The Path Forward: Creating Sustainable Change in Today’s Diversity & Inclusion Landscape

By Scott Pacheco, marketing and communications manager at Lerch, Early & Brewer, and Tara Marshall-Hill, marketing manager at H5

When protests against racial injustice gained traction after the murder of George Floyd, many law firms and legal marketers entered into a period of self-reflection and engaged in overdue conversations. On September 2, we brought together four legal industry professionals with diverse personal backgrounds to continue the conversation about where we were, where we are now, and how to create sustainable change. Joining in the discussion were Bendita Cynthia Malakia, global head of diversity and inclusion at Hogan Lovells; Jean Lee, chief executive officer and president of the Minority Corporate Counsel Association (MCCA); Kathryn Holmes Johnson, director of marketing and communications at Sterne, Kessler, Goldstein & Fox; and Wiley Rein partner Anna Gomez.

First, tell us a little about yourselves.

Bendita Cynthia Malakia: I'm the global head of diversity and inclusion at Hogan Lovells. Previously, I practiced law for nearly a decade, mostly development finance focused on Africa, Latin America, and the Caribbean. I've spent time both in the large law firm, and as in-house counsel at two global financial institutions, and I started a diversity consultancy. I feel like I've seen diversity and inclusion sitting in multiple seats.

Jean Lee: I am the CEO and president of the MCCA. I've been in this role for about four and a half years. Before going to law school, I did my Master's in social work, and was a licensed social worker for many years, focused on juvenile rights. I worked for the Legal Aid Society, as well as a program called ARMI, Association of Rehabilitation of the Mentally Ill, which is no longer around. I was inspired to go to law school because of the social injustice I saw as a social worker. Like Bendita, I also worked in financial services. Diversity, equity, and inclusion is my life. It's part of my journey as a first-generation immigrant and as a woman of color. And now, leading this organization, it is something that everyone says I'm passionate about. I don't really think of it as passionate. It's who I am every day. So if I live passionately every day, that's what I do.

Kathryn Holmes Johnson: I'm the director of marketing and communications at Sterne Kessler. I was actually at this firm 15 years ago when I stumbled into legal marketing. I held different positions at big law, more geared toward communications, and then was recruited to come back to the firm five years ago, and I've been here ever since. In the legal arena I've always been, in some instances very formally, involved in diversity initiatives, just by virtue of my interest and experience and what I would bring to the table. And in other instances, less formally providing back channel support. Prior to coming into legal, I had a different scope of marketing communication generalist type experiences, which on its face might not look particularly diversity-related. However, I did work at the United Negro College Fund for a couple of years, focused on historically Black colleges and universities.

I also worked at the Boys and Girls Clubs of Boston serving underserved youth facing challenges across the city from a wide variety of diverse backgrounds. I worked in the banking industry specific to Community Reinvestment Act enforcement, where I was working for an institution that was under a consent decree with the Department of Justice because of a failure to provide services equitably to all communities. And then I worked for 10 years in Arlington County Parks and Recreation where there were a lot of challenges serving a very diverse clientele across the county. One particular program that was under my purview was geared toward the immigrant and refugee communities, helping them acclimate and get settled into American life. So, I've seen diversity through service and through a whole kind of spectrum of issues. I'm pleased to be able to bring that to the table.

Personally, I sit in what most would consider a place of privilege, and that's something I focus on. I remind myself that I'm in the place I'm in because of significant sacrifices my parents and theirs before them made so that I could be in this place. My home literally sits on grounds that were formerly part of a Supreme Court justice's plantation. I am rooted in it. With everything that's been happening more recently, I feel a lot of direct touch points to it all.

Anna Gomez: I am a partner at Wiley Rein. I focus on telecom media and technology as well as unmanned aircraft systems in my day job, and then I also chair the firm's Diversity, Equity and Inclusion Committee. Like you, my father's an immigrant, my mother's not. I was born in the United States, but I was raised until I was 14 years old in Colombia, South America, which is where my father is from. We moved to the United States when I was in eighth grade. I am fully bilingual. I've been involved in diversity in just about every iteration of my career. I'm not a professional, but I've certainly learned a lot. And I continue to learn every day.

