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Where There's a Will, Is There a Way?

despite gains, the legal profession still struggles to get the "minor" out of minority.

Minority out of Minority
Photo by Mick Wiggins

Whether you are an African American attorney such as Walter Prince '74 with years of law firm experience or a young Cuban American woman such as Ileana Espinosa ’03 at the beginning of her legal career, if you are a minority practicing law in America, chances are your experiences and paths to success remain quite different from those of your majority counterparts.

In a field where advancement to partner is a grueling process, law firms say they are struggling to retain minorities. And although the profile of law school graduates now reflects the varied ethnic and racial backgrounds of the US population, keeping minorities on staff long enough for them to become partners is a daunting challenge, they say. As a result, just 4.6 percent of all partners at US law firms are people of color, up from 2 percent in 1999, according to the National Association of Law Placement (NALP). In fact, regardless of race, the path to partnership is such an exhausting eight-year process that 8.3 percent of all associates quit before finishing their first year. Just over 59 percent resign after the fifth year.

The attrition rates are even higher for minorities, says NALP. Its 2000 report, based on a survey of more than 5,500 US attorneys, reveals that nearly 13 percent of minority men and 12 percent of minority women leave after the first year. Within five years, just over 70 percent of minority men and 74 percent of minority women leave to work for corporations, as professors, or for government institutions. Others join smaller law firms.

David Wilkins, the Kirkland & Ellis Professor at Harvard Law School and the director of the school’s Program on the Legal Profession, has been studying minority lawyers for years. He says legal professionals of color must have access to the right mentors, the right training, and good work assignments in order to hone their skills and advance. But oftentimes, they are viewed in stereotypical ways that inhibit their success. Wilkins notes that they are scrutinized more than their white peers and are perceived differently.

African Americans are viewed as intellectually inferior and must constantly prove themselves; Latinos are seen as hot-tempered; Asians are regarded as intelligent, but passive. “Minorities have a harder time getting access to good mentoring and good work assignments,” says Wilkins. “But talented minorities have lots of opportunities to move. In fact, corporations are trying to recruit the same mid-level minority associates that the law firms are trying to keep. At the same time, the firms need to recognize that people leave because they do not have the same pathways to success. So, there is a push and pull that makes it very complicated.”

“It’s much more complicated than just race and the firm,” agrees Garland Stillwell ’88, senior associate at Pilsbury Winthrop Shaw & Pittman LLP in Washington, DC, and a participant in the recent BC Law Black Alumni Reunion Conference, “Forty Acres and a Mule: Affirmative Action Now.” At partnership level, he says, “there is extreme pressure to justify your existence,” in terms of bringing in a well-developed client base. And many minority attorneys find themselves excluded from the social networks in which client relationships are fostered.

Speaking at the same conference, Steven Wright ’81, partner in the corporate department of Holland & Knight LLP in Boston, said that the current “free agency” model of partnership, in which “you strike a deal based on what you bring to the firm and what they need,” has made the transition from associate to partner much more challenging than it was when he entered the profession, and that many men and women of color are leaving law firms because they see other opportunities in the corporate and financial world that are “more compatible with the quality of life.” But he expressed some optimism that pressure from corporate clients, for whom diversity is becoming an economic imperative, will force law firms to update their “antiquated mentality,” and noted that most of his own clients are people of color.

Texas attorney Kathleen J. Wu, a partner at Andrews Kurth LLP whose online comments on such issues are widely read, notes that minorities who “give their all to their firms” have had to work harder than their white male peers for the same recognition. “Like it or not, if you’re a woman or a minority, you’re going to be judged by a tougher standard than the white males at your firm,” she says.

Not surprisingly, these factors affect retention. Nationwide, minorities represent 15.6 percent of all associates and about 20 percent of all US law graduates. Yet, slightly more than 3 percent of legal professionals are Latino, up from 1.5 percent thirty years ago. By contrast, about 6.5 percent of the nation’s legal professionals are Asian, up from 1.3 percent in 1975. African Americans represent 4 percent, a 2 percent increase since 1975, says the Equal Employment Opportunity Commission. Released in 2004, its report found the most pressing problem facing minority lawyers was getting promoted from associate to partner.

Nevertheless, some law firms are taking matters into their own hands. Realizing that their future success may depend on big corporate clients who wish to align themselves with diverse firms, they are trying to attract, retain, and promote minority and women attorneys. Even big corporations like Wal-Mart Stores, Inc. and Sara Lee are taking action.

Wal-Mart has refused to send work to some law firms because they lack diverse staffs. Sara Lee’s general counsel, Roderick A. Palmore, has reportedly urged lawyers at several hundred large companies to cut ties with law firms that show no interest in diversity.

