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Statements on Diversity & Inclusion 2020: A professional obligation

Click the image above to read the special section.

Click the image above to read the special section.

Diversity and inclusion have been front and center in discussions in law firms, bar groups,corporations and courthouses for years now.

While sometimes it feels as if the needle on the compass has not moved far, change in thinking has followed the discussions.

It’s clear that the “business case” for diversity and inclusion has been made. Clients demand it, said the Minnesota State Bar Association in a recent document.

The “value” of diversity and inclusion is also been established. It results in better decision-making and creates credibility and thereby benefits clients, it added.

The MSBA also adds a third prong to the discussion the professional obligation, part of the commitment to the rule of law.

“Without diversity and inclusion, our nation’s commitment to the rule of law will ring hollow, our system of justice will be in jeopardy, and our economic system will not only fail to thrive, it will be threatened by inequality and unfairness.

Incorporating diversity and inclusion into our profession also presents tremendous opportunities to enrich our careers, enhance our reputations, create new and lasting connections and friendships, and improve our profession and our community,” the statement says in part.

It was drafted by MSBA President Tom Nelson and Ann Anaya, chief diversity officer at 3M, and approved by the MSBA Council.

The Minnesota State Bar Association Diversity & Inclusion Council, now led by Alice Silkey and Athena Hollins, issued a strategic plan in July 2016, followed by a three-year plan in 2017. Its principal goals are to make the MSBA a model for diversity within all areas of the organization and to support the affinity bars.

Its job is to make diversity and inclusion a priority within the organization and the state and to provide communication within the MSBA and outside of it. It has three subcommittees — business case, leadership and communication.

Work is underway on a new strategic plan.

“Our members are very invested not only in the work of the Council, but also more broadly in advancing diversity, equity, and inclusion in the legal profession,” wrote Silkey in a letter to Minnesota Lawyer.

Hollins noted that the challenge is to address not only diversity and justice, but also the perception of lack of diversity and thus injustice.

“As stewards of justice we need to be diverse as possible,”

Athena Hollins

Athena Hollins

‘There are always voices accidentally left out’

Others in the legal community also contribute to the diversity movement.

Court of Appeals Judge Peter Reyes has shared his skills with the leadership council, as he has with numerous organizations.

He helps an organization define its mission and how to execute it through action steps. He says that there is a strong argument that the professionals serving a community should reflect its population.

He thinks that law firms and corporations need to avoid assuming that there is a dearth of “good” diverse lawyers and should focus on making the effort to find them.

Attorney Michael Fisco, managing partner of the Minneapolis office of Greenburg Traurig, agrees that in any representation of a client, different perspectives matter.

“As lawyers, we want to understand all of our clients’ business,” he notes.

Fisco also emphasizes the inclusion prong of diversity and inclusion. “Diverse lawyers want to be part of something. Diversity follows inclusion,” Fisco said. Sometimes we need to take an extra step to make inclusion happen, especially with colleagues who have relocated here from other states or countries, “but it’s got to be meaningful and come from the heart,” he said. People need to hear, “I would love to have you in our firm.”

(Fisco noted that it would be helpful to change the rule that a person can’t take the bar exam in Minnesota unless he or she has graduated from a U.S. law school or has practiced for five years. Other states have different remedies for regulating the admission of lawyers from foreign jurisdictions, he said.)

Al Coleman, managing partner in the Minneapolis office of Saul, Ewing, Arnstein & Lehr, said that diversity is “top of mind” at the firm. To be inclusive, he continued, means being thoughtful and mindful of the best interests of one’s colleagues, in way that aren’t necessarily obvious. It may be a no-brainer not to schedule meetings on religious holidays, for example, but may not be obvious not to make assumptions about a colleague’s family, he said. Don’t put people into boxes, he advised.

A good place to start, Hollins said, is to have as many voices in the room as possible, especially when creating a plan on how to address diversity. “There are always voices accidentally left out,” she said.

