Editor's note: The author will be a speaker
at OSB Annual Meeting Oct. 3-5 in Eugene.
Each fall, like the Knights of the Round Table seeking the Holy
Grail, law firm recruiters go forth on a quest to bring back 'qualified
minority' law students as prospective summer associates or
new associates for the following fall. Those who are ultimately
judged 'qualified' then get a taste of the fine art
of recruiting in a manner rivaled only by recruiters for exceptionally
talented athletes. They are wined, dined, flattered and cajoled
not only for their promise as lawyers but also in the pursuit
of racial diversity.
Some of the law firms that engage in such recruiting are motivated
by clients or prospective clients who, more and more frequently,
insist that their outside counsel be racially diverse and specify
that lawyers of color be assigned to some of their matters. For
other firms, the quest is inspired by altruism; they have decided
that diversity is the right and proper course of action to pursue.
Some join the quest because they recognize that a racially diverse
law firm will be better able to survive and thrive in the future.
After all, a diverse firm has a far broader base of potential
clients and other contacts such as public officials and policymakers,
judges, civic and community leaders, and the media. And still
other firms, unconvinced that any actual benefits may accrue,
nevertheless pursue diversity because their competitors are doing
The pressure to recruit 'the qualified' is intense and
made more so by the fact that so many of those judged qualified
in previous years have departed for other employment opportunities.
The quest, therefore, is a deadly serious one that rises almost
to the level of a competitive sport among firms in some cities.
Accomplishing this quest regardless of motivation requires far
more than the pure heart of a Sir Galahad. It needs the wisdom
and boldness of Arthur, the bravery and determination of Lancelot,
the compassion and empathy of Guinevere and the perception and
foresight of Merlin. Indeed, while the Holy Grail required only
a pure heart, the diversity such firms pursue requires all these
qualities plus an open mind. That is something far easier said
than done, for even the most open of minds may harbor unrecognizable
or unacknowledged prejudices and stereotypes shaped by individual
values and experiences.
The open-minded approach necessary to achieve diversity requires
an ability to see through the illusory smoke and mirrors of stereotypes
and racism - overt, subtle and institutional - to recognize and
accept that any quest for 'qualified minorities' who
will diversify a firm is doomed almost from its start. It is doomed
to failure simply because it reveals a mindset predisposed to
evaluate minority candidates with a greater or lesser degree of
scrutiny and skepticism. The very act of attaching the description
'qualified' presumes and presupposes that minorities
are not qualified. In view of such a negative attitude, it is
small wonder that such quests more often than not fail.
Furthermore, even if a firm successfully recruits a 'qualified
minority,' there is a strong likelihood that that individual
will eventually leave the firm. This may be in part because the
very attitude that perpetuates the need to distinguish 'qualified'
minorities from minorities in general will likely translate into
a firm with a less-than-hospitable atmosphere for lawyers of color.
THE MEANING OF 'QUALIFIED'
When applied to lawyers of color, the term 'qualified'
is usually used as a code for graduation from a name law school,
top or close to the top class ranking, academic honors or significant
journal experience. It rarely includes or makes exceptions for
work or life experience, natural talent, interest and aptitude
or determination. Less commonly, when the term is applied to non-minorities,
however, being 'qualified' tends to expand to include
all of the above plus personal background and lifestyle, personal
and professional interests and familiarity. In those cases, being
'qualified' clearly is the result of the viewer's being
open-minded enough to look beyond a limited number of criteria
and imagine a candidate's potential based on demonstrated interests,
achievement and personality. And, when those things are similar
to our own or our friends' interests, how much easier it is to
imagine that potential.
The expanded definition offers latitude to search for and recruit
talented lawyers; by applying only the more restricted definition
to lawyers of color, the quest for diversity becomes unnecessarily
more difficult. But, stimulating the open-mindedness necessary
to allow for applying a far more expansive definition of 'qualified'
remains a significant challenge for all those in the legal profession
who are aware of the term's misleading nature when applied to
candidates of color. It is the challenge of willful ignorance:
Every lawyer knows at least one other non-minority lawyer - and
probably more - who could not possibly have measured up to the
criteria being used to assess candidates of color, yet managed
to survive and even thrive as a practicing lawyer. Every law firm
has such lawyers. It is an invisible double standard, and it is
the crux of the problem of minority recruitment.
This does not mean that current diversity efforts or efforts to
recruit lawyers of color will automatically fail. Indeed, the
reality is just the opposite. Once employers drop the 'qualified'
label applied to candidates of color and begin to evaluate prospective
candidates open-mindedly, they often discover a more realistic
chance at achieving diversity. Nor does it mean discarding or
lowering standards. It is simply acknowledging what those criteria
and standards really are, in an honest and straightforward fashion.
What they really are may have little to do with alma maters, class
ranking or grades and more to do with aptitude, talent, diligence,
commitment, mentoring and personality - along with social or familial
connections, training in form as well as substance and confidence
bred from familiarity and experience.
Consider the lawyers in any given law firm. They are not all graduates
of Ivy League or top-20 law schools. Not all of them graduated
at or near the top of their law school classes; many did not earn
honors, and quite a few never worked on a journal. Nevertheless,
their peers find them satisfactory if not better-than-average
Consider the very top lawyers at that firm. Use whatever criteria
seem most reasonable; top may be based on client control, profitability,
celebrity, a particular skill, an area of knowledge or expertise,
seniority or myriad other reasons. Regardless of the criteria
applied, specific law school, class rank, law school honors and
journal experience tend to be unreliable indicators of future
law firm or law practice success.
EVALUATE PROSPECTIVE HIRES
ON APTITUDE AND POTENTIAL
It behooves law firms that are seeking greater diversity to learn
to evaluate prospective candidates on the basis of aptitude and
potential, measured less by the candidate's alma mater and more
by achievement. A firm that chooses to value (or dismiss) graduates
of certain schools or those with certain credentials based on
past experience is acting reasonably, given the finite time available
to recruit candidates. But it is the rigid application of such
standards that undermines a firm's quest for diversity, rather
than a lack of qualified minority candidates.
Also, bear in mind that one person does not make a pattern. The
fact that one lawyer of color did not work out means nothing more
than the lawyer did not work out. Specifically, the fact that
one lawyer of color did not work out is a shortsighted or narrow-minded
reason to avoid or hold to more stringent requirements other lawyers
of color who may share an alma mater, a cultural background, certain
life experiences or other circumstances with that lawyer.
The firm that wishes to be more racially diverse, whatever its
motivation, need only adopt a realistic strategy to do so. No
practical standards need be sacrificed. Indeed, they may carry
more weight. Analyze the attributes that are highly valued in
a lawyer judged to be excellent. Technical expertise? Good people
skills? Creative thinking? Persuasive writing? Oratorical flamboyance?
Golfing ability? A passion for Italian opera? Whatever makes up
the list, by structuring recruiting efforts to search for those
attributes rather than chasing the fallacious rainbow (pardon
the pun) called 'qualified minorities,' a firm will
more likely get a broader pool of acceptable candidates. In that
pool will be lawyers and law students of color who manifest the
desired and truly important attributes.
This expanded pool of candidates is also more likely to produce
recruits who might even remain at the firm for years, if they
possess attributes highly prized and rewarded by the firm. As
one firm that has been consistently successful in recruiting and
retaining lawyers of color notes, 'We look at all sorts of
candidates and make offers based upon their attributes. For example,
if someone is actively involved in extracurricular programs, that
suggests this person is socially active and outgoing and likely
will already be building relationships to assist in business development.
Someone with a passion for moot court may already be exhibiting
the makings of an excellent appellate lawyer. These attributes
are far more revealing and reliable predictors of success in our
firm than law school rankings and grade point averages. It works
for us.' It likely would work for other firms, too.
The quest for 'qualified' minorities is an exercise
in self-defeat. It is not a new quest and has never proved particularly
successful. Surely it is time to discard it and recognized that
a lawyer of color may be as competent or incompetent as any other
member of the profession. But just as we presume that non-minorities
are competent unless they prove otherwise, the same presumption
needs to be extended to lawyers of color. Firms that do so will
find diversity a far less elusive goal. Success speaks for itself.
Sandra S. Yamate is director of the ABA's Commission on Racial and Ethnic Diversity in the Profession. This article is based on an article entitled 'Recruiting Lawyers of Color for Dominant Culture Organizations,' by Sandra S. Yamate, originally published in the May 1999 Chicago Bar Association's CBA Record and is reprinted with permission of the author.
— return to top
to Table of Contents
A NOTE FROM THE OSB DIVERSITY SECTION EXECUTIVE COMMITTEE
It is tempting to attribute slow
progress toward the goal of diversifying the ranks within a particular
office or the bar as a whole to a lack of qualified minorities.
Sandra Yamate's article attempts to get behind and question the
assumptions underlying that conclusion. Before your eyes glaze
over or your stomach begins to burn with irritation at the sight
of one more message from the bar on the subject of diversity,
put yourself in this scenario: You are interviewing for a position
as a summer intern working for the government of Chile. You have
one day to navigate the political terrain and impress the right
people with your skills and intelligence. However, Spanish is
your second language, and you lack the connections of other candidates,
not to mention the ability to sort through nuances of communication
and behavior in order to determine what the interviewers are really
looking for. During the interviews and at lunch, you struggle
to find common ground between your experiences and that of your
interviewers so that you can make them feel comfortable enough
with you to want to hire you. Putting yourself back into the position
of the interviewer, you can begin to understand the difficulty
of assessing the merit of candidates that come from backgrounds
different from the majority of candidates you see. Anyone who
struggles to get behind his assumptions about what a qualified
candidate looks like is doing no less difficult but necessary
work. Sandra Yamate will continue her helpful discussion on the
topic in person at a CLE at the OSB Annual Meeting on Friday,
Oct. 4 in Eugene.