How Can We End the “Pinkwashing” of Biglaw?

By Gemma L. Descoteaux —

A quick perusal of the websites for the Am Law 200 law firms shows that big firms are dedicated to the advancement of women.  They sponsor women’s events, host gender equality initiatives, and hold large women’s conferences. Yet, when you look behind the website fluff—what I call the “pinkwashing” of Biglaw—the data do not support the assertion that any material progress has been made.  Most firms have created women-led initiatives to tackle the problem of the dismal number of women in the upper levels of the legal profession.  These affinity groups may have made people feel better, provided echo chambers to air grievances, or provided the illusion of progress, but they haven’t moved the needle.

Since at least 1991, women have made up nearly half of law school graduates and new associates.  And yet, women have not materially advanced inside major law firms.  Here are the data at a glance, based on the 2015 Report of the Ninth Annual National Association of Women Lawyers Survey on Retention and Promotion of Women in Law Firms:

At this rate, women equity partners will not reach 30 percent until 2081.  The typical firm has 2 women and 8 men on their highest US-based governance committee and the typical female equity partner earns 80% of what a typical male equity partner earns (down from 84% in the 2006 survey).  It appears as though gender disparity does indeed live despite all protestations to the contrary.

We know what we are doing isn’t working, but what can we do about it?  How do we make real changes, not just “pinkwash” over the issue, and actually begin to achieve gender equality in law firms?

First, let’s be clear, the Am Law 200 law firms are filled with absolutely brilliant minds, capable of absolute greatness–great research, drafting, argument, strategy and execution.  I am 100% confident that if these great minds set a goal, there is nothing that can stop them from reaching it. It is time that gender equality receives the focus of those great minds.

Change takes commitment from senior management.  Senior management must articulate the vision of gender equality including setting measureable, achievable goals.  Nothing (okay, virtually nothing) in big business or big law happens from the bottom up.  And it certainly doesn’t happen without the full support of those at the top.  Would Apple have brought the iPhone to market without the full support of Steve Jobs?  Would Facebook be a household word without the determination of Mark Zuckerberg?  Would Tesla be the visionary car of the future without Elon Musk?  Each of these leaders had a clear vision and objective and created a culture of accountability in their respective organizations.  How do we apply that to Biglaw?

Set Macro Goals.  In the words of Stephen Covey, “begin with the end in mind.”  What would we consider a success?  Where are we today?  And where do we want to be in 1 year? In 3 years? In 5 years?  In 10 years?  For example:  Would 30% female equity partners in 5 years be a success?

Gather Data.  What are the key metrics that you intend to measure (e.g. hours billed by women per case, per deal, per section, per billing attorney)?  Once the metrics are established, gather as much related data as you can for the current and most recent year(s) to establish a baseline from which to measure progress.

Determine Stakeholders.  Who are the key stakeholders inside your firm?  At a minimum, the key stakeholders need to include top members of management, including the CEO/Chair, the section heads, and many of the largest rainmakers.  There must be a clear commitment from those with power and authority.  They must be involved in the goal setting and be fully on board.  If the CEO/Chair is not behind the initiative, consider whether it’s worth pursuing.

Establish Process. The person responsible for the process must be one of the most senior stakeholders in order for the process to be effective.  How will inequities be resolved?  For example, if the metric you are measuring is billable hours per case or deal, you will need to address work flow, and establish a process to examine how matters, both cases and deals, are staffed.  Who will review staffing metrics to ensure gender equality and that it’s not the same “team” from deal to deal or case to case?

Keep Score.  How do you know if you are winning or losing?  You keep score, of course!  Humans are all competitive by nature, and lawyers are no different. The goals should be published, progress measured regularly (e.g. semi-annually or annually), and the progress reported. The data don’t lie. What you measure, you can understand and strive to change.

Accountability—Carrot or Stick.  What is the best mechanism to hold the stakeholders accountable for performance of the goals that have been set? In recent months, Facebook, Hewlett-Packard and MetLife have all announced initiatives that will require more diversity among their outside counsel with firms who do not meet the diversity goals risking losing fees or even whole engagements.  Similarly, if law firms actually want to attain gender equality, there should be consequences for failure to achieve the stated goals.  Would a penalty achieve the appropriate level of accountability? Or a bonus pool?  What makes sense for your organization?

On April 27, 2017, I had the privilege of hearing Lieutenant General Flora Darpino speak on law and leadership.  General Darpino is the 39^th Judge Advocate General of the U.S. Army and the first woman to hold that position since the first Judge Advocate General was appointed by George Washington in 1775.  General Darpino spoke of deploying to Desert Storm, recalling the wisdom of her then-commanding officer as he was assembling his troops for deployment.  Her commanding officer emphasized that it was critically important to always deploy your best and brightest when going to war—and that it was his responsibility as commanding officer to “trust, but verify” that those under his command were deploying the best and the brightest, both men and women.

If men and women inside law firm leadership work together, apply similar strategies, deploy their best and brightest, work to eliminate “pinkwashing,” and institute a substantive, measurable commitment to achieving material progress towards gender equity—I am confident that we will be amazed at the results.  I cannot wait to see what the future holds.

About the Author

Gemma Descoteaux, shareholder at Polsinelli, is a seasoned and practical business partner to clients as they strategically merge, acquire, divest, collaborate and align within the marketplace. She combines her 12 year business background in advanced technology with nearly 18 years of legal experience to work with her clients as they strive to achieve their business, strategic and financial objectives.

She represents buyers and sellers in public and private mergers, acquisitions and divestitures; participants in complex domestic, international and cross-border joint ventures and partnerships; chemical manufacturers in a wide range of commercial matters and post-acquisition integration; providers and customers of outsourcing services; and companies who are in need of sound corporate commercial counsel in a wide range of industries, including chemical manufacturing, technology, steel manufacturing, business process outsourcing, entertainment/news media, pharmaceuticals/biotech, health care, transportation and energy.

Gemma has a unique and practical perspective on legal matters as a result of her work on a seconded basis at Olin Corporation (negotiating and drafting commercial agreements, managing a large inter-disciplinary team, and coordinating acquisition integration related matters), her work as a contract negotiator on the business side at Texas Instruments (negotiating advanced development as well as intermediate and high volume production contracts and complex joint ventures), her work in house at EXE Technologies (providing commercial counsel and IPO counsel), her work on a seconded basis at Computer Sciences Corporation (managing M&A and negotiating strategic alliances), and at ACS (handling securities matters and negotiating M&A transactions).