Black Lawyers Matter: Enduring Racism in American Law Firms

University of Michigan Journal of Law Reform University of Michigan Journal of Law Reform

Volume 55

2021

Black Lawyers Matter: Enduring Racism in American Law Firms Black Lawyers Matter: Enduring Racism in American Law Firms

Vitor M. Dias

Indiana University-Bloomington Maurer School of Law; Indiana University-Bloomington

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Vitor M. Dias,

Black Lawyers Matter: Enduring Racism in American Law Firms

, 55 U. MICH. J. L. REFORM 99

(2021).

Available at: https://repository.law.umich.edu/mjlr/vol55/iss1/4

https://doi.org/10.36646/mjlr.55.1.black

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BLACK LAWYERS MATTER:

ENDURING RACISM IN AMERICAN LAW FIRMS

Vitor M. Dias*

BSTRACT

Scholars and practitioners have extensively examined patterns of racial inequality in

U.S. corporate law firms. In the corporate bar, pull factors that have long shaped legal

professionals’ careers include promotions, outside job offers, and family priorities that

may lead to leaving the labor force altogether. Push factors, such as discrimination,

problems with management, and work-life conflict, also precipitate work transitions.

Beyond corporate firms, however, an urgent question remains open to empirical

scrutiny: How does race affect career moves in the contemporary American legal

profession?

In this Article, I address this question drawing upon data from the first nationally

representative, longitudinal survey of U.S. lawyers. This study is one of few that uses

event history analysis as a statistical technique to examine legal careers. It also draws

on in-depth interviews to unravel how lawyers view their experiences at firms. These

legal professionals detail how race influences assignment distribution and promotion

within American law firms. Assessment of work histories of over 4,000 law school

graduates, from the time they were admitted to practice in the year 2000, shows that,

all else being equal, Black lawyers are pushed out of private law firms at much higher

rates than white lawyers. As Black lawyers continue to strive for racial equality, these

results indicate that race-conscious remedies remain critical not only for the future of

law firms, but also for the broader legal profession.

* Research Fellow on Race, Latinx, and Global Legal Issues, Milt and Judi Stewart Center on

the Global Legal Profession, Indiana University-Bloomington Maurer School of Law; Ph.D.

Candidate, Department of Sociology, Indiana University-Bloomington.

I am particularly grateful to Robert Nelson (Northwestern University and American Bar

Foundation) and David Wilkins (Harvard Law School). Bob invited me to join the American Bar

Foundation’s After the JD project, where the inspiration for work originally developed. I was also

part of David’s “Globalization, Lawyers, and Emerging Economies” (GLEE) program at Harvard,

where I was able to further refine my research on lawyers and law firms with colleagues around the

globe. I am also thankful to Bob and Meghan Dawe (American Bar Foundation) for their generous

feedback on early drafts. And, for their comments and insights, I am indebted to Guy-Uriel Charles

(Harvard Law School), Ronit Dinovitzer (University of Toronto), Luis Fuentes-Rohwer (Indiana

University Maurer School of Law), Bryant Garth (UC Irvine School of Law), Jayanth Krishnan

(Indiana University Maurer School of Law), Ethan Michelson (Indiana University Maurer School of

Law), Christiana Ochoa (Indiana University Maurer School of Law), and Joyce Sterling (Sturm

College of Law). In addition to drawing from the Black Lives Matter movement, this Article’s title is

influenced by the symposium “Black Lawyers Matter: Strategies to Enhance Diversity, Equity, and

Inclusion,” co-organized by the University of Houston Law Center and Southern Methodist

University Dedman School of Law on October 30, 2020.

100 University of Michigan Journal of Law Reform [Vol. 55:1

ABLE OF CONTENTS

NTRODUCTION........................................................................................... 102

I. B

ACKGROUND ................................................................................105

A. Why Does Race Still Matter in American Law Firms?................106

B. Does Legal Education Breed Racism in Law Firms? ...................107

C. Mapping the Racial Contours of Legal Work: A Firm

Perspective...................................................................................108

II. T

HE QUANTITATIVE DATA:UNPACKING RACIAL INEQUALITY IN

LAWYERS’CAREERS .........................................................................111

A. A Statistical Analysis of Lawyers’ Work Transitions................... 112

B. Moving Away from Law Firms: Racial Differences in

“Leaving Voluntarily”...................................................................115

C. Moving Down: The Lay-Off Racial Gap in U.S. Law Firms ........117

D. Moving Up in the Profession: Becoming Equity Partner............. 118

III. T

HE INTERVIEW DATA:LOOKING INTO RACIAL RELATIONS

THROUGH THE

EYES OF LAWYERS.................................................. 120

A. Receiving Assignments: The Racial Division of Labor................. 121

B. Knocking on Partners’ Doors: The Role of Mentorship in

Working on Assignments ............................................................124

C. Navigating Law Firms’ Coded Information to Reach

Partnership..................................................................................126

D. Considering Other Practice Settings ...........................................128

ONCLUSION ............................................................................................... 131

PPENDIX .................................................................................................... 134

NTRODUCTION

In 1996, David Wilkins and Mitu Gulati published what is today

considered a classic article on the state of race in American corporate

law firms.

Wilkins and Gulati detailed how Black lawyers faced racial

biases when they interviewed for jobs with corporate law firms.

This

1. See David B. Wilkins & G. Mitu Gulati, Why Are There So Few Black Lawyers in Corporate Law

Firms: An Institutional Analysis, 84 C

ALIF.L.REV. 493 (1990) (explaining the factors associated with

the underrepresentation of African American lawyers at the partnership level in American

corporate law firms).

2. Id. at 557. See generally Lauren A. Rivera, Hiring as Cultural Matching: The Case of Elite

Professional Service Firms, 77 A

M.SOCIO.REV. 999 (2012); LAUREN A. RIVERA,PEDIGREE:HOW ELITE

STUDENTS GET ELITE JOBS (2015) (documenting through ethnographic techniques how racial biases

are masked as cultural characteristics during job interviews in the corporate bar by a process the

author calls “cultural matching”).

FALL 2021] Black Lawyers Matter 101

study also identified that Black lawyers endured discrimination from

the beginning of the hiring process throughout their careