How to speed up diversity in law

It's a fact that racial minorities are under-represented in law firms. We also know that women lawyers, who tend to assume a greater share of domestic and child-rearing responsibilities, are more likely to interrupt or slow down their career progression. This has been exacerbated by the Covid-19 pandemic, which has threatened to undo decades of economic progress for women, particularly among minority groups. Visible minority women in the legal profession face the twin challenges of raising families and dealing with unconscious biases as they navigate workplace environments.

Multiple studies have recognized that diversity, equity and inclusion (DE&I) are key drivers of economic performance. A growing number of law firms and judicial institutions are acknowledging this by taking steps to promote DE&I in general within their ranks. But what is missing is a consistent and coordinated effort in promoting, measuring, and tracking DE&I to achieve further progress, particularly for racialized women.

Justice organizations have begun doing their part. The Canadian Bar Association (CBA) has openly acknowledged a lack of diversity in the legal profession. Provincial law societies have adopted a soft law enforcement approach by providing webinars, sets of guidelines, recommended policies for employment to encourage inclusive workplaces, and added a mandatory module about diversity in their professional development requirements. Similarly, the CBA offers resources to help firms adopt aspirational goals and set benchmarks for hiring and promoting visible minorities. It recommends adopting a "value-based" approach towards promoting diversity within firms.

Some law firms have adopted a "value-based" approach to promote diversity in their leadership strategy. They offer training in mitigating unconscious bias for their senior leaders. Certain firms have worked towards transparency in their hiring by using standardized interview questions. Others have pledged to the BlackNorth initiative to improve the representation of Black lawyers in their ranks. A small number of firms have opted for a more formal strategy of allocating work aimed at improving career advancement opportunities for minorities. However, there are no clear strategies to help promote racialized women, who are also dealing with difficulties as women in the legal profession.

The above strategies are a step towards change, but challenges remain. For instance, the promotion policies may lack transparency, and strategies are needed to address mentorship and sponsorship of visible minority women within firms. Without proper mentorship, members of this group often struggle to promote themselves and advance their careers. They risk getting frustrated in their climb up the career ladder and may ultimately decide to pursue other career opportunities outside the law firm. This in turn reduces the talent pool of racialized women for senior roles within the organization.

Law firms should consider following approaches similar to the ones taken to promote diversity in leadership in Canadian corporations. Implementing talent management and succession plans can be used to promote under-represented groups and increase the talent pool of diverse candidates.

Another approach to encourage change would be to financially incentivize firms and their leadership to promote diversity, such as tying executive bonuses and compensation to meeting specific targets. In a more interventionist approach, a government-appointed regulatory body could impose quotas on law firms requiring them to meet specific diversity metrics. Some of the challenges associated with this latter approach include adding a reporting burden on law firms, questions about jurisdiction, and the consequences for law firms not meeting these quotas.

The business structure of the traditional partnership model in law firms is similar to that in venture capital (VC) firms, which have been criticized for a lack of diversity in their ranks, but who have for the most part resisted change. Alternative business structures (ABS) for law firms could remove organizational barriers in the traditional partnership model and increase diversity. ABS permit ownership and management of law firms by non-lawyers. This could enable the creation of an outside board of directors, similar to a publicly traded company, to oversee management of the firm and promote a culture of DE&I.

The re-organization of law firms under ABS could also alter the regulation landscape of the law profession from self-regulated to governmentally regulated. In this case, law firms might become subject to legislation similar to the Canada Business Corporations Act (CBCA) which requires diversity disclosures from all federally incorporated companies.

Irrespective of the various approaches to promoting DE&I, the first step is for provincial law societies to collect and track law firms' diversity data, which remains largely inconsistent. In an incentive-based approach, firms could be benchmarked against diversity metrics. Those which meet or exceed the set targets could be offered public commendations or recognitions.

At present, law firms and law societies have begun to acknowledge the diversity gaps within the legal profession. Some have launched programs to address the issue, but their efficacy is still uncertain, for instance whether they will lead to an increased representation of minority women in senior positions. 

Workplace engagement and promotion of under-represented groups such as racialized women in law firms would be both economically beneficial and manifest societal fairness. This is particularly important in a country like Canada, which is experiencing a shift in demographics created by its immigration policies.