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[BALANCE]--Are White Men the Best Lawyers?

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 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.


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Your characterization of Mr. Frank's comments is absurd. He never makes any sort of suggestion that white people are better lawyers. His point was that the client who selects a lawyer based on skin color rather than legal ability will suffer for it economically. He's absolutely right, too.

To put his point in simpler terms, if you were on trial for murder, would you want (a) the lawyer most likely to get you acquitted or (b) the BLACK lawyer most likely to get you acquitted? I'm picking (a), and anybody else with a grain of intelligence does too. Sometimes (a) and (b) will be the same person (see, e.g., Johnny Cochran). But sometimes (a) will be white or yellow or red, and the murder defendant who selects a lesser attorney because the lesser attorney fits the right racial profile does so at his peril.

It's simple mathematics; if a client excludes sets of lawyers based on factors having nothing to do with legal ability/value (race, gender, sexual orientation, left-or-right handedness, weight, eye color, whatever) then the client risks excluding the best lawyer(s) for the job. The client then ends up selecting the best lawyers from a diminished pool, which is a mistake economically.

So, Miss Black, I am curious. If you were on trial for murder, would you select (a) the best lawyer or (b) the best BLACK / FEMALE / HOMOSEXUAL / INSERT GROUP YOU LIKE HERE lawyer?


If I were going to select an *individual* lawyer, I'd choose one with the best track record--especially if my freedom were on the line. But, if faced with a choice between two very good, highly recommended criminal defense attorneys, I would definitely consider choosing the minority, the woman, etc., although that wouldn't be the decisive factor for me.

But, if I were the president of a huge corporation faced with the decision of choosing a *law firm* to represent my company's interests, in most cases, I would absolutely consider that firm's diversity track record--but again, that might not be the primary decisive factor. I'll address that more fully below.

But, respectfully, Octoroom, I think that your analogy is "absurd". You're comparing apples to oranges.

Many "big law" firms are one and the same--just a different name. They're made up of hundreds, if not thousands, of attorneys--not just one----nearly all of whom were at the top of their classes at an elite law school. From the perspective of a large company with an assortment of legal needs, in my opinion, one's just as good as the other, and there's absolutely no reason *not* to consider other factors aside from the firm's legal prowess, such as the firm's diversity track record.

That being said, if the company had a very specific legal need regarding one legal matter, as opposed to simply choosing a firm to have on retainer, then the firm's prowess in that particular specialty might become a far more important consideration than the firm's diversity track record.


The problem with the fungibility argument is that law firms and lawyers are never actually fungible. People are different and law firms are different, and when a corporation or other client starts making decisions based on the number of black people at the firm, the corporation makes an economic mistake. It would be one thing if we were talking about steering business away from firms that actively discriminate against black people, but what you're suggesting is that a firm that has never discriminated but just, for whatever reason, doesn't have enough black folks would not be selected by you. That's just plain racist.

But let me ask you another question. You've already told me that if you needed a law firm to do some work for you, and there were two "equally good" firms, you tell me you would pick the one with more black people because there are more black people there and you apparently have a thing for black people. You call it a "diversity track record," but we all know that's just code for having a lot of black people.

So tell me this: suppose I needed a law firm, and there were two equal firms. Would there be anything inappropriate about me picking the one with more white people on that basis? What if I had a tax law question and I picked the law firm with more Jews on that basis? Anything wrong with doing that?


One other quick comment.

You wrote:
"From the perspective of a large company with an assortment of legal needs, in my opinion, one's just as good as the other, and there's absolutely no reason *not* to consider other factors aside from the firm's legal prowess, such as the firm's diversity track record."

There is a very good reason not to consider a firm's "diversity track record." The reason is that supposedly the American aspiration is to live in a society that doesn't just people based on their skin color ("I have a dream..."). When a corporation like Wal-Mart selects law firms based on the skin color of the partners and associates there, Wal-Mart is doing something that a lot of folks, including me, think is simply racist and inappropriate in modern, civilized society.

In my law class, the black kids invariably got significantly better employment offers than similarly qualified white kids. The reason for this is the "commitment to diversity" of the large firms, which makes a black guy with a 2.5 as good a white guy with a 3.0. Years ago, the black guy with the 3.0 was as good as the white guy with a 2.5. We all thought that was inappropriate then, and we should think the same thing now.


Octoroon--First off, thanks for your comments. I do appreciate them.

Second--for me, it's more an issue of diversity across the board. It's not just an issue of the number of black attorneys. I don't think that there's anything wrong with considering the number of non-white males in the upper ranks of a firm (ie.--partners) when determining which firm to hire. A more diverse partnership speaks to the law firm's culture and attitudes.

The number of non-white male associates is, quite frankly, irrelevant to me--that statistic is simply lip service that firms pay to try to appear to be more diverse.

And, we're talking about a private entity here, as well. It is free to factor in any number of considerations when choosing which legal counsel to hire. Diversity at the top is a perfectly valid consideration, in my opinion. If a company wanted to pick an all white firm, more power to them. I just hope that the company kept that to themselves, since it would likely be bad publicity if that were to get out.

There's nothing wrong with taking that into consideration when hiring any compnay, and many people do just that. I know plenty of black people that try to hire other black people, women that try to hire other women, Jews that try to hire other Jews. It's simply a matter of supporting business people in your own community. There's nothing wrong with that practice either.

Bottom line for me--race, ethnicity, diversity, gender, etc. are valid factors--but not the only factors-- to consider when deciding who to hire, be it a lawyer, marketing agency, physician or house painter.

Finally, this will likely be my last comment in this thread, since I'm in the middle of getting ready for a week-long trip. I'll likely post one or two posts later on today, which will be my last posts until the second week of January. Normally, I'd be more than happy to go back and forth on this one, but may not be able to this time around due to time constraints. Just wanted to make sure you knew that if I don't respond after this comment, it's nothing personal;)


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