A Conversation About Diversity, Racism and Equality in the Legal Profession

• Jurisdiction: United States,Federal
• Author: By D. Bruce Hoffman
• Publication year: 2021
• Citation: Vol. 31 No. 1

A CONVERSATION ABOUT DIVERSITY, RACISM AND EQUALITY IN THE LEGAL PROFESSION

By D. Bruce Hoffman¹

A goal of the Antitrust and Unfair Competition Law Section is to increase diversity and inclusion in the antitrust bar. This esteemed panel of antitrust experts from in-house, private, and government practice discusses the state of diversity in the field. It also discusses models for increasing diversity in organizations, like the Rooney Rule used by the NFL and the Mansfield Rule increasingly used by legal departments. The panelists share strategies that can be employed at an individual level, for example, engaging in intentional allyship and sponsorship of diverse lawyers. In the end, the panelists agree that speaking up as an individual to support inclusion and foster belonging is key. Remember the power of one.

PANELISTS

Harvey Anderson is General Counsel for HP Inc. Harvey has over 25 years of experience in public policy, regulatory compliance, corporate/commercial transactions and IP litigation. Most recently he served as the Chief Legal Officer of AVG Technologies, and prior to that he spent six years as the Chief Legal Officer of Mozilla. Throughout his career, Harvey has focused on public affairs issues, most notably launching the "Do Not Track" privacy initiative, organizing the SOPA internet protest movement, and serving on the FCC's Open Internet Advisory Committee. Harvey has a J.D. from the University of San Francisco School of Law and a B.S. in Civil Engineering from Marquette University.

John Gibson is a Partner at DLA Piper where he specializes in antitrust, commercial, healthcare, and technology litigation. He was previously a partner and member of the management board of Crowell & Moring LLP. Gibson has won numerous accolades, including being named the 2019 Attorney of the Year by the Thurgood Marshall Bar Association. He also served on the executive committee and board of directors of the Constitutional Rights Foundation. Gibson has a J.D. from University of Michigan Law School and a B.A. from Harvard University.

MR. BRUCE HOFFMAN:

Welcome, everybody, and good afternoon. It's the third day of the 30th Annual Golden State Institute on Antitrust, UCL and Privacy; a great conference. And this panel is a conversation about diversity, racism, and equality in the legal profession. My name's Bruce Hoffman; I'm a partner at Cleary Gottlieb and the former director of the United States Federal Trade Commission. I'm going to, to a large extent, just serve as a moderator for today's conversation.

I'm really pleased and excited to have with me virtually today Harvey Anderson, who's the general counsel of HP, Inc., and John Gibson, who's an antitrust and litigation partner with DLA and that firm's Los Angeles office and a very prominent antitrust litigator, ranked in Best Lawyers in America and an all-around star and I think we're going to have a really good conversation.

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I think we're going to get started by doing a little bit of level-setting or background to try to get a picture, or paint the picture, of where the legal profession and to whatever extent it's ascertainable, the antitrust practice within it, stand on diversity, racism, and equality; all the metrics of inclusion. And with that, let me turn it over to Harvey to talk a little bit about where things stand from the perspective of companies; of corporate clients, corporate entities, and legal departments.

MR. HARVEY ANDERSON:

Yes, Sir. Thank you and thanks for the chance to talk about this today. I think there are two dimensions that I think about. There's the, first, the quantitative dimension and the qualitative dimension. On the quantitative side, at least from the tech sector and I'm from the tech sector and I worked in the valley for most of my career, I think on the D&I side, it's not that great. Just generally speaking, to net it out, you know, the industry's been criticized quite a bit, whether it's, you know, law or engineering or any part of the tech sector as a whole. And specifically, in the legal sector, it's not particularly better. And then from the number's perspective, I mean, if we looked overall across the industry, you see minorities represent about 19 percent of lawyers, black—that's across the U.S.—African Americans about four percent, I think five percent for Latinx and another 4.7 percent or so for Asian Pacific Islanders. And so that's sort of the general context and then I think it just gets—goes down from there.

And then, more importantly, it's not just a number so to speak, who's doing what and where are they on the leadership side? So on the inhouse side, you see, I think about 11 percent of general counsels are minorities and 26 percent are women, so that's still not that great when you think about it and I can almost count the folks that are GC's in the valley that I know that are African American.

