The premise underlying this post from Overlawyered seems to contend that they are. In it, Ted Frank expresses his disagreement with the decision of some large law firm clients (such as Wal-Mart) to conduct business only with law firms holding good diversity records, as reported in this Law.com article. At the end of the post, he states:
Stories like this put the lie to any claim that African-American participation in big law firms is hindered by racism; if anything, law firms are forced by this socially-accepted racism to compete against one another to recruit and retain the few African-American attorneys out there, because clients apparently value the sneetches with the stars on their bellies more than sneetches who are merely the best lawyers, and shareholders tolerate this dissipation of value. (Emphasis added).
Now, I'm a big fan of Overlawyered and greatly appreciate the perspective provided by that blog. But, I respectfully disagree with the contention that those currently at the top of law firms--the white male partners--are necessarily the best lawyers.
To agree with that premise, one must accept the idea that law firms are not shaped by institutional racism and sexism. One must accept the idea that people make partner simply based upon their skills as an attorney, rather than as a result of who they know and how much money they bring in as a result of their contacts. One must accept that idea that partners in law firms are not, at the very least, subconsciously influenced by their socialization in a culture that is subversively racist and sexist. One must accept the idea that preconceived notions about the role of women or minorities don't exist. One must accept that clients, judges, and other lawyers do not presume the incompetence of an attorney--a presumption that can be overcome, but it's an uphill battle--simply by virtue of their race or gender and that those very same clients, judges and lawyers presume the competence of white male attorneys until that competence is disproved.
One must accept the idea that legal employers across the board don't penalize women for taking "extended" leaves of absence--a.k.a. "maternity leave"-- during their "peak years" as an associate. One must accept that idea that women are not penalized for leaving work early due to a childcare emergency while men are not penalized for leaving work early for a golf game.
I, for one, don't accept those notions and thus respectfully disagree with the premise of Mr. Frank's post. I do agree that many white male partners are excellent lawyers. However, I think that there are many excellent women and minority attorneys out there who simply got tired of swimming upstream. Who got tired of having to constantly disprove the presumption that they were incompetent or more competent than their less experienced white male colleagues. Who got tired of having to repeatedly correct secretaries and lawyers who assumed that they were either a paralegal or secretary, but certainly not a lawyer. Who got tired of hearing the same old generalizations--the jail is no place for women attorneys--[women or minority] lawyers are too timid, too assertive, too quiet, too brassy--women write better than men--white people write better than black people--white men are better lawyers. Who got tired, so tired, and simply dropped out of the rat race toward partnership.
This article, which discusses a recent study regarding the high attrition rate of black lawyers in law firms, tends to support my conclusion, as do any number of recent studies regarding the low percentage of women associates who make partner.
That being said, I can see where Mr. Frank is coming from and certainly respect his opinion and his perspective. And, I realize that one's take on this issue has an awful lot to do with one's perspective. But, from where I sit, the decision of those big law firm clients to support diverse law firms makes sense and does no harm. And, it may actually do a heck of a lot of good. But that's just my perspective.
The Wall Street Journal blog also has a post with a lively comments section regarding Ted Frank's post on this issue.