After a decade of collecting data on law firm diversity, the New York City Bar Association has found that an expanding business case and increased emphasis by clients is establishing diversity as essential to the ‘new normal’ for law firms. At the same time, unconscious bias and the need for more white men to play a role in diversity efforts are challenges that law firms must overcome in order to diversify fully.

In its 2013 Diversity Benchmarking Report released today, the City Bar found signs of progress in the diversification of law firms, especially at the junior associate level. For example, while attorneys of color made up about a fourth of second-year associates in 2004, by 2013 they made up nearly a third. And the number of openly LGBT attorneys more than doubled during that time, as a result of both better reporting and increased acceptance in the workplace.

At the most senior levels of law firm leadership, however, minority and women attorneys are still not adequately represented, and there is higher turnover among these groups than among white men. In addition, minority and women who become partners are more likely to be non-equity partners than white males.

The City Bar’s Benchmarking Reports compile data from signatories to the Association’s Statement of Diversity Principles. On the tenth anniversary of producing the reports, the City Bar saw an opportunity to move ‘beyond the numbers’ and gather qualitative information as well through in-depth, hour-long interviews with law firm managing partners, diverse law firm partners, diversity directors and senior in-house leaders at major corporations.

A key issue that arose in the interviews, described by one interviewee as the “elephant in the room” interfering with continued diversity progress, was “unconscious bias.” Interviewees described manifestations of unconscious bias against minority and women attorneys, explaining how it influenced firm advancement, and noted the importance of individuals being aware of their own inherent biases. For example, said one interviewee, “There is an anti-commitment bias against women. It exists whether or not you have children. The bias is that women are not as committed as men, not as likely to stay around….There’s a sense of, should I invest in that person?”

Another key theme that emerged was the importance of proactively engaging white men and helping them understand the economic importance of diversity, as well as the vital role they must play in promoting diversity. The concern was that many white men fail to see how diversity is relevant to them. “If you were trying to foster change and lead an initiative and 60% of people feel like it has nothing to do with them, it’s not going to be successful,” noted one participant.

“While we’re pleased that more and more firms appear to understand that diversity benefits them as well as their employees, we still have miles to go,” said City Bar President Debra L. Raskin. “Increasing awareness of unconscious bias and firm-wide accountability for improving diversity are positive trends we should all support.”

While looking back over the past ten years, the report also lays out some recommendations for “the road ahead.” In addition to increasing understanding of unconscious bias and engaging more white men in diversity efforts, they include actively tracking and supporting women and minorities through transitions, evaluating unintended consequences of multi-tier partnership models, and increasing accountability of partners for improving diversity.

In 2003, more than 100 New York City law firms signed the City Bar’s Statement of Diversity Principles. Signatory firms articulated key goals and agendas for diversifying the talent pool of attorneys, from the junior level to the most senior law firm leaders. Crucial to that effort was providing the City Bar with detailed data on a comprehensive set of workforce metrics over time. The first survey was distributed in 2004 and collected data on the diversity representation and demographics at key levels, hiring and promotions, availability and usage of flexibility, as well as an in-depth look at the associate pipeline. Today, the Statement has over 130 signatories.

The 2013 Diversity Benchmarking Report is available at: http://bit.ly/1lw6yDy

 

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This month, the New York City Bar Association is celebrating thirty years of efforts to increase diversity in the legal profession. A series of forums assessing the state of diversity in the profession culminates on June 18th with a gala fundraiser honoring the 2014 Diversity and Inclusion Champion Award Winners: Michelle J. Anderson, Joseph M. Drayton, Natalia Martín, Karla G. Sanchez, and, posthumously, Thomas E. Heftler and Michael W. Oshima. The City Bar will also present its first Diversity Pipeline Champion Award to the Morgan Stanley Legal and Compliance Division.

It has been ten years since the City Bar began producing Diversity Benchmarking Reportsbased on data from many of the more than 130 law firms and corporations that have signed on to our Statement of Diversity Principles. This year’s benchmarking report, to be released on June 18th, takes a big-picture look at data gathered over the last decade.

