Shaping diversity: part three

Mentoring and sponsorship

One trend which emerged in the research conducted to support this report, was a much more serious focus on sponsorship and mentoring in the US compared with the UK and Europe.

That has been illustrated both in the commitment to establishing programs in this space, but also in the dynamic seen between mentors/mentees and sponsors/sponsees.

As Eric Nitcher, group general counsel at BP explains, ‘mentoring can be binary, either good or bad; it comes down to getting the chemistry right – are you understanding what the person needs? It takes time; you cannot have just one conversation a year’.

Our research suggests that there is much more institutional acceptance of sponsoring in the US than in the UK and Europe. While it’s clear that sponsorship does take place in both jurisdictions, on the other side of the Atlantic it is certainly not as formalized as some programs in the US.

A wealth of external research over the years has shown that diverse and multicultural candidates benefit from mentoring. Partly this seems to be as a result of having help navigating the corporate landscape – someone who can be a sounding board and help candidates forge a roadmap for their careers. Some of this is essentially sharing the truth of their own journey. As Nitcher explains, in the career cafés that senior leaders at BP conduct, ‘an important part of the learning is demonstrating that careers don’t always go as you assume; for example, telling staff about plateaus that can come about’.

Interestingly, if you unpack the motivating factors influencing mentoring, sponsorship and indeed talent development, perhaps the most fundamental element is communication. For many who participated in our research, genuine, honest communication is a key aspect of progress for both inclusion and diversity. As Ilan Zechory, founder of Genius remarks, ‘my biggest piece of advice to people in larger companies is to talk about [D&I] in a way that is not manufactured, but rather spontaneous and in real time’.

Eric Grossman, chief legal officer at Morgan Stanley, expands on the importance of communication in developing the career paths of his own staff, explaining ‘if you start with the premise of communication, lots of employees don’t have a good sense of where they stand in an organization. To counter that we as a firm, and I as divisional leader, impress on our direct reports that we must give honest, constructive and regular feedback to employees so they have a clear understanding of what they do well and what they need to improve on. These conversations can be difficult’.

Power of clients: clients choose diversity – William Whitner, partner

image of paul hastings' logo‘Many of our clients are leading the way in creating more diverse, inclusive organizations – and they are pushing their outside counsel to do the same,’ says William Whitner, Paul Hastings partner and co-chair of the firm’s diversity council. ‘Clients want to be served by diverse teams of lawyers that reflect their companies’ personnel and the markets where they do business.’

However, it’s not only about winning the business – it’s about continuity. According to Whitner, clients want to see diversity across a firm, and throughout the ongoing client-counsel relationship. ‘You have to show that your firm really is a place where talented people from all backgrounds can express themselves and bring their unique talents and experiences to the table,’ he says.

Whitner is a firm believer in the power of diversity to drive innovation. ‘Bringing together a true diversity of perspectives is critical for developing breakthrough solutions for our clients,’ he says. ‘Embedding diversity and inclusion in our culture helps make our lawyers comfortable challenging conventional thinking and offering new ideas.’

Bottom line: diversity is essential in today’s changing legal landscape. ‘All else being equal,’ Whitner says, ‘if it’s a choice between a diverse team and a non-diverse team, we have seen time and again that our clients are going to choose diversity.’

The crux may be about communication, but holding managers accountable for the progress of diverse staff and mentoring is essential, say our participants. The coaching and by extension sponsorship, oftentimes become the means to that end.

‘My management committee consists of 25+ people around the globe. I require that each of them identifies their high-potential diverse and female employees so we know who is in the pipeline for promotion. Then we can assign mentors and coaches and make sure that these employees have access and opportunity to progress,’ says Grossman.

‘The distinction between mentoring and sponsorship is material; a mentor is someone who you can talk to regarding issues or long-term career aspirations; a sponsor is someone who recognizes your high potential and is able to advocate for you. I expect members of my management team to serve as both mentors and sponsors, just as I have for women and diverse employees.’