“I would say that the business reasons for promoting diversity are compelling,” says Steven P. Rosenthal, co-managing partner at Mintz Levin Cohn Ferris Glovsky & Popeo PC in Boston. Last year, his firm made a bold statement when it hired a dozen senior attorneys to staff an employment practice in Washington, DC.

The attorneys include nine African Americans and one Latino. Then, Mintz Levin promoted two Asians to partner in its Boston office, increasing the number of partners to thirteen, from four. Today, twenty-two or just over 10 percent of Mintz Levin’s 206 partners are minorities. Says Rosenthal, “We have opened an office in San Diego and there is important diversity work there as well. Diversity is part of our business plan.”

Some firms are establishing programs designed to mentor women and minorities. Others are putting diversity specialists or managers on the payroll and making them responsible for recruiting and retaining lawyers of color. In all, 46 percent of seventy-six law firms surveyed say they have hired a diversity specialist or manager and more than 90 percent have created a diversity committee, reports the National Law Journal.

Walter Prince, an African-American partner at Prince Lobel Glovsky & Tye LLP in Boston, conceded there are barriers, but says individual skills and personal effort as well as assistance from the right mentor can make all the difference. “I do not think there are any challenges in this profession that you cannot overcome, but I also know that I was very fortunate to have a great mentor,” says Prince.

In fact, minority lawyers contend that mentors who understand the unwritten and often unspoken rules that define how to handle power struggles at work are invaluable. So, too, are mentors who have access to informal legal networks, they say.

Certainly, Jeffrey Hsi, former president of the Asian Lawyers Association of Massachusetts and a partner at Edwards Angell Palmer & Dodge LLP of Boston, can attest to that. A chemist, Hsi credits a former mentor with making him aware of new opportunities in intellectual property law. He says his mentor, a senior scientist, encouraged him to apply to a legal program that was offering to pay for scientists to study law free of charge, with the proviso that they had to remain with the firm for a designated period of time.

Roberto Braceras, a partner at Goodwin Procter LLP in Boston, feels it is important that young lawyers of color seek out and develop relationships with legal professionals they admire and respect inside—and outside—their law firms. Braceras spoke recently at a retreat organized for first-year minority law students at Boston College Law School. “I always tell associates that they cannot rely solely on a firm’s assigned mentor,” Braceras says in an interview. “They must find their own.”

That was certainly the case with Prince. Support from a BC Law alumnus and former mentor, the late Massachusetts Judge David Nelson ’60, was an important factor in his own success. “Judge Nelson took an interest in me and helped me get into law school,” Prince recalls. “He was one of the first black law partners in Massachusetts. He was a young, upstart African American from Roxbury and when he ran for the ninth Congressional seat, I worked for his campaign.”

After the campaign ended, Prince went to see Nelson and talked about his interests and goals. Nelson suggested he go to law school and then recommended he apply to Boston College Law School. Later, Prince decided he enjoyed litigation and accepted a position with a public defender office in Roxbury, later becoming an assistant US attorney for the district of Massachusetts. He left that to open a small law firm with a friend. Then, in the mid-1980’s he became general counsel to the MBTA, remaining there until 1988.

A former president of the Massachusetts Black Lawyers Association, Prince has been an adjunct professor at BC Law for many years and serves on the Board of Overseers. Over the years, the judge was an ally as Prince worked to establish his legal career.

Today, Prince advises law students to think carefully about what they wish to accomplish with their law degrees. He says that after leaving the MBTA, he returned to private practice and joined a group of friends who had started a law firm called Peckham Lobel Casey & Tye. Two months later, Prince’s name was added.

“I had a chance to go to some of the big firms, but I realized that the money I could generate in fees would not amount to a significant figure,” says Prince. “I would have become a senior associate and would have been doing someone else’s work. I did not want that. So, I went to a smaller place where the business I generated would have more significance. That was my strategy, and it was the best decision I could have made. They felt I offered some cachet and I felt I had an opportunity to grow.”

Renee M. Landers ’85, an associate professor of law at Suffolk University Law School and former President of the Boston Bar Association, says she clerked for a federal judge who helped broaden her horizons. “My most significant mentor was [the late] Edward F. Hennessey ’61, former chief justice of the state Supreme Judicial Court,” she says. “He was incredibly supportive and he appointed me to a committee that studies gender bias in the court system. That opened my mind to a whole range of issues. It has even influenced how I teach my courses, and it brought me together with huge numbers of people in the legal profession whom I would never have known.”

Nevertheless, Landers says the mentoring programs established by many big law firms are not always effective. “The pressure to bill hours is so immense, but mentoring takes time,” says Landers. “So, a lot of times it just doesn’t happen. Law firms don’t seem to have the time anymore to bring people along of any race. The impact of that is particularly hard on women lawyers of color.”

