 years of experience in antitrust class actions, she is trusted by courts to lead large and complex antitrust cases. She is known as a skilled negotiator when it comes to class action settlements, who is a “trailblazer” and is “highly respected from all contingents.”
Nicole Galli is a Managing Member of ND Galli Law LLC, where her practice focuses on commercial litigation, including intellectual property litigation and IP counseling, especially regarding trade secret protection. She previously spent over two decades in two AmLaw 100 firms. She is the Founder and President of Women Owned Law (WOL), the first organization dedicated to empowering, supporting and advancing women entrepreneurs in the law.
Roberta Liebenberg is a senior partner at Fine, Kaplan and Black in Philadelphia. She focuses her practice on class actions, antitrust and complex commercial litigation, and white collar criminal defense. She was the 2019 inductee to the American Antitrust Institute Private Enforcement Hall of Fame and has repeatedly been listed in the highest band level as one of the leading antitrust lawyers in the country by Chambers USA.
Stephanie Carman is Counsel at Hogan Lovells in Miami. She defends her clients in complex litigation or government enforcement actions, counsels them through internal or government investigations, and advises on regulatory issues. She has been recognized by Chambers, The Daily Business Review, Attorney at Law Magazine and SuperLawyers.
To read more articles like this, download the Issue 4 Burford Quarterly 2020