Increasing diversity by hook or by crook

Is it time we turn to regulation—or even court order—to ensure a more diverse profession?

Compulsory transparency

While transparency with respect to diversity information has been growing among law firms in both the U.S. and the U.K., such reporting has so far been more optional than obligatory. As Roll on Friday recently observed, “City firms have been disclosing diversity information for a while now in pitch documents, when dealing with local authority clients or US investment banks.” Here at Vault, we’ve seen increased willingness on the part of law firms to divulge detailed demographic data in our annual Law Firm Diversity Survey* (though admittedly, some of that openness may be motivated less by altruism than by client command).

But now there’s talk of making diversity reporting compulsory in Britain. The Legal Services Board, which oversees the regulation of lawyers in England and Wales, is considering whether to require law firms and chambers to publish diversity and class information. If the measures are implemented next year, all regulated entities would be required to distribute to their legal and non-legal staff questionnaires addressing seven areas of diversity—age, disability, gender, race, religion or belief, sexual orientation and working patterns—as well as social mobility, and then to publish the results, including the response rate, broken down by level of seniority. According to , “The LSB’s twin aims are to build an evidence base to inform policy making, and to promote transparency about diversity and social mobility ‘as a lever to change behaviour’.”

Court-ordered assignments

Meanwhile in New York, one federal judge has taken it upon himself to compel law firms to put together diverse legal teams. On Monday, U.S. District Court Judge Harold Baer ordered the two firms serving as lead counsel for plaintiffs in a securities class action to “make every effort to assign to this matter at least one minority lawyer and one woman lawyer with requisite experience,” explaining that “this proposed class includes thousands of participants, both male and female, arguably from diverse backgrounds, and it is therefore important to all concerned that there is evidence of diversity, in terms of race and gender, in the class counsel I appoint.”

The language of the order is itself unusual, of course, but it is not unique. In fact, Judge Baer made the same demand in a previous class action (the decision, In re J.P. Morgan Chase Cash Balance Litigation, is cited in the current order). What’s also interesting is, as The American Lawyer notes, the timing of the order, which takes place two years after Baer appointed the firms as co-lead counsel and in the context of a motion to approve a preliminary settlement.

- posted by vera

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*The Vault/MCCA Law Firm Diversity Database currently contains comprehensive statistics reported by more than 300 law firms.