Diversity, Inclusion and Veterans in the Law.

• Author: Redmond, Robert F.

THIS article examines recent diversity and inclusion efforts in the law and their relationship to veterans. In recent years, the legal community has turned its focus to diversity and inclusion. Judges, lawyers, scholars and clients have examined the role of women attorneys, attorneys of color, LGBTQ attorneys and disabled attorneys and developed plans and programs to provide concrete advancement opportunities for these groups. These programs are based on established public policy and statistical analyses that suggest that these groups are underrepresented in the more coveted positions of the legal field.

Two such programs are:

1) The Mansfield Rule, (1) and;

2) the 2018 Guidelines and Best Practices for Large and Mass-Tort MDLs ("2018 MDL Guidelines" or "2018 Guidelines"), (2) as amended by the 2021 Inclusivity and Excellence Guidelines ("2021 Inclusivity Guidelines"). (3)

The Mansfield Rule is a popular diversity metric that, at this writing, dozens of large corporations and over 117 large law firms have adopted.

The Mansfield Rule "measures whether law firms have affirmatively considered at least 30 percent women, lawyers of color, LGBTQ+ lawyers, and lawyers with disabilities for leadership and governance roles, equity partner promotions, formal client pitch opportunities, and senior lateral positions." (4)

The 2018 MDL Guidelines, as amended by the 2021 Inclusivity Guidelines, are standards judges, scholars and practicing lawyers developed to improve the diversity of court-appointed panels in MDL and class action litigation. The 2018 Guidelines, as amended by the 2021 Inclusivity Guidelines, spell out concrete steps that MDL and class action judges should take to ensure that courts appoint diverse counsel to significant positions in MDL and class litigation panels.

Both the Mansfield Rule and the 2018 MDL Guidelines are merited efforts to bring diversity to the more coveted positions of the law. Unfortunately, both efforts fail to include veterans in their efforts to improve diversity. Indeed, neither the Mansfield Rule, the 2018 MDL Guidelines, nor the 2021 Inclusivity Guidelines ever mention veterans. This omission undermines these well-intentioned efforts by decoupling the efforts from established public policy.

There is a well-grounded public policy rationale for advantageous treatment of women, persons of color, and those with disability based on a lattice-work of statutes, regulations, and state and federal court decisions. There is a developing public policy rationale for advantageous treatment of LGBTQ+ persons based on federal regulations and state laws. There is no rationale for excluding veterans from similarly advantageous treatment. In fact, the public policy of this country for over 200 years has expressly provided advantageous treatment to veterans. (5)

This long-standing public policy was aptly described by Justice William O. Douglas 75 years ago:

The Act (6) was designed to protect the veteran in several ways. He who was called to the colors was not to be penalized on his return by reason of his absence from his civilian job. He was, moreover, to gain by his service for his country an advantage which the law withheld from those who stayed behind... This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need." (7) The same type of demographic data that the Mansfield Rule and the 2018 MDL Guidelines rely upon also shows that veterans are underrepresented in coveted positions in the legal field including large law firm partnerships and judicial clerkships. (8)

By decoupling diversity and inclusion efforts from established public policy regarding veterans, proponents of such efforts risk losing public support for those efforts and risk having those efforts mischaracterized as "woke" decrees from disconnected elites. In short, the omission of veterans undermines the well-intentioned efforts and salutary purposes of the Mansfield Rule and the 2018 MDL Guidelines. Veterans should be included in these programs.

1. The Mansfield Rule

   The Mansfield Rule originated at the 2016 Women in Law Hackathon. (9) The 2016 Women in Law Hackathon was a competition among nine teams consisting of "54 high level law firm partners," 18 expert advisors and 9 Stanford Law students. (10) Based on a review of publicly available media, (11) none of the 81 law firm leaders, attorneys, consultants and law students competing in the 2016 Women in Law Hackathon was a veteran. (12)

   The Mansfield Rule was not the winning proposal, but it was deemed "Crowd Favorite". (13) The Mansfield Rule patterned itself on the National Football League's "Rooney Rule" and sought to "introduce individuals into the candidate pool who might otherwise be overlooked as a result of conscious or unconscious bias." (14) The Mansfield Rule, like the Rooney Rule, assumes that requiring consideration of underrepresented applicants will diversify the pool of successful candidates.

