Incivility and a lack of diversity have been and continue to be a problem in the legal profession. Both civility and diversity are aspirational goals of the profession; neither are currently required by the Rules of Professional Conduct. Appealing to a lawyer’s higher purpose that these things will better the profession and society has not been successful.
For years, proponents have relied on the business case argument: civility and diversity make good business sense. For example, lawyers refer business to other lawyers, even opposing counsel, with whom they have positive and professional (as opposed to contentious) interactions And on the diversity front, research shows that companies with more women on the board statistically outperform their peers over time; other research shows that ethnically diverse companies are 35% more likely to outperform their peers.
And yet, the needle hasn’t moved much in the legal profession. Perhaps a twist on the business case argument is in order. Maybe we shouldn’t focus on performance or the bottom line of a firm but on its ability to innovate.
It is widely known that law firms need to do a better job of innovating to get and keep current with the times. Clients are demanding it. Technology is enabling it. Yet, lawyers and law firms lag behind other industries in innovating to provide better value to their customers.
Is it possible that increased civility and diversity are part of the secret sauce that will allow legal organizations to innovate?
For years, legal ethics writers have deplored the state of civility in the legal profession—especially among litigators. Incivility, or the propensity to equate aggressiveness with advocacy, was a driving force behind the Illinois Supreme Court creating the Commission on Professionalism in 2005.
In 2007 and again in 2014, the Commission on Professionalism conducted surveys of Illinois lawyers, attempting to measure the prevalence of incivility or unprofessional conduct. Although the surveys did not show an erosion between 2007 and 2014, the results were disappointingly similar. Most respondents view their peers’ behavior as professional, but 85% admitted they had experienced unprofessional behavior. In both surveys, the types of behaviors were clustered into three types: 1) prejudice (e.g., ageism, racism or sexism), reported by 9%; 2) rudeness (inappropriate interruptions, sarcastic or condescending attitude, swearing, verbal abuse or belittling language) reported by 38%; and 3) strategic incivility (playing hardball, e.g., not agreeing to reasonable requests for extensions, inflammatory writing, frivolous use of pleadings, misrepresenting facts/negotiating in bad faith) reported by 51%. This category of behavior twists legal norms to gain the upper hand and undermines the integrity of the legal system. The behavior of Illinois lawyers is unlikely to be an outlier; anecdotal evidence says this behavior is typical across the United States.
The negative consequences of incivility are well documented in the survey responses. Lawyers readily acknowledge that incivility costs clients more money, undermines efficient resolution of their legal matters, and harms public confidence in the judicial system. These are heavy indictments of a profession whose core mission is to deliver efficient and equitable legal services that promote justice and uphold the rule of law. In addition, lawyers report that incivility makes the practice of law less satisfying. Recent surveys of lawyers’ substance abuse and mental health document this conclusion. Finally, and most germane here, slightly over half of the lawyers draw a connection between incivility in the profession and its lack of diversity.
The lack of diversity in the legal profession is also well-documented. According to the American Bar Association (ABA), since 2000, the percentage of minority law school graduates has ranged from 20% to 30%, while women have accounted for 46% to 49% of graduates, with the highest point in the mid-2000s. In 2018, women comprised 51.4% of summer associates, minorities accounted for 35%, and 20.8% of summer associates were minority women. So far, so good in terms of women and minorities entering the profession.
However, taking a wider look at the profession, the diversity needle appears to be moving extremely slowly and not evenly.
According to the National Association of Law Placement (NALP) 2018 Diversity Report, the representation of women and minority law firm associates experienced a small gain over 2017 and the percentage of LGBT lawyers reached all-time highs with the percentage of LGBT summer associates at firms of more than 700 hundred lawyers reaching 6.4%. Continuing the slow trend over the two and a half decades that NALP has been compiling data, representation of women and minorities among partners in law firms (at 23.4 and 9.1% respectively) is an uptick of seven-tenths of a percentage point over 2017.
This minimal growth is uneven. Among both the associate and partnership ranks, most of the growth in minority lawyers is due to Asian or Hispanic males. Representation of Black/African American associates remains below its pre-recession level, and at 1.8%, the representation of Black/African American partners has barely changed since 2009. At just over 3%, minority women continue to be the most underrepresented group at the partnership level, with Black/African American women least represented.
The presence of LGBT lawyers generally has been trending upward. However, over 55% of the LGBT lawyers come from just four cities (New York City, San Francisco, Washington D.C. and Los Angeles).
Lawyers with disabilities—of any race or gender—are negligible in number. At both the associate and partnership level, about one-half of one percent of lawyers report having a disability. Although NALP has been collecting data on lawyers with disabilities for years, this data is much less widely reported than data on race, ethnicity, and gender.
Many anecdotally speculate that incivility discourages women and minority lawyers from staying in the legal profession. In the Commission’s surveys of Illinois lawyers, 51% of Illinois lawyers reported that a consequence of incivility is that it discourages diversity in the profession. This belief is mirrored by evidence that incivility disproportionately affects women and other under-represented minorities in the general population.
This chart from the 2017 Civility in America survey shows that the groups of people most likely to experience incivility are blacks, with 77% reporting they experience incivility often or sometimes, immigrants at 73%, and women at 72%. These are the target groups for increasing diversity in the legal profession.
Similarly, the Workplace Bullying Institute conducted research in 2017 asking respondents for their personal experiences in the workplace with abusive conduct that is threatening, intimidating, humiliating, work sabotage or verbal abuse, and to identify the perpetrator and the target. The results showed that 70% of the bullies were male and 65% of their targets were female. The 30% female bullies targeted women by 67%. The races most affected by the bullying were Hispanic, African American and Asian.
The 2018 Civility in America survey results showed a connection between incivility and a lack of diversity in the workplace. Those who characterized their workplace as being diverse and inclusive to a much greater extent also reported their workplace as civil. In contrast, respondents in uncivil workplaces were twice as likely to describe their employers as weak on diversity and inclusion. Incivility seems to fester and foster in less diverse environments.
A civil and diverse workplace is a respectful workplace—one that does not tolerate bullies, is not dictatorial in management style, and includes many diverse viewpoints. An inclusive culture is one where individuals are valued for their unique personas and perspectives and are encouraged to share them. Civility and diversity together create an inclusive and innovative culture.
Research by Deloitte is helpful here. In Waiter, is that inclusion in my soup? A new recipe to improve business performance, Deloitte unpacks the difference between diversity and inclusion and explains inclusion is an active process of integration. This goes well beyond the tick-the-box checklists and guides to creating diversity metrics and programs. Inclusion from the perspective of the newcomer to an organization is a sequential process with three distinct steps that build on one another:
The report notes, “this is a story of spiraling benefits because we also found that confidence and inspiration drive innovation, customer service, collaboration, and engagement. So, this X factor of “confidence and inspiration” has the capacity to lift business performance even beyond our fundamental findings of significant increases in business performance through diversity and inclusion” (emphasis added). Similar conclusions were drawn from two years of research showing that organizations that embraced diversity and inclusion in all aspects of talent development were 1.8 times more likely to be change-ready and 1.7 times more likely to be innovation leaders in their market.
The lesson here is building an inclusive workplace leads to innovation. The cultural change needs to be driven by the managing partners or leaders of the organization. The goal is an inclusive environment where individuals are 1) treated fairly and respectfully; 2) valued for their uniqueness yet connected to the group, and 3) empowered to speak up and inspired to do their best. The result may be not only inclusion but innovation.
Jayne R. Reardon | Law Practice Today | July 12, 2019