But I think the more important number is not a number; it's the qualitative perspective of it. And there's this notion—I don't think we have a good metric for that. We measure engagement scores in our companies but it's this notion of—we call it a sense of belonging and to the extent that that's much higher, you retain more people, it's a more inclusive environment, and I don't think we've done as an industry really well at sort of measuring what that belonging looks like. But that's where a lot of our focus is today, so I'll stop there and let you guys share a bit.

MR. BRUCE HOFFMAN:

Well, John, is the picture any different, better, worse, in the law firm world?

MR. JOHN GIBSON:

Thanks, Bruce. The quick answer is I think it's similar. So first of all, I'm just really grateful to be exchanging ideas here with you and Harvey today. And also, to be talking with and directly, virtually, members of our Golden State Antitrust Bar.

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In terms of big law, we're still looking at—despite very sincere and longstanding programs and intentions—you know, we're still looking at an entrenched system in most of big law where the in-group kind of sponsors and promotes other members of the in-group and that's human nature, in many ways, and so the out-group kind of stays out and the in-group stays in. As an example, at the end of last year, at least, there were—from the Am Law 200 law firms—only 4.4 percent of the non-partner lawyers in those firms were African American. Only two percent of the partners in Am Law 200 firms were African American; two percent compared to over 13 percent in the U.S. population at large, so there's a lot of work to be done. Dramatic underrepresentation, particularly as you escalate the ranks from associate to counsel to partner in big law, so we've got a pipeline problem and we've got a retention and promotion and opportunity problem.

But that's the bad news. The good news is that allyship is alive and well in various pockets and I think what we've got to do is bring that to the mainstream. And here we are in a moment where, unlike really any other in recent memory, we have a lot of people coming together and saying we want to do this. And so I think if we take the current moment and take the allyship that exists in pockets and bring it mainstream, we can make a huge amount of progress here.

MR. BRUCE HOFFMAN:

Harvey and John, one of the things that I've noticed over time—and I'm thinking here about both government enforcement and the government antitrust space and the antitrust bar—is that, you know, Harvey, you said things are, if anything, worse in the valley in certain ways than they are in the population at large. And John, you made the point about how as you go up in the ranks of seniority, you start from an already underrepresented—significant underrepresentation to a really dramatic underrepresentation, as the situation gets worse. And it seemed to me that that's true in antitrust.

You know, antitrust has a reputation, I think, as being one of the less diverse practice areas in the bar. There's been statistics—I know the New York Bar gathered some statistics on that in New York a few years ago. A lot of this is difficult to track because it's a little hard to pin down who's in the antitrust bar, necessarily, since a lot of folks who are antitrust lawyers also litigate other things. But I do know that if you compare, for example, the number of women lawyers, which is about 38 percent overall, to the number of lawyers who are female in the antitrust section, the ABA antitrust section, that's only 27 percent, so that's significant underrepresentation. And anecdotally, the numbers look even worse when you're looking at black or other racial or ethnic or national origin and minorities. Any sense, first of all, whether in your experience that's true and, if so, any ideas why or is there anything about antitrust in particular that's an issue?

MR. JOHN GIBSON:

Well, I'll start. Pretty soon I was going to turn it back to you, Bruce, since given your experience with the Bureau of Competition, but you know, I think that because it is so specialized, I think that, for example, I didn't take the antitrust class in law school and kind of stumbled upon antitrust practice as a litigator 10 years in practice and got very deeply into it, obviously. But I think that we're—it's not, you know, widely known and solicited as an expertise and practice area where there are a significant amount of attorneys of color. So I think that's one issue when folks are being recruited out of law school and recruited into law schools and, in fact, recruited into law firms and other places, I think there's often not a lot of discussion about antitrust as being a hot area for you as an attorney of color.

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MR. BRUCE HOFFMAN:

That makes a lot of sense. In fact, I think we're going to talk in a little bit about some specific experiences with the FTC with HP and otherwise. But before turning to that, just to pick up on the point you just made, John, about people not being aware of or not feeling like whatever opportunity there is in antitrust...