How Racial Preferences Pigeonhole Minority Lawyers

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How would you feel if your business forced you to do something based solely on your race? For some minority lawyers, that’s a reality.

Racial preferences from clients take minority lawyers away from cases they’d prefer to work on, all to fulfill a quota.

GianCarlo Canaparo, a legal fellow at The Heritage Foundation (of which The Daily Signal is the news outlet), says that this can lead to mismatches in what a lawyer wants to do, and what he or she is forced to do. In some cases, that can lead to minority lawyers leaving their firms, exacerbating the problem.

“[Law firms] may pull a minority associate off cases that he or she wants to work on and put them on these matters, sometimes against their will, just so that they can fulfill these quotas,” Canaparo explains.

Canaparo joins the show to talk about racial preferences and how they affect the careers of minority lawyers.

We also cover these stories:

  • President Joe Biden unveils a new, pared-down version of Democrats’ social welfare spending bill.
  • Sen. Bernie Sanders, I-Vt., expresses reservations about cuts to the spending bill.
  • The NAACP asks professional athletes to boycott Texas over the state’s laws on abortion, voting rights, and COVID-19 mask mandates.

We also have a discussion about Halloween and some of the festivities that The Daily Signal team will take part in.

Listen to the podcast below or read the lightly edited transcript.

Doug Blair: Our guest today is GianCarlo Canaparo, a legal fellow at The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. GianCarlo, welcome to the show.

GianCarlo Canaparo: Thanks for having me, Doug.

Blair: Awesome. So, GianCarlo, you wrote a piece titled “How Clients’ Racial Preferences Hurt Minority Lawyers.” And the gist of this piece is that minority lawyers are being pigeonholed into cases that they aren’t right for or that they don’t really want to be doing simply based on the fact that the clients want a racially diverse group of lawyers to do the case work for them.

How prevalent would you say that this issue of lawyers being kind of pushed into cases that they’re not comfortable with or they’re not wanting to do based on their racial identity is?

Canaparo: Very prevalent. Let me take it a step back and explain how this works and you can see the incentives that are at work here and how this plays out. So, you have these big law firms and they’ve got huge clients, Fortune 500 companies that are able to throw tons of money at them. And … the clients will say, to increase diversity in the legal profession at large, what they’ll say is, “If you want any of our business, you must staff the cases that you work for us with a certain percentage or a certain quota of minority lawyers.”

Now, there’s a problem with this because most of these law firms don’t have what you’d call a representative population of minority lawyers in the firm. So if … about 13% of the country’s black, there are not 13% of these law firms that are black. And we’ll get into why that is in a minute. But that puts the law firms in a bind where they don’t have enough minority associates to staff these matters in accordance with the quotas organically.

So what they do is they force minority associates to work on them. So they may pull a minority associate off cases that he or she wants to work on and put them on these matters sometimes against their will just so that they can fulfill these quotas. So that’s what’s going on. This has been going on. This kind of push started about 20 years ago and has really ramped up in the last few years.

Blair: I guess the title of the piece is “Racial Preferences,” is it specifically race or are there other sort of denominators like gender, sexual orientation that other clients are saying, “I want a gay lawyer on my case,” or, “I want a female lawyer on my case”?

Canaparo: Not that I’m aware of. It has historically been focused on race and for the most, as far as I’m aware, continues to be focused on race.

Blair: And is there any particular reason that it’s specifically focused on that? I know a lot of things these days sort of tend to be diversity of all sorts of angles like race, sexual orientation, and gender. Is there any particular reason that race seems to be the focus in most law firms?

Canaparo: I think because some racial minorities, Hispanics and blacks, tend to be underrepresented in firms in terms of as a proportion of their population in the total United States. They’re not represented the same rate within law firms. Whereas other minorities like Asians tend to be overrepresented. But that historical underrepresentation has lingered for a long time. So I think that’s why that focus is there.

Blair: So there’s this old saying I think pretty much everybody’s familiar with that the road to hell is paved with good intentions. Is that sort of what’s going on here where this is a good intention that’s being executed poorly?

Canaparo: Yes, that’s exactly what’s happening. And the way this came to my attention is with discussions with friends of mine who are lawyers in these firms.

One in particular who I talk about, whose story I recount in the article, she’s said she had been working on certain matters, that she has certain preferences. Part of what is valuable to you in your career is your control over your own career. So she prefers to work with certain partners and not other partners. She prefers to work on certain kinds of cases, not other kinds of cases. But the firm comes in and says, “Look, we’ve got half a million dollars in legal fees on the line. You don’t get a choice anymore. You get to work on this matter.”

And the firms, the clients will say, “Well, our matters are the best, they’re the biggest ones.” And so of course the associates want to work on them. And we’re just concerned that associates that are minorities are not getting to work on them.

The problem is, for associates, that is a solution for associates who want to work on those matters, but aren’t getting to, which is probably not actually happening given the market dynamics of law firms. But it becomes an active harm when an associate doesn’t want to work on those matters and has her control over her own career stripped away from her so that she can be, essentially, tokenized to satisfy a client demand.

Blair: You mentioned very briefly that in your piece, there’s this friend who has experienced this sort of racial reshuffling, where it’s like, “We want you to work on this piece or this case instead of this case.” And then the lawyer would say, “Well, I don’t really want to do that.” And they say, “Well, tough, you need to do it anyway because the client wants a racial minority to work on this case.”

Could you go maybe into some of the other issues that crop up with minority lawyers if they’re kind of taken away from a case they really want to work on, or given a case that a client says, “I want a racially diverse team”?

Canaparo: Yeah, sure. Well, back to the first point, she loses the control over her career. One of the justifications for these kinds of things is that they increase opportunity for minority lawyers, but the counter to that is, isn’t the ability to choose and develop your own career itself an opportunity? Which, of course it is.

So … this ironic incentive is created where this lawyer starts to be forced to work on things she doesn’t really want to work on. She has no control over her career development, which partners she gets to spend time with and develop relationships with for promotion advancement. No control over the skills that she gets to develop. And that creates an incentive for her actually to leave the firm, which means that you have the perverse incentive where you’re actually encouraging some minority lawyers to leave the firm, which only perpetuates the racial disparity that the clients are ostensibly trying to remedy.

Blair: Yeah. I’m really glad that you brought that up, actually, because you did mention in your piece that retention rates for employees who are sort of, “Hey, you’re a black lawyer, we need you to work on this case,” that would definitely affect their retention rate.

Have we seen that kind of play out in these law firms where lawyers who are being moved on the basis of their race are starting to leave?

Canaparo: There isn’t data on that exactly, but minority lawyers do. Some minority lawyers, again, do have much lower retention rates than other groups. So black lawyers in particular have very low retention rates compared to other racial groups.

Blair: One of the things that you also discussed in your piece is the kind of implication by a lot of clients that the reason there are these sort of underrepresented groups, I guess, they’re not represented as a proportion of the population, is that there’s discriminatory hiring practices.

Some clients might in infer that, “Oh, there’s not enough black lawyers, therefore it’s because the business is not hiring black lawyers based on some form of discrimination.” Is that true? And then, if that is true or if it’s not true, what is at play?

Canaparo: Yeah. I think when clients impose these racial quotas on law firms, they don’t actually do a good job of explaining why they’re doing it. So what I tried to do in the piece is, when would it make sense to do this and why, if you were the client in that position, why would you do it? … The most plausible argument seems to be that it would help firms to hire more minority associates. Because now they’ve got a demand from the clients for the minority associates they need to fill.

And if clients were just looking at the pool of minority candidates and saying, “We don’t want minority candidates, we want Asians and whites,” this would fix that problem, but this hasn’t fixed the problem because that is not the problem.

Law firms are not discriminating in hiring. In fact, quite the opposite. In part in response to this incentive, law firms have increased their outreach to minority law students and even minority college students to be considering law school in a big way. And in fact, they will even sometimes pay recruiters premiums to get minority lawyers, but that doesn’t solve the problem because when you look at the pool of law school applicants, the disparity is already present.

There isn’t a pool to pull from at a representative rate. So the problem, whatever it is, is happening long before the law firms are making their hiring decisions. So that’s why in the piece I call this symptomatic treatment. Because it’s trying to treat the symptom, which is disparities in law firms, without addressing or even reckoning with whatever is causing the disparity in law schools to begin with.

Blair: From what it sounds like you’re saying is that this is sort of treating a symptom of the greater illness of there’s not enough minority lawyers or minority employees at these businesses. And so, well, they’re just seeing that so they’re not going to actually attack the root cause. Is that kind of what you’re saying?

Canaparo: Right, right. In part, because I think nobody knows what the root cause really is. When you’re going to look at why do, say, black students, we’re actually starting even before that, black children, why are they going to college at lower rates? Why are they graduating from college at lower rates? Why are they going to law school at lower rates? Why are they graduating from law school at lower rates?

