Forcing Law Firms to Use Quotas in Staffing Cases Is a Very Bad, No Good, Terrible Idea

Federal Judge Orders Class Counsel to Try for More Diverse Legal Team | ABA Journal

"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," Baer wrote. “It is hereby ordered that co-lead counsel … shall make every effort to assign to this matter at least one minority lawyer and one woman lawyer with requisite experience.”

Where to begin.

We operate in a framework wherein employers are already prohibited from discriminating against employees on the basis of race or gender, and rightfully so. Given that framework, it strikes me as unnecessary for the government to step in and mandate that a law firm give out internal work assignments to attorneys of a particular race or gender. To the extent an attorney at any firm feels they are being discriminated against based on these factors, they have adequate remedies available at law. But this firm in particular, Labaton Sucharow is an exceptionally good one, an incredibly reputable one, and one with some very well-known, high-ranking minority partners. Making such a drastic step both seemingly inappropriate and entirely uncalled for.

Turning to the issue of how law firms work, the order is even more suspect. Lets say we have a firm of 50 attorneys. Of these attorneys, 5 work on a particular case. The other 45 attorneys work on other cases. Given the demographics of law schools and law firms, it would be entirely reasonable for a particular case to be staffed without having both a female attorney and a minority attorney. In a big securities class action that has been going on for years, it would be entirely inefficient for a firm to restructure the staffing on the case to ensure that it met a particular quota.

Beyond this, why are the quotas limited to categories of "woman" and "minority"? What about further breaking it down to ensure there is at least one Asian attorney. One black attorney. One Hispanic attorney. One attorney who is Catholic. Doubtless there are members of the class who are gay, so why not require at least one gay attorney on the case?

If the concern is that big cases are not staffed with enough diversity, then that concern is best addressed by focusing causes rather than symptoms. To be clear, ordering firms to staff big cases with a certain mix of attorneys does nothing to address the underlying issue itself. That issue, generally speaking, is a lack of diversity at big firms.

But let's be real: Nobody can say, with a straight face, that prominent law firms engage in a pattern or practice of discriminatory hiring. These law firms hire primarily from elite schools. As you work your way down from the top, starting with Yale and Harvard, its a sliding scale that mixes school, grades, law review, work experience, connections, and other credentials. Young people who are black or Hispanic are far less likely to go to college, let alone law school, let alone an elite law school that would set them up for a shot at jobs with prominent law firms.

So when a prominant law firm staffs a case with a team of 5 attorneys, most of them white and most of them male, it is not a product of that law firm engaging in any sort of discriminatory conduct. It is, instead, quite simply a natural product of larger societal structures. So if someone wants a more diverse mix of attorneys working on big cases at big firms, they should start at the bottom, trying to steer a more diverse mix of people into the front end of that pipeline.