Can you give us the lay of the land since the murder of George Floyd and the protests for racial justice really took off?

Anna Gomez: What we are seeing from every level of my firm, and I'm sure other firms as well, is much more awareness and a desire, a thirst to understand more about systemic racism and racial injustice, and the need to address that. I spoke to my managing partner, and I said, this is the time to have a conversation with all of leadership. I didn't want to wait because exactly what you're saying is right; we don't want to lose the momentum. I wanted to take that opportunity when people were truly horrified and wanting to do something. I have to say that has continued. We saw an article in Harvard Business Review, co-authored by Ella Washington about anti-racism in businesses. I called her on a Monday, and I said, “Can you do two conversations with leadership this Friday?” and she did. We had two separate conversations with all the chiefs of the firm, and then with the management and the executive committees of the firm. It was very eye-opening and I felt a lot better about the commitment of the leadership to actually do something in this space. They have been taking action.

Bendita Cynthia Malakia: At Hogan Lovells, immediately after Floyd's killing, we took a bit of a “Truth and Reconciliation” approach to looking at what's happening within the ambit of our firm. I think the efforts that truly matter as an organization are, “What are we doing within our own institution?” As Anna mentioned, we have taken a look at how we as a firm impact racial and ethnic minorities with a specific focus on anti-blackness. And so we had a town hall where our diverse people were able to provide their perspectives, about their experiences working within the firm, that our senior leadership read out loud to about roughly 2,500 people in the firm to really hear, not from the mouths of diverse people, but from our leadership, what was actually happening in the context of the firm. And that was an incredibly powerful moment; really a reckoning point for us as a firm. It allowed us all to say, collectively, none of us can say this doesn't happen here. This happens here.

The initial action by our incoming CEO who joined us July 1 was to separate the diversity and inclusion function out of the HR function by taking my role to report directly to the CEO, in order to help accelerate our diversity and inclusion progress, and to make sure the full weight of the office of the CEO was behind our diversity and inclusion efforts. From there, we've continued to see the clamor from around the firm with respect to our diversity and inclusion initiatives. We are doing strategic planning not just for diversity, but for everything. But we have gone ahead and reconstituted a new D&I action plan that has specific objectives including providing billable diversity and inclusion hour credit for our associates, as well as other advancements. Some things have been in conversation for quite some time, but because of this moment, we were able to land them more efficiently.

Kathryn Holmes Johnson: One of the reasons I took advantage of the opportunity to go back to Sterne Kessler is because the firm is very diverse, both on the staff and the attorney side. One of the things I observed in big law in particular over the past 15 years is that D&I is really focused on the attorney ranks. And as a person who was in senior management, that was very frustrating to me. At Sterne Kessler, I can proudly say half of our leadership team are people of color and women. Our firm culture has historically been a very positive and inclusive culture, but not necessarily intentionally because of a diversity plan, if you will. It's just kind of who the firm is organically.

When the death of George Floyd happened, it was very shocking for a lot of people. Many African Americans and other people of color at the firm were “astounded at how many other people were astounded,” because these are issues we've been aware of and have been dealing with for a long time. It's part of our daily lives and part of our parents’ lives and then generations before them. So this reaction of shock was kind of confusing. There was a lot of pain and frustration in the conversations that began in the aftermath of the incident. But because of the trust, and the culture of the firm, there was a bit more space to explore things that were hard. While it wasn't all unicorns and rainbows, there is a heightened level of awareness. There has been a particular focus on the Black community, and it definitely ignited a dialogue that hadn't occurred, that needed to take place, and that is still developing. We do have a D&I committee, and the firm has had one for quite some time. That includes Rob Sterne himself and our managing director as well as some junior folks and staff. Now is definitely a time of growth and learning. We just got some high marks from Law360 for the diversity amongst our attorney ranks and amongst our attorney leadership. Even with that, there's a recognition that numbers are one thing, but there's work to be done that will continue well into the future. So that's kind of where we are.

Jean Lee: I probably started talking to a lot of law firms and corporations as the pandemic began as part of our annual checking in with our members. The one thing that really struck me is the lack of strategic planning. There's a lot of activity that everyone is thinking is strategic planning, but there's no real strategic planning. There's a lot of doing things externally, but there's no self-awareness that's happening because it's hard. It's very hard to talk about race in this country and racism in your workplaces.