At Morgan Stanley, as in a number of other organizations big and small, it’s the accountability of management for the progression of diverse staff which is fundamental to progress. Grossman makes it very clear that for his legal team, this is not just a ‘nice-to-have’. ‘I demand of my managers that they participate in advancement of the people on the diverse sponsorship list and provide incentives to those who deliver.’

The power of the client

In the US, it could be argued that in-house counsel are more focused on using their purchasing power to further the inclusion and diversity agenda than anywhere else in the world. For many of the major clients we spoke to when compiling this report, it has increasingly become a measurable and actionable target for legal departments when operating internally and externally. Interestingly, it is as much about the carrot as the stick when shaping approaches here.

‘Corporations and their legal groups are often more progressive than law firms in understanding these issues, because they have been focused on this for many years. This is why corporations have to take more time to persuade law firms to do the right and smart thing here,’ says Joel Stern, chief executive at NAMWOLF, the national association of minority and women owned law firms.

But how does this play out in in-house departments, where the power of the wallet is arguably still the most effective card in the general counsel’s hand?

Walmart has been a leader in utilizing its power as a major corporate to influence outside counsel. Following the mantra set by its chief executive Doug McMillon, who declared that ‘we’re at our best when we promote diversity across our supply chain’, the legal department has placed an emphasis on engaging with diverse law firms when allocating its external spend.

‘In 2005, Walmart Legal began to use its size and scale to bridge the diversity gap in our outside counsel firms. Early initiatives included increasing diversity among the attorneys serving as our relationship partners. Today, we have approximately 200 women and diverse attorneys serving as relationship partners at our outside counsel firms and controlling a significant portion of our annual legal spend within their firms,’ says Karen Roberts, general counsel at Walmart.

‘Walmart Ready is an outside counsel onboarding program launched by Walmart Legal in 2015. It was designed to educate women and diverse outside counsel about our business, legal operations and unique corporate culture while affording them an opportunity to connect directly with our in-house attorneys. The goal of the program is to ensure that we are fully utilizing our diverse pool of available outside counsel and enabling them to be successful in handling Walmart matters.’

Engagement is only half the battle however – ensuring that results are being achieved is just as important as ensuring that progress is being made. Like Walmart, at PepsiCo, the tools that the legal team uses to measure how outside suppliers are working with diversity are weighted to give extra credit for diverse partners, especially so for those who are relationship partners for PepsiCo. The measurements effectively use the law firms’ own measures of success, but emphasize a diversity and inclusion agenda. These criteria, and the weightings afforded for different activities, contribute to how the firms are evaluated – significant, because any factor which has an impact on law firm spend directly incentivizes improvement in that area.

For Alex Dimitrief at GE, the communication and accountability aspects of diversity and inclusion have become a fundamental part of his feedback process with supplier law firms.

‘A big complaint from some firms is that they don’t understand how we use this information. I meet every quarter with one of our law firms to review their diversity program generally, and their performance, partly in regards to the number of diverse hours on GE matters. We are finding ways to measure the metrics and to provide law firms with meaningful feedback and guidance.’

Role models: a chance to give back – Sherrese Smith, partner

image of paul hastings' logoAs she has advanced through her multifaceted career, Paul Hastings partner Sherrese Smith has seen firsthand the importance of having a strong role model.

Following law school, Smith worked first as a law firm associate, then took a risk to go in-house at Washington Post Digital which, at the time, was more of a tech startup than the online media powerhouse it is today. Suddenly she found herself thrust into the forefront of technological change, with the opportunity to help the company’s leadership navigate complex and novel legal issues in a changing media and technology landscape.

It was there that she met her first true role model, who helped Smith channel her interests and eventually became her mentor and close friend. ‘My role model took an interest in developing my strengths and helped position me for the career I have today.’ That guidance helped Smith to make further successful career moves, including going on to serve as chief counsel to the chair of the Federal Communications Commission, and now her current position as a partner in Paul Hastings’ Washington, DC office.

Smith shows her gratitude for that guidance in part by serving as a role model for young lawyers and law school students herself. ‘It’s important to me to demonstrate leadership, and to give back by offering advice to those who’ve had different experiences and opportunities than I have,’ she says. Smith does this primarily through her leadership roles as recruiting co-chair for the firm’s DC office, and partner chair of the firm’s diversity program, and as an adjunct professor at the George Washington University. In addition, she serves as a regional interviewer for her alma mater, Northwestern Pritzker School of Law.