As recently as this year, according to a report by the American Bar Association (ABA), minority women attorneys said they felt excluded from formal and informal networks, were isolated or marginalized, and had been subject to demeaning comments. The ABA said when it asked the attorneys to grade their career experience, white males gave their career experience an “A,” white women and minority males said “B,” and minority women graded their experience “B minus” or “C plus.”

Minority women also said they were more likely to receive “less choice” assignments, with fewer billable hours. Just 46 percent of the minority women said they met the billable hourly rate of 1,800 to 1,900 hours per year. By contrast, 53 percent of minority males, 59 percent of white women, and 58 percent of white males reported meeting the yearly rate of billable hours.

Kathleen Wu, who worked extremely long hours to become partner at her Texas firm and did not have a mentor, says she made sure that she was the “MVP on every project I worked on.”

“Minority lawyers need to recognize that assumptions and stereotypes exist and they should work to overcome them,” says Wu. “The best antidote to racism is just being an extraordinarily competent lawyer. Is it unfair that you have to give 120 percent? Of course, but you’ll also be a better lawyer.”

Ileana Espinosa is a young attorney of color who believes minorities must assume some responsibility for trying to create more diversity at work and in law school. The twentyeight- year-old is a fourth-year associate at Katz Barron Squiterol Faust in Miami, Florida.

She is involved in mentoring programs that encourage children and teens to stay in school and she mentors law students. “There were only a few Hispanics at Boston College Law School, but the support there was tremendous,” says Espinosa, who was president of the Law Students Association.

She advises young lawyers of color not to wait for a mentor. “The old boys’ club still exists,” says Espinosa. “But that doesn’t mean you shouldn’t accept challenges. Just apply and impress. Then, if you cannot change the way things are, go someplace where they will appreciate you.”

Diane Lewis is a business reporter for the Boston Globe.

A Dilemma That Won't Go Away

In 1996, BC Law graduated twenty-four African Americans, a record for the school. The following year there were twelve, and the Law School has struggled ever since to get back to that peak. Meanwhile, formalized affirmative action programs have been under siege in the courts. In the wake of two United States Supreme Court cases in 2003, Grutter v. Bollinger and Gratz v. Bollinger, and the continuing threat of litigation designed to end affirmative action initiatives, the Black Alumni Network coordinated a symposium to analyze the current situation and explore strategies for increasing the numbers and success of people of color, and specifically of African Americans, in the legal community. Stacy Best ’95 organized the event with the support of Professor Ruth-Arlene Howe ’74 and Associate Professor Anthony Farley.

The symposium title, “Forty Acres and a Mule,” explained keynote speaker Charles J. Ogletree Jr., refers to an event that took place just before the Civil War. General Sherman promised a group of former slaves that if they would fight for the Union cause, and if the Union defeated the Confederacy, they would each be granted “forty acres of tillable land,” in reparation for their years of slavery.

“We never did receive those forty acres,” said Ogletree, who is the Jesse Climenko Professor of Law at Harvard Law School. Even the promise of Brown v. Board of Education in 1954, which Ogletree called “the high water mark of the [Supreme] Court’s jurisprudence on race,” and was widely held to signal a sea change in America’s way of thinking about race, was undermined by the Court’s inclusion of the words “all deliberate speed” (i.e., no speed at all) in a second decision calling for the end of school segregation.

After decades of, at best, lukewarm endorsement of affirmative action, Ogletree warned, there is now a real danger that the Supreme Court will “take away the forty acres and a mule that we don’t have,” when it hears on December 4 the cases of two voluntary school integration programs, in Seattle, Washington, and Louisville, Kentucky, in which “racial balancing” programs are being challenged by white parents as unconstitutional. “This is our Brown,” said Ogletree, calling on participants to reaffirm their commitment to the “American creed” of justice for all.

Ogletree’s themes resonated throughout a series of panel discussions and focus groups. At every stage, from law school admissions to the achievement of partnerships in law firms, participants identified substantial barriers to advancement for people of color.

Suggested remedies ran the gamut from incremental, individualized approaches such as careful choice of law firms and mentors, to a radical challenging of the institutions of the dominant culture. On the positive side, Paul Murphy of Foley Hoag LLP noted that “the color of diversity is green,” as major corporate clients increasingly insist on being represented by lawyers of color.

The unfulfilled promise of forty acres and a mule, said Professor Howe in a telephone conversation following the symposium, is a challenge to BC Law School to live up to the vision that spurred former Dean Robert F. Drinan, SJ, to actively recruit African Americans to attend the school in the mid-1960s. As a next step, she said, the symposium recommendations will be reviewed and edited for circulation to participants, and the debate will continue at a meeting in the spring of 2007.

—Jane Whitehead