Not surprisingly, given the historically homogenous makeup of the legal profession, the numbers show mixed results, with signs of progress alongside challenges that remain. Among the gains is the progress at the junior associate level; while attorneys of color made up about a fourth of junior associates in their second year in 2004, they were nearly a third of the group by 2013. And representation of openly LGBT attorneys has more than doubled, due to both better reporting and increased workplace acceptance.

On the other hand, minority and women attorneys are still not adequately represented at the most senior levels of law firm leadership. New, multi-tier partnership structures appear to have unintended negative consequences for minority and women attorneys. And there is higher turnover among attorneys of color and women attorneys than among white men.

That said, what the numbers don’t reflect is a shift in culture, a “new normal” where there is significant acceptance of the “business case” for diversity. This change in culture is noted by many of the leaders of the legal profession who were interviewed for the report:

“There is a much greater recognition that diversity is a given. Firms are moving forward and trying to redesign and adjust themselves to the ‘new normal’ and diversity is part of that conversation, even given various market realities. When firms are pulling back in a lot of ways, they are not pulling back on diversity.”

“Law firms are following their clients. There is a huge lag but multinational firms are increasingly reflecting diversity and I mean diversity on a global basis. If you still think we live in a 1950s America, we don’t believe you are going to be as successful going forward. That world is getting successively smaller all the time.”

The most interesting part of the report for me was the section on “unconscious bias,” a subtle and sensitive topic not explicitly raised by the interviewer but that was brought up by law firm and in-house leaders:

“People wonder why diversity is not working better and the answer is bias. It’s not about people being bigoted. It’s about not having the competency and awareness about their own biases. That’s really hard for smart people.”

“There is a narrow definition of merit and who is qualified. The problem is my definition of what constitutes a good lawyer is someone who mirrors my path . . . . You end up with a pool that looks like you. You have to work at being aware of unconscious bias.”

“This is not a mal-intentioned environment but we all come in with natural biases.”

That last point bears repeating and reflecting upon. To be human is to have unconscious biases and to have to work consistently at being aware of them and not letting them dictate conduct. As stated in the report, “Given its deep roots, tackling unconscious bias requires leadership and persistence. It is among the greatest challenges that diverse attorneys face.”

So how do we increase diversity in the profession over the next ten years? One key, according to the interviewees in the report, is enlisting more white men in the effort:

“If you were trying to foster change and lead an initiative and 60% of people feel like it has nothing to do with them, it’s not going to be successful.”

“If straight white men feel excluded, then we are failing. We need to create a culture, not a cult.”

Indeed, according to the report, “the biggest concern expressed was that the majority of white men fail to see the relevance of diversity to them.” What’s needed, the report suggests, is an environment where white men can comfortably discuss diversity, voicing their questions and deepening their understanding of the issues and their own mindsets. “Given the opportunity to become more involved in the dialogue, white males were described as becoming some of the biggest supporters of diversity,” the report states. These issues of unconscious bias and the need for more white men to engage in diversity efforts were addressed at recent City Bar-sponsored forums for managing partners, diversity directors and general counsel.

The report contains no “silver bullet” for achieving a diverse workforce from top to bottom. Rather, success depends on “multiple angles and layers of intervention” across the range of critical functions: recruitment, development, evaluation and compensation, assignments, and so on. “The most effective approach to diversity was described not as a cottage industry but as a lens to view the myriad systems and practices that define firm life.”

Despite the mere incremental gains in diversity seen from year to year, I think there is cause for optimism. With the change in culture and the “new normal” that is emerging, diversity is no longer relegated to a subcommittee but is increasingly everyone’s concern.

Debra L. Raskin is President of the New York City Bar Association

 

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The New York City Bar Association’s Committee on Professional Ethics has issued an opinion (2014-02) stating that a New York lawyer may use the street address of a virtual law office (VLO) as the “principal law office address” for the purposes of Rule 7.1(h) of the New York Rules of Professional Conduct, even if most of the lawyer’s work is done at another location. The lawyer also may use the VLO address on business cards, letterhead and law firm website. New York lawyers who use a VLO also must comply with other New York Rules, including 1.4, 1.6, 5.1, 5.3, and 8.4.