I think that's something that law firms and corporations have to do more of: strategic planning and inward analysis. I can't tell you the number of Black lawyers who called us and said, and I'm going to quote at least two of them verbatim, “My GC, who is a white straight male is very committed. He sits on a lot of important boards that talk about diversity inclusion, but there are 40-plus, 70-plus Black lawyers in his legal department of hundreds of people. We have written him or her a letter with all the instances where each of us have felt racism, noticed it, and observed it. We wrote that we would like to talk to him/her about them. None of it was to put the GC on notice that you're going to get sued, but that's how they took it.” This is a very familiar story and the reason why self-awareness and introspection are so important for the strategy to happen.

If this is going to be a moment that's going to turn into a movement, how can we help organizations become more self-reflective?

Kathryn Holmes Johnson: I found it interesting that immediately a lot of firms were issuing statements. And that's something that we opted not to do, because we realized we wanted to focus on our internal community and taking care of each other at the firm and making sure we had our own house in order, before we were calling out to tell other people, what they needed to do – just demonstrating by doing.

But I think to have an internal resource, like Bendita, is really important because a lot of harm can be done with well-meaning activities like focus groups and other things. You can say, Okay, let's have a dialogue. And then there's this dialogue, and there's all this information that is shared. And it's like, what are you going to do with that? You've implied that you would like information so you can take action, but you need the expertise, the wherewithal, and the resources to be able to do that. So I think a lot of organizations are struggling. And having a strategic plan is certainly key to sorting these things out. It's certainly a marathon, not a sprint, right? I think people are regrouping and trying to figure out how we do this. How do we do it right? And more often than not, it's going to take marshaling additional resources that you don't have and making the commitment to get the resources you need to get this right.

Jean Lee: No one has it right. Otherwise, we wouldn't be here.

How do you begin to develop criteria for success and marry that to a strategic plan? Any suggestions that you may have for others in your role?

Jean Lee: I think some of it also is a lack of understanding what impact really means in the D&I space. I'll give you one of many examples. A top 20 Law Firm wanted me to review their diversity brochure. So I looked at it… and said, “I know what your firm has done because you and I work together on several of the very important initiatives. Talking about how you're supporting Women's History Month with snacks, and supporting women's businesses... is not a great look for a firm of your caliber.”

Instead, you can say as a result of you donating $60,000 over the course of three years, here are the number of people of color you have placed in GC programs, because we need those resources to connect people, to help people get educated, to hire the expensive consultants, to come in to train those leaders. Your firm actually can say, for the $60,000 you've made a difference. Firm strategy is about representation at the top. Representation matters because that helps to develop pipeline, the pipeline will develop when they see people who look different – who look like them – achieve their goals or to be at the top of the profession.

I've talked to so many marketing people and they're completely missing the mark. You have to have a narrative. You can't just say, here I give $60,000. How did you strategically take the dollar and tie it to metrics? The narrative shows the number of African American GCs we support through this program where it had an impact here, the number of Asians, the number of Hispanics, etc. Here’s the number before we donated, and this was the number after we donated.  I think that's the thing we need to help marketing and communications and some D&I folks do is say, “Here's how we did it, and here are the numbers.” It's your full narrative. You have to tell a great story. If you're a law firm, this is a great narrative to say, even though we don't have great numbers, we're being strategic, and here is where we're making a difference. Because no law firm has good numbers, let's be honest.

Bendita Cynthia Malakia: I think one of the biggest challenges… [is] that when we hire people to do their jobs, we don't make sure that having an equity lens or diversity and inclusion competency is one of the requirements. With marketing folks, their biggest challenge is, I think, a lack of understanding about where diversity and inclusion was and where it is now. I think it's evolving so quickly, that while even three or four years ago, it might have been perfectly acceptable to tout certain things, today, that just doesn't cut it. And when we think about having a strategic plan, the things that are important today are not the things that were important six months ago. What law firm did you see saying Black Lives Matter six months ago? I can't think of one, not even my own, right? And, so I have some sympathy for people in that role who are being required to try to connect on something that's evolving so quickly and on which they aren’t an expert.

