Client-Driven Racial Quotas

Orin Kerr points us to an article at law.com:

In a pact brokered by the New York County Lawyers’ Association, more than 60 law firms have agreed to tell their corporate clients the composition of assigned legal teams by race, gender, ethnicity and sexual preference.

For several years, clients have asked law firms to sign statements in support of diversifying the legal profession. But with the formal agreement, firms have volunteered to put hard numbers behind their noble aspirations. According to the pact, “law firms should not object to requests by their corporate clients [to] report the number of hours devoted to the clients’ matters by minority lawyers.”

It’s nice that clients don’t want to employ either bigots or those who, even by lack of effort, have failed to overcome a legacy of discrimination.

But immediate consequences are clear, said Robert L. Haig, a partner at Kelley, Drye & Warren, one of the first large Manhattan firms to sign the agreement.

“When that number is put on the table and it’s a small number, then the great enthusiasm for diversity is a little suspect. The client might say, ‘We can’t hire you for the following year,’” Haig said in an interview. “Right then, that law firm is going to change. They’re going to do what they have to do in order to be retained again and again.”

He added, “This is economically driven, and that’s what makes it powerful.”

Haig, a former president of County Lawyers, the nation’s first bar association to admit minority attorneys, was one of about 30 attorneys who formed a County Lawyers task force on diversity. The effort was launched in 2000 and headed by Juanita Bing Newton, administrative judge of New York City Criminal Court and deputy chief administrative judge for Justice Initiatives at the Office of Court Administration.

But suppose the shoe were on the other foot? What if the clients wanted low numbers of minorities? Then we’d all be revolted. The parallel is far from perfect: excluding minorities is illegal and immoral; demanding their inclusion is legal and praiseworthy. But is the mechanism appropriate?  In general I’m in favor of people voting with their buying dollar to support suppliers whose values they share, and to avoid sellers with bad values even when they have good things to sell.

But I’m also instinctively uncomfortable with anything that smacks of racial quotas. Yet it is undeniable that law firms, especially big corporate firms, have not done everything they could to diversify. Some of the older troglodytes even seem to believe that the clients may harbor suspicions of minority lawyers.  So it’s nice to see pushback from the clients.

And yet.

[Original draft 5/13/2005.  As part of my blog redesign, I’ve been going through draft blog posts that somehow never made it to publication. This is one of them.]

2011: Subsequent research by one of my colleagues suggests strongly that big clients, at least, really couldn’t care less about diversity among their lawyers; big firm clients may talk a great deal in public about demanding it, but it doesn’t even show up on their general counsels’ list of important factors determining law firm choice when speaking in private.

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