A virtual law office, as it is used in this Opinion, refers to a physical location that offers business services and facilities, such as private or semi-private work spaces, conference rooms, telephones, copy machines, and mail drop services to lawyers. As the Committee notes, “given the lower overhead, improved encryption systems, expansion of mobile communication options, availability of electronic research, and the ease of storing and transmitting digital documents and information, VLOs are becoming an increasingly attractive option for attorneys throughout the country.”

New York Rule 7.1 sets restrictions on advertisements disseminated by lawyers or law firms. One of those restrictions is stated in Rule 7.1(h): “All advertisements shall include the…principal law office address…of the lawyer or law firm whose services are being offered.” Although the phrase “principal law office address” is not defined anywhere in the New York Rules, New York State Bar Association Ethics Opinions 756 and 964 have concluded that Rule 7.1(h) requires a physical street address.

NYSBA Ethics Op. 756 identifies several reasons for the office address requirement. First, disclosure of a physical address “should facilitate a prospective client’s ability to make an intelligent selection of lawyer.” Second, a physical location enables members of the public or clients to meet with the lawyer, contact them by mail, and serve legal papers. Third, the absence of an address “could be misleading,” for example, “by suggesting a physical proximity to the recipient that does not in fact exist” or “the ability to serve in jurisdictions in which the advertising firm or lawyer is not qualified to practice.”

According to Opinion 2014-02, each of these policy interests can be advanced by the use of a VLO. First, the fact that a lawyer uses a VLO “may itself be a relevant factor in selecting or rejecting a particular lawyer.” Second, the VLO provides a physical location for clients or members of the public to contact, meet with or serve legal papers on the lawyer. And lastly, states the Committee, “we do not believe use of a VLO address in advertising is inherently misleading. Given the prevalence of alternative work arrangements (telecommuting, work-sharing, office-sharing, etc.), members of the public no longer assume that a physical street address is equivalent to a traditional, single-purpose, brick-and-mortar office.”

The Committee also notes, “economic conditions in the legal world and technological developments persuade us that we should not create obstacles to the use of VLOs as long as the interests of clients, the courts, and the legal system are protected.” Still, the Opinion states that attorneys should be aware of to the following ethical concerns when using a VLO:

  • Under Rules 5.1 and 5.3, law firms and lawyers are responsible for supervising the conduct of subordinate lawyers and nonlawyers and ensuring they comply with the Rules. Given the differences between a VLO and a traditional law office, lawyers who use VLOs may need to take additional precautions to ensure that they are fulfilling their supervisory obligations.
  • Rule 1.6(a) prohibits a lawyer from “knowingly revealing confidential information,” absent informed consent or other exception. In addition, Rule 1.6(c) provides that “a lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates and others whose services are utilized by the lawyer from disclosing or using confidential information of a client.” A lawyer who uses the shared services and office space of a VLO must take reasonable steps to ensure that he or she does not expose or put the client’s confidential information at risk.
  • Rule 1.4 requires lawyers to communicate with clients and keep them apprised of the status of their legal matters. Lawyers who use VLOs must be particularly mindful of these ethical obligations, given that the lawyers may frequently be away from the physical location that serves as their business address.
  • A significant concern underlying Rule 7.1(h) is the availability of an address for purposes of personal delivery and acceptance of service of process. Where a VLO is authorized to accept service of process, the attorney must ensure that the VLO communicates with them concerning the receipt of any materials with sufficient promptness.

New York lawyers may need to consider additional issues, such as whether the contemplated arrangement complies with relevant substantive laws and court rules, and the professional conduct rules of other jurisdictions.

The Opinion can be read here: bit.ly/1p78jWF

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The New York City Bar Association’s Lawyer Assistance Program (LAP), a free, confidential service for attorneys, judges, law students and their family members in New York City struggling with substance abuse and/or mental health issues, is celebrating its 15th year in operation.

The occasion will be marked on June 16th with a celebration in conjunction with the 8th Annual Volunteer Appreciation Dinner. That same day, LAP will host a Volunteer Training from 10:00 a.m. – 4:00 p.m. at the City Bar, with CLE credit available. The program, co-sponsored by LAP, the Brooklyn Bar Association’s Lawyers Helping Lawyers Committee and the New York State Bar Association’s Lawyer Assistance Program, is open to anyone interested in learning about the challenges lawyers face and/or becoming a volunteer for LAP. To register, click here.