That being said, evolving quickly is really important. What are the big projects that end up making the news or allow people to be connected to business leaders across functions and law firms? It might be utilization of an origination credit, curing the diversity tax, any number of issues. If we can talk about what our firms are doing in alignment with our firm's overall strategic plans related to those particular issues, if we can talk about how we're connecting the dots, that's where I think we really have the opportunity to make meaningful change and really start to connect with people authentically. I think our clients, at least the more sophisticated ones – and they're becoming increasingly sophisticated – they understand what a glossy pitch looks like versus somebody that's really focused on the nuts and bolts. 

Kathryn Holmes Johnson: I think there's one I worked at in the past 15 years where they actually had a metric in the compensation evaluation for partners. And I think that's important. If the active engagement in contributing to diversity and inclusion at a firm is included in the compensation scenario for partners, I think that will have a large impact with the D&I work.

And the pipeline issue, I think GCs have been putting a lot of pressure on firms for the past 10 or 15 years. At the same time, I also am frustrated by and challenge the general counsel community to look inward as well in terms of what they are doing, recognizing there's a finite pool of diverse law students and lawyers. The pipeline is not just the law schools, right? It's pre-law school, it's undergrad, and it's high school, and even before that, especially in the IP space. The population of attorneys at firms is not going to change overnight.

And so, realistically, what timeframe are we looking at to really see meaningful change over time? Including D&I considerations in comp and having a strategy that's really long-term focused that goes beyond the walls of the law firm are two things that are really going to have to be in place for us to be in a different place 10 years from now, because it is going to take quite some time to really make more than a blip of difference in this space.

Anna Gomez: Our firm has had a diversity and inclusion strategic plan – it's now the diversity, equity, and inclusion strategic plan – for years. We definitely had to pivot earlier this year for two reasons. First, the pandemic has changed a lot of our strategic plan. We have various goals. One of the goals is external and involves recruiting and we're not recruiting this year in the same way. We had a lot of plans to partner with law schools and do a lot of things to try to develop this pipeline. Then after George Floyd’s death, we really pivoted to anti-racism and racial injustice because this really is an opportunity right now to act. One of the things we're doing is we have created the chief diversity officer position. We want that person to do internal analysis. And a lot of our strategic plan is based on those types of analyses. I think this is a moment to jump into this and actually take meaningful actions. We've really been taking a lot of advice and a lot of cues from a lot of professionals, but also from our affinity groups throughout the firm, not just the African American and Black attorneys affinity group. We have several other ones that are very interested in seeing meaningful action at the firm.

What are the next steps firms should be taking right now to keep the momentum going?

Bendita Cynthia Malakia: I think the whole key right now is accountability. As Jean mentioned earlier, this is institutional, and individuals are making decisions every day that impact whether or not people are getting the right work; whether or not people's profiles are being elevated; whether or not people are being connected to clients; whatever it is. How do we build accountability for that whole layer of partners, below the general counsel, to make sure they are not just inspired emotionally to participate but that they are both incentivized from a compensation or other perspective; that they are measured via scorecard; that there are evaluations at the end of the year; by what their practice group leader, practice area leader, whoever emphasizes? Really figuring out this accountability piece, I think, is the key to driving D&I forward in our organizations.

Anna Gomez: I absolutely agree with that. We've been inching along on doing these things, added them to evaluation, adding them to the practice group plans every year. My next goal is to have it be part of the partner evaluation process. I am intrigued that you guys give billing credit for associates and it's something I've been raising and maybe this is the year to finally get that.

Kathryn Holmes Johnson: I think one of the things that's really important is looking holistically at the firm-wide community. That includes every single staff person and every single attorney. For so long the D&I initiatives have really been focused on the attorney population. So I think recent events have been an eye-opener for firms and have provoked broader firm dialogues, like Bendita was talking about. Hearing people for the first time, hearing them differently, and realizing the contributions that all employees make to the culture and the success of the firm in every kind of way are crucial to this dialogue and moving forward.

Have any of your firms really tackled intersectionality in their approach to D&I? If so, do you have best practices to share?

Bendita Cynthia Malakia: Intersectionality is something we get a lot of comments about. It's really interesting. We were working on establishing a global survey. I really pushed hard after our diversity conference in January that brought 300 of our minority and LGBT lawyers together. The biggest takeaway was we need programming that's specific about intersectionality. So on the survey, I went to try to get to represent those identities. And everyone came back and said, “Wait, I'm the only woman of color on this particular team. I don't want to be represented in this way.”

So it's just a story to highlight in a tongue-in-cheek way, some of the challenges related to focusing on intersectional identities. I think there's a desire to understand those specific experiences, but it's rife with a lot of challenges. Do we still have affinity groups? Do we instead have D&I councils that include everyone? How do we attack this? If we're going to segment, how far down do we segment? You know, there are just a bunch of questions that both deal with resources and accountability.

I think, what we're tasked with doing – and it's something I haven't done as a formal matter, but I'm increasingly challenging our minority affinity group leaders, our LGBT group leaders to be constantly thinking about – is the question in the women's space, like what women are we talking about? What's the woman of color experience in this? What's the LGBT woman experience in this? Asking our Black people, it's a really interesting dynamic where, even though we have many, many, many more Black women than Black men, we still have a culture that seems to support men’s voices over women’s voices. And so how do we make sure those other voices are elevated in an equitable way? I think it's a growing concern. I handle it the way I handle all processes, by making sure we have people who are trained to look through this lens. When we were doing reporting, when we were creating new programs, and we are looking at revamping existing programs. But in context of a specific initiative, I just haven't gotten there yet. But it's something I'm constantly thinking about as a bisexual woman of color.

Kathryn Holmes Johnson: You know, when this all came about, I was still reeling from an interaction our family had with the police that was very horrific and challenging. Fortunately, it did not end in death, but it ended up doing great harm. And so for a lot of folks who have experienced a lot of things – and it is true for people from all different backgrounds – others wanting to have the dialogue is very important, but it is really important to be mindful of what you're asking of people and doing no harm when asking them to share.

A lot of people have experienced a lot of pain over a lot of time. When it's like, “oh, share with us what your experiences have been” – that is a very big ask. I also feel like that's a really important thing to be tuned into. On the one hand, you want to have the dialogue, but you also need to be extremely mindful about not doing harm, having safe spaces, and not putting people on the spot where they're expected to share their experiences/their pain. They may not want to be in that space and open themselves up, and that needs to be okay. So navigating around that, I think is something that's very important that shouldn't get lost in the earnestness and the eagerness to be open and hear what people have to say.

Jean Lee: We've done work around this a few years ago, we got some pushback that we were too focused. Two years ago, we did a panel on intersectionality for women of color. We got a lot of pushback from white women. Last year, we decided to do an all-Black women's panel. We got a lot of pushback on that… ABA and MCCA, we did research on bias interrupters. It talked about that. I mean, the research of almost 3,000 people really highlighted the different experiences of African American, Black women in law firms and corporations. In every single instance, they experienced discrimination and racism at a heightened level compared to Asian women, compared to Latinas, compared to White women compared to Indigenous women, in any other group, essentially... I still spend time reading and talking to experts about how it's evolved with current events, right? Because 20 years ago when I was a social worker doing this work, is very different from today. And the issues are much more complex. So I do think it's important to bring in the right people, the research, all of those things, and a lot of the work is already out there. I would encourage people to talk to people and get the information.

Any final thoughts?

Kathryn Holmes Johnson: There's no need to reinvent the wheel. Some folks have had their sleeves rolled up for a long time and have really found some things that work well – being able to tell our stories, what kind of metrics should you be capturing, and all those kinds of things. I think it's important to know there's a lot of good work out there. There's work that needs to be done. But let's definitely leverage what's been learned and build from that to move forward. Having resources like MCCA is really important. So Jean, thanks for your leadership! Hang in there! It's got to be intense and exhilarating, but frustrating at the same time. You're probably down to like three or four hours of sleep a night. You've got a lot of demands right now, because your work is important.

Jean Lee: It's been hectic, but I'm hoping it will be a movement for change. Just like you and Kathryn and Bendita and Anna, I'm crossing my fingers. And I think as long as we keep asking these hard questions, hopefully we will get there.

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