   The Mansfield Rule "measures whether law firms have affirmatively considered at least 30 percent women, lawyers of color, LGBTQ+ lawyers, and lawyers with disabilities for leadership and governance roles, equity partner promotions, formal client pitch opportunities, and senior lateral positions." (15)

   The Mansfield Rule uses law firm financial dynamics to pressure law firms to meet the Mansfield Rule metrics. Diversity Labs offered tactics for client corporations to use to encourage compliance with the Mansfield Rule:

   Consider incentives for achieving goals, holdback of fees until goals are met, public accolades like company recognition awards, or simply moving work away from firms that aren't making progress; (16) Include diversity at the lead partner and senior associate levels as an explicit requirement on RFPs/pitch teams before you make new hiring decisions; (17) Get to know diverse attorneys at your existing firms and staff them at all levels on your matters, especially at the relationship partner level. Inform your firms that you will move work away if diverse teams are not working on your matters--and follow through; (18) Ask your law firms if and how origination credit is awarded to ensure that the diverse lawyers leading your matters are receiving all or partial credit for the engagement; (19) Learn the partnership decision process and timeline as well as the bonus practices for your law firms, and provide meaningful, early feedback for diverse associates and partners you work with, so they get full consideration; (20) and Let your relationship partners know you want to see them mentoring and sponsoring diverse attorneys in their practice groups and more broadly at their firms. (21) The tactics outlined by Diversity Labs appear to be working. When Diversity Labs first introduced the Mansfield Rule in 2017, 42 law firms agreed to comply. (22) By 2020, 117 law firms agreed to comply. (23) Law firms must agree to allow Diversity Labs to audit the firm's compliance with the Mansfield Rule bi-annually in order to be certified annually as compliant with Mansfield Rule. (24) Law firms that are certified as compliant with the Mansfield Rule may advertise that fact on their websites and promotional materials.

   Diversity Labs summarized law firm compliance with the Mansfield Rule in the first year--2017--as follows:

   * 66% of firms reported a higher percentage of diverse (25) attorneys participating in formal pitches.

   * 55% of firms reported a higher percentage of diverse attorneys elected or appointed to their

   Management/Executive Committee.

   * 53% of firms increased the percentage of underrepresented lawyers in Office Head positions.

   * 50% of firms promoted a higher percentage of diverse lawyers into equity partnership. (26)

   Recent law firm compliance is even more marked. As of 2020, Diversity Labs reports:

   * 96% of firms said that after adopting the Mansfield Rule, their teams of lawyers participating in formal pitch meetings have become more diverse.

   * 65% of firms reported that more underrepresented lawyers were appointed or elected to their

   Management/Executive Committee than prior to adopting Mansfield.

   * 63% of firms said they have increased the percentage of underrepresented lawyers promoted into equity partnership since adopting Mansfield.

   * 58% of firms reported that their lateral partner hiring pool was more diverse following the adoption of Mansfield. (27)

   Participating law firms announced their progress on Diversity Lab's website:

   "57% of Littler's lawyers promoted to equity partner and 36.5[per thousand] of our equity partners in the US were women, LBGTQ+ and/or lawyers of color in the second year after implementing the Mansfield Rule." (28) "Akerman has increased the diversity of firm leadership by adding two seats to the firm's Board of Directors held by the Chairs of our Equality & Inclusion Committee and Women's Initiative Network, has increased Executive Committee diversity from 14[per thousand] to 42%, and 50% of the firm's equity partner promotions have been women and attorneys of color since implementing the Mansfield Rule." (29) "Among Dentons US' actions since implementing the Mansfield Rule, we are proud to have appointed our first female US managing partner; increased our Board diversity to 41%; and welcomed a newly...