Those interested in learning more about the program and how to support it can find information here.

 

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The New York City Bar Association welcomes the issuance of NERA Economic Consulting’s report “Cost of Counsel in Immigration: Economic Analysis of Proposal Providing Public Counsel to Indigent Persons Subject to Immigration Removal Proceedings.”

NERA’s report, by Dr. John Montgomery, affirms the City Bar’s longstanding support for appointed counsel in immigration removal proceedings.  The report finds that a national immigration federal public defender system’s benefits could offset the federal government’s costs, through detention, foster care and transportation savings, even without quantifying other likely fiscal, social and administrative benefits.  As Dr. Montgomery said, “When we conducted our analysis, we found that under plausible assumptions, providing counsel to indigent respondents could pay for itself.”

“In our advocacy to Congress for representation in deportation hearings, policymakers repeatedly asked us: ‘How much does it cost?’” said Lenni Benson, Chair of the City Bar’s Immigration and Nationality Law Committee. “This study helps demonstrate that counsel for indigents facing detention and deportation is not only fairer and consistent with U.S. justice, but cost-effective.”

“Many immigrants are deported each year, leaving families behind, who may have had a right to remain in the U.S. but were unable to assert that right because they lacked legal representation,” said Debra L. Raskin, President of the City Bar.  The NERA report should eliminate the argument that the federal government cannot afford to provide this essential representation to those in deportation proceedings.”

The NERA report makes these key findings:

  • A national immigration appointed counsel system “would pay for itself” through federal fiscal savings under plausible assumptions. Savings come from
    • Detention (“$173-174 million/year” and “likely substantially more”);
    • Federal foster care outlays ($18-21 million/year);
    • Transportation ($10 million/year); and other areas.
  • National federal defenders could help 17,550 eligible immigrants (14,754 of them detainees) stay in the United States with their families.
  • Providing counsel to immigration detainees alone—like New York’s pilot project, but nationally—“would more than pay for itself,” saving $38 million/year.

Notably, NERA’s report conservatively does not quantify other savings.  But as the report notes, additional benefits may include:

  • Detention cost savings from lawyers at bond hearings helping secure release.
  • Economic benefits from those released detainees working, supporting their families, and paying taxes.
  • State cost savings (such as state foster care costs).
  • The potentially “substantial” economic and social benefits from persons avoiding deportation and making “productive investments in their business, home, and education,” with their increased spending and potential multiplier effects.
  • Administrative savings from more efficient immigration courts.  Appointed counsel would save about 87,000 hearings and 115,000 hours of court staff time per year. In a bipartisan study, co-authored by Committee Chair Professor Benson, immigration judges overwhelmingly agreed that lawyers would help them conduct cases more efficiently and quickly.

The City Bar asked NERA for its independent pro bono analysis to inform the debate.  NERA was retained by WilmerHale LLP, which has been providing extensive pro bono assistance to the New York City Bar in its immigration reform advocacy.  “NERA’s economic assessment is valuable to policymakers, and its model is a groundbreaking analytical framework for researchers,” said Benson.  “Holistic economic analysis such as this is a necessary part of the access to justice debate.  Policymakers have too often considered only costs of civil legal assistance and then naturally cut costs.  Yet increasing funding for legal services typically generates economic benefits that exceed the costs.”

Benson added, “In the last seven years over two million people have been deported, with their U.S. families and children left behind.”  Against this backdrop, the City Bar’s support for immigration representation is longstanding.  In a 2013 position letter, the City Bar called for nationwide appointed counsel to indigent non-citizens in immigration proceedings, following its 2009 report advocating for appointed counsel for immigration detainees.  It also has advocated to increase funding in New York for immigrant legal services.

The City Bar Justice Center represents immigrant detainees and coordinates leading law firms’ pro bono assistance. Additionally, to expand the bar’s expertise, the City Bar’s Immigration & Nationality Law Committee has hosted panels on immigration reform and a training session on representing immigrants at bond hearings.  A separate subcommittee to improve access to counsel for immigrant children conducted six free trainings inside the New York City family courts last year.