These are all four inflection points that have sort of a path-determinate effect on the hiring of lawyers and what leads to the disparate lack of population representation in law firms. There’s a whole stream of causation leading up to that point that these clients aren’t engaging with and they’re trying to sort of impose a top-down remedy that just cannot work.

Blair: OK. So if clients then want this increased representation of racial groups on their law teams, what are some better options for them currently? I think we’ve discussed that there’s something that’s more at the sort of lower levels of the chain that involves encouraging black students to apply for law schools or getting black law school students into jobs and such. It’s not being properly solved at the level of, we need just more minority lawyers currently on the teams to go to cases that they don’t want to go to. So acknowledging that those are problems, what is the solution for clients who want to have a racially diverse law team?

Canaparo: Yeah. Well, the problem is, with anything when you’re talking about the problems of racial disparities in the marketplace, there isn’t a magic solution.

Thomas Sowell is very famous for saying, “There are no solutions, there are only trade-offs.” And he would be the first to tell you that the causes of racial disparities are incredibly complex and myriad. But if you are a corporate lawyer who wants to impose this kind of quota on your law firms, what is sort of within your power to do is to focus on the streams leading into law school and leading from law school to these big law firms.

So you would be in a good position, say, to mentor college students, to mentor law students, to encourage high school students to appreciate, especially in inner cities or poorer neighborhoods, to appreciate that there are options and ways to get into the legal profession.

Well, if you want a remedy or you want the population within law firms to be more equal, you have to be focusing on the upstream. But if you’re trying to focus only on the law firm, the causes have already happened and you’re not going to fix anything. Because remember with a finite supply of minority lawyers, you move one onto one matter, you take him or her off another. Again, there aren’t enough minority lawyers to meet these quotas organically.

Blair: I’m curious because you’ve mentioned that you spoke with friends of yours who have experienced some of this racial reshuffling in their professional lives as well. Do they have any ideas that they can sort of posit as like, “Well, as somebody who’s experienced this, this is how I would prefer it be done,” or is it sort of like they don’t really know either?

Canaparo: Well, within the law firm, the sense is very much, “Leave me alone and let me manage my own career as best I can.” I mean, what more does anyone ask for? They want the same opportunities that everyone else has, which is the opportunity to pick and choose to manage your own career as best you can. And that’s the problem with these racial quotas, is that they deny minority lawyers that opportunity.

Blair: Well, before we leave, I would be remiss if I didn’t mention that you also host a podcast here at The Heritage Foundation called “SCOTUS 101.” It’s a great show. If you haven’t checked it out yet, you totally should. Can you tell us a little bit more about that podcast, what you do, what you talk about?

Canaparo: Yeah, the podcast follows the Supreme Court just about every week that it is in session or issuing opinions. We unpack it in in a way meant for non-lawyers to sort of understand what’s going on at the Supreme Court. We have interviews every week with federal judges so that you can get a sense of how they do what they do, with Supreme Court advocates so you can see how that process works out, with the journalists and with law professors to help unpack some of those complicated legal issues that get argued.

Blair: Cool. And could you maybe give our listeners, and I don’t want to spoil anything, of course, but could you maybe give our listeners a brief rundown and what you guys will be talking about maybe in the next couple weeks in the near future? What’s on the docket?

Canaparo: Yeah, absolutely. So the next couple weeks, as you know, the Texas abortion law is being argued at the beginning of November. So we will be covering that pretty extensively. The big abortion case, which is called Dobbs, is going to be argued at the beginning of January. We’re going to try to have some law professors and some other professors on to sort of unpack the issues there and what the stakes are for the court going forward.

Blair: Cool. So if our listeners want to check out some of your work or perhaps if they are intrigued by “SCOTUS 101,” they want to maybe listen to “SCOTUS 101,” where should they go?

Canaparo: Well, wherever you’re listening to this podcast right now, probably just a page next door is “SCOTUS 101” since I sit in this very same studio to record it, usually in your seat. And I write a lot for The Daily Signal. My longer form pieces are either on heritage.org or SSRN. And I’m on Twitter too, somewhat reluctantly, @GCanaparo.

Blair: Excellent. Well, that was GianCarlo Canaparo, a legal fellow at The Heritage Foundation’s Edward Meese III Center for Legal and Judicial Studies and, of course, co-host of “SCOTUS 101.” GianCarlo, thank you so much again for joining us.

Canaparo: Thanks, Doug.

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