‘To have a hand in elevating someone’s career, to guide them through the possible pitfalls of the practice of law and to assist them in becoming the best version of themselves, that means a lot to me and allows me to give back what has been so generously given to me – great mentorship,’ she says.

For Dimitrief, encouraging his law firms to experiment with blind assignments has been a positive step and is a move that many researchers in the field have advocated as an effective means of combating biases, unconscious or otherwise. ‘For me, the best measurement of law firm success in regards to diversity is in who gets the assignments. For example, women may be excluded from opportunities, often with good intentions: “She just had a baby, etc”. But that doesn’t give the woman a choice, which by all rights is hers to make, based on what she and her family believe is best for their family. Making such choices for someone else isn’t right and isn’t the way things should happen.’

Moving forward, PepsiCo feels that more inter-corporate uniformity for legal teams in how they work and measure in this area can only produce positive results. It has volunteered to take part in the Model Diversity Survey developed by the American Bar Association, which was distributed at the end of 2016. The survey analyzes the spread of gender and ethnic diversity across all levels at law firms, while also examining metrics on the number of diverse individuals in law firms’ management, as well as promotions and attrition with regards to diverse lawyers. It is hoped that the uniformity of the Model Survey will allow law firms and clients to better analyze and benchmark the diversity of legal service providers. A secondary aim is that having a Model Survey will also encourage more clients to examine and consider diversity when deciding where to commit their legal spend. At its heart, it’s about collaborating to produce better results across the board.

The notion of working together and the collective role that corporate counsel can play is one shared by Jean Lee, chief executive of the Minority Corporate Counsel Association (MCCA). For Lee, holding outside counsel to account cannot just be in the purview of the largest departments with the biggest spend. Rather, she says, ‘many Fortune 1000 companies have very small legal departments. But those lawyers can actually make a huge impact as you can really look at the diversity of the law firms you are hiring and keep them accountable. The effect of this can be big. For example, if you are a small company that has ten lawyers you probably won’t have huge amounts of transactions or litigation, but when you use outside counsel you are using them for larger matters.’

For Lee, the role and power of the in-house lawyer in this capacity is greater than it has ever been. Many in the industry would agree with this, thanks to the mix of consolidation and competition in the legal services sector. Lee adds, ‘as an in-house lawyer today you have much more power than you did 20 years ago. You can say “you can have my work, but I want to know I have diverse lawyers really working on my slate”. It’s about making your counsel accountable and checking it is really happening’.

Looking forward

With the advent of the Trump administration set to have an enormous impact on national policy over the next four years, how the new regime approaches and shapes its own diversity agenda will undoubtedly have ramifications that will extend to corporate America. Like many of our interviewees expressed when speaking about their own organizations, the tone from the top played a significant role in how the mandate for the rest of the business was shaped – either positively or negatively. If the new administration fails to place a priority on diversity, it runs the risk of stymying momentum and halting progress – perhaps even to the point of regression – should corporate America follow its lead.

Concurrently however, a new age of corporate social responsibility, and in particular the emphasis afforded to it by the younger generation, means that businesses can expect to be judged on their individual merits across the board – including where diversity is concerned. This means that regardless of size and standing, corporate America will be expected to play its part – both from the perspective of doing what’s right and sustaining business growth.

As those interviewed throughout the report have demonstrated, in-house legal departments have a definite role to play in shaping strategy and ensuring the diversity agenda continues to progress, within their businesses and beyond. The form that support takes can be as distinct and diverse as the organizations from which they hail, with contributions ranging from support of major legislative causes through to the development of diverse talent within the community. Whatever form those efforts take, the defining characteristic was that in-house counsel did something. They took action.

Lawyers have been on the frontlines of the battle for civil liberties and personal freedoms since the Founding Fathers formed the United States of America. Perhaps there is no time more prudent than now to remind ourselves of that.