Michael Fisco

Michael Fisco

Integrated into all the firm’s processes

The legal profession’s commitment to the rule of law and justice should begin at home, said Minneapolis attorney Jerry Blackwell.

“[F]or all the good things it does, the legal profession is among the least diverse in the United States. While 72% of the U.S. population in 2010 was Caucasian, nearly 90% of all employed lawyers were white. Of the remaining lawyers, 5.3% were black or African American, 4.2% were Asian, and 3.2% were Hispanic or Latino. People of color continue to be underrepresented in law school and law firms, and especially in leadership positions. The legal profession remains a white, heterosexual male dominated profession, and the biggest problem with that is not diversity headcount, though diverse persons have to be present to matter, but the absence of diverse viewpoints in the rooms that matter for better, more innovative, solutions. Monotone representation yields monotone results in a multicultural, technicolor and high definition world,” he wrote to Minnesota Lawyer.

Blackwell also noted, “Improving diversity because it is the moral thing to do certainly received widespread acknowledgement but, in the end, didn’t fork much lightning — little change. It wasn’t taken sufficiently seriously as a business priority, at least it wasn’t handled like any business priority I’ve ever seen, overwhelmingly lacking in metrics, accountabilities, root cause analyses for shortcomings, and ties to compensation.

Diversity is not just a metric to be strived for; it is an integral part of a successful revenue- generating business. It is its own form of merit, Blackwell said. “The most effective organizations, in my view, are organizations that don’t simply use their diversity in order to have legitimacy with clients but use their diversity to increase the cultural competence of the workforce.

“The pinnacle in diversity programs perhaps is not to have a separate program at all. It is best to integrate diversity into all the processes of the firm, since factors undermining diversity have become well integrated and widespread over decades in many instances. Diversity then is a conscious consideration at any intersection involving allocations of resources, power, or opportunity.”

The legal profession’s commitment to the rule of law and justice should begin at home, said Minneapolis attorney Jerry Blackwell. (File photo)

The legal profession’s commitment to the rule of law and justice should begin at home, said Minneapolis attorney Jerry Blackwell. (File photo)

Support is available

There is support for lawyers and firms who want to address this problem, as illustrated by the work of the MSBA and other bar associations, affinity bars, and resources like Reyes. Twin Cities Diversity in Practice, formed in 2006 from the earlier Twin Cities Lawyers Group and Twin Cities Alliance for Diversity, is a nonprofit association comprised of the leading Twin-Cities legal employers “with the vision to create a vibrant and inclusive legal community and mission to strengthen the efforts of member organizations to attract, recruit, advance, and retain attorneys of color,” according to its website.

Its programs and initiatives include professional development, continuing legal education, forums to share best practices, networking opportunities, projects to promote the Twin Cities diverse talent nationwide and much more.

Among other things, it holds an annual Minnesota Minority Recruitment Conference to connect the largest legal employers in the Minneapolis and St. Paul metro areas with diverse rising 2L and 3L candidates from around the country. It invites small, medium and large firms; corporate law departments; and public interest, nonprofit and government entities to join MMRC and meet with diverse students. It also sponsors a 1L clerkship program for students from and outside of Minnesota.

Not thought police

A professional obligation is not the same as a disciplinary standard, said Susan Humiston, director of the Lawyers Professional Responsibility Board.

The issue comes to the LPRB in acts that are clearly antithetical to a welcoming and inclusive environment, such as racist or sexist conduct, sexual relationships with clients, and failure to supervise problematic conduct, she said.

Humiston referred to Rule 8.4 of the Minnesota Rules of Professional Conduct, which makes it unethical to engage in discriminatory or harassing behavior. She also noted that Rule 4.4 could come into play. It says a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

“We’re not policing thought or lack of action. But we do regulate acts that could be harassment,” she said. And, she added, “Our oath is arguably broader than what the ethics rules dictate.”

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