The report can be downloaded here: http://www.nera.com/67_8564.htm

 

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The New York City Bar Association has hired Ann Rappleye to lead its Continuing Legal Education department.

Rappleye joins the City Bar following 20 years of experience as a law-firm and in-house attorney.  As counsel for Simpson Thacher & Bartlett LLP, Rappleye handled numerous antitrust matters, civil and criminal investigations and general commercial litigation on behalf of clients in the fields of media, aviation and pharma. She then held various positions in the pharmaceutical industry, including Chief of Staff at Wyeth (now owned by Pfizer), as well as General Counsel, Chief Compliance Officer and Secretary at Shionogi Inc., the U.S. subsidiary of Osaka-based Shionogi & Co., Ltd.  She has a B.A. from Yale College and a J.D. from New York University School of Law.

“I am thrilled to be joining such a dynamic organization as the New York City Bar Association and am excited to have the opportunity to lead the City Bar Center for CLE,” said Rappleye. “With an experienced team supporting our efforts, we aim to continue to provide excellent quality CLE programs while transforming the CLE function at the City Bar Center to best serve the changing needs of our members and partners.”

“As an experienced CLE instructor, Ann knows what it takes to put together compelling programs,” said City Bar Executive Director Bret Parker. “As a working attorney, on both the firm and client sides, she knows first-hand what our customers are looking for in CLE offerings. Finally, she has the business experience managing large, cross-functional teams that we were looking for to take our CLE department to the next level.”

 

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The New York City Bar Association has announced the winners of the 2014 Henry L. Stimson Medal Awards, honoring outstanding Assistant U.S. attorneys from the Southern and Eastern Districts.

This year’s medal recipients are Gail Matthews (Civil Division) and Daniel Silver (Criminal Division) of the Eastern District, along with Benjamin H. Torrance (Civil Division) and Guruanjan Singh Sahni (Criminal Division) of the Southern District.

The honorees will receive their awards at the City Bar on June 3rd at 6 PM. Mark R. Hellerer serves as chair of the City Bar’s Stimson Medal Committee and will be the ceremony moderator. Hon. Paul A. Engelmayer, United States District Judge, SDNY, will provide keynote remarks, and the medals will be presented by Association President Debra L. Raskin.

The medal is awarded in honor of Henry L. Stimson, who served as U.S. attorney for the Southern District from 1906–1909 and as President of the Association from 1937–1939.

 

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The New York City Bar Association applauds the new Commissioner of New York City’s Human Resources Administration, Steven Banks, for proposing changes to HRA policies that will ease barriers to the receipt of public assistance by those New Yorkers most in need.

As observed by our City Bar Justice Center and members of our Social Welfare Law Committee, New Yorkers seek cash assistance to get through difficult times that are often caused by a change of circumstances such as unemployment, the onset of disabling health conditions, domestic violence, homelessness or the unmet need for child care. These individuals usually have two goals. In the short-term, they seek to obtain and maintain subsistence income. In the long-term, they seek a path to a more stable income, whether through education, employment or accessing other sources of public benefits, such as Social Security, for which they may qualify. Both goals involve the work and assistance of HRA, the social services agency responsible for administering benefits in New York City.

However, as we discuss in our report Policy Recommendations for New York City’s Next Mayor, it has become increasingly difficult for the poorest New Yorkers to access and maintain much-needed benefits. We urged HRA to exercise its discretion to remove administrative barriers by, for example, giving applicants the ability to communicate with HRA by phone, fax or mail and increasing transparency of attendance reporting policies. We applaud Commissioner Banks for taking up the call of the City Bar, and others who represent low-income New Yorkers, so that individuals in need can fairly access the benefits that will help them move out of crisis and toward a more stable life. These reforms include (1) allowing four years of college as an option to HRA clients who must fulfill mandated training and employment requirements; (2) disbanding the “Center 71” program that resulted in unnecessary case sanctions and avoidable fair hearings; (3) developing a pilot program that provides clients in employment programs with five excused absences for illness or family emergency prior to the implementation of a sanction; (4) expanding HRA’s online portal; and (5) developing a new client advocacy unit for clients, community members and elected officials, including an ADA coordinator, a language access coordinator and an LGBTQ services coordinator.

 

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