In an op-ed run by The American Lawyer in January, longtime attorney Don Prophete, a partner at the national law firm Constangy, Brooks, Smith & Prophete, called out the legal community for its longtime failure to implement lasting and meaningful diversity. His commentary—and criticism—came days after more than 170 general counsel and other corporate attorneys signed a letter pledging to prioritize business with law firms that advance diversity. D&I In Practice editor Lisa Roth talked to Prophete about why he felt the time was right to pen this commentary, who is responsible for making change happen, and why diversity will only become a reality when there are more powerful partners—not associates—of color.
LR: You’ve been practicing law for almost three decades. Why did you write this op-ed now?
DP: I found that there lacked a certain amount of candor with respect to accountability related to what employers are really doing with their outside counsel engagements. I felt like it had become more of a PR pursuit. I wanted to inject the view that a lot of lawyers of color simply are not buying these pronouncements anymore. I’ve been in the room many, many times with lawyers of color, and most have become hostile towards these letters and statements because nothing has changed from the perspective of engagement of lawyers of color.
LR: In your op-ed, you talked about “broad stroke common sense approaches” to making diversity a reality. What does that look like in practice?
DP: I think there are two things that we need to do. One, we have to provide commerce to capable senior leaders who can then go out and help recruit and keep diverse lawyers busy. Two, law firm leaders must develop a genuine interest and commitment in bringing diverse lawyers in a non-turnstile manner. And it’s got to come from the top down. It can’t be something that’s just expected to manifest itself magically because it’s the right thing to do.
There need to be more specific steps taken to resolving the problem. You need to have much more accountability. It needs to be more focused. It needs to be something that’s more driven. It needs to be something that the law firm wants to do as a law firm, as an executive committee—and that is driven through the partnership. Law firm leaders can’t simply say, ‘Well, partners, here’s what generally we want, so figure out how to do [it.]’ That’s never worked.
LR: Who is responsible for making these changes? To what extent do you think this change needs to be driven by partners of color or is it all partners’ responsibility?
DP: It’s incumbent on every partner to do this. Partners of color generally don’t have power in law firms, so they can’t move the needle without having major commercial support. By that I mean, a partner of color doesn’t have power to do anything unless that partner of color has business. That’s the way it works in law firms. So they’re not able to dictate terms, but they have to be as responsible in grooming, developing and identifying potential diverse lawyers as their counterpart partners.
LR: Would it make a difference if incoming associates had the same access to partners and cases from the time they arrived at a firm?
DP: Absolutely. The focus has been on mentorship. The forced mentorship thing doesn’t work, because what happens is that the organic nature of the relationship is missing. You can’t force a relationship between people. What you can do is force people to have the same access to high quality work. Force them to have access to secondment opportunities just like other lawyers. Force them to have opportunities to go on pitches, just like other lawyers. Force them to have an equal playing field, not simply be window dressing. This would make a huge difference.
The ecosystem is not a friendly ecosystem for racially diverse lawyers. We know that…[yet] we never go straight to the core of the problem and work to create an ecosystem that’s going to be as friendly to diverse lawyers as non-diverse lawyers. Law firms must be accountable for creating the same amount of opportunities for racially diverse lawyers. When law firms want to increase business in a sector of industry, they are laser focused on accomplishing this task. Truly committed law firms need to apply the same level of laser focus to diversifying the profession properly.
LR: How does your firm approach diversity efforts?
DP: We’re not perfect here either. We still have offices that do not have racially diverse lawyers, and that have never had racially diverse lawyers in locations where they should easily have racially diverse lawyers. That’s not an acceptable thing. We need to continue to sharpen our tools and our internal guidelines and policies to ensure that there is a strong amount of accountability in this and all other firms. And if the people in certain offices don’t want to be part of building a diverse firm, then they should be asked to leave. Take for instance how a law firm would handle a partner who does not bill his time or do the minimum requirements to perform at a high level. That partner would be exited in short order. Diversity should have an equal amount of importance in the fulcrum of law practice.
"The ecosystem is not a friendly ecosystem for racially diverse lawyers. We know that…[yet] we never go straight to the core of the problem and work to create an ecosystem that’s going to be as friendly to diverse lawyers as non-diverse lawyers...When law firms want to increase business in a sector of industry, they are laser focus on accomplishing this task. Truly committed law firms need to apply the same level of laser focus to diversifying the profession properly."
LR: Are you one of the only partners of color at your firm?
DP: No. But all of the partners of color are people who came with me when I made the move here or who I’ve hired or historically recruited.
We cannot have sustained, successful diversity simply by hiring associates. And moving them through the turnstile process. That’s not how you create lasting diversity. You have to hire partners of color who then will help hire associates. That’s the only way the concept of lasting diversity takes root in a firm. If you don’t create a strong network of commercially and professionally successful partners of color, the ecosystem breaks down. It is not self sustaining. It lacks the roots for organic development.
LR: Is this an issue that could also be considered a pipeline problem?
DP: The pipeline issue is very important in that our pool is shrinking. We’re having these law schools admitting fewer racially diverse [students] because fewer racially diverse [students] are applying as well. So it’s a dual problem. The profession must start with the recruitment of racially diverse [law students] in law schools; you have to start figuring out how to work with the law schools to address that pool problem. And then once you’ve increased your pipeline, then you have to have a system in the law firm that truly supports diversity.
This is what law firms do at the moment: Clients say we’d like to see more diversity, so they go hire associates and then they apply a turnstile approach to their population. That will never create the permanency, the imprint, that I’m assuming they want. This is just a band-aid solution.
LR: So what is the real metric for you when assessing diversity?
DP: The most important component in creating this ecosystem is empowering partners of color through business development to then help diversify their firms. Optimally, these partners would have the ability to identify other partners for recruitment and develop associates on their work files. Here’s the stark reality, very few of us want to be the only ones who look like us in a firm. Everyone else has their micro-villages in law firm. We operate on our own.
For me, the bottom line is empowerment through business. We need to have more client engagement, genuine client engagement, in forcing this issue of diversification through real commercial empowerment. And the way you force the issue of diversity is by providing more commercial opportunities to diverse partners who can then help disseminate work, mentor people of color, and grow it that way. It doesn’t work the other way around.
It doesn’t work by saying, well, we’re going to go ahead and hire a bunch of associate to work on files and when they leave after three years of disenfranchisement then we’ll replenish their numbers by recruiting yet other junior lawyers. This poorly conceived approach is why lasting and successful diversification has not taken root in the profession. The system is not properly balanced. You cannot create a system that’s going to be permanent by implementing a series of for temporary-driven steps.
This interview has been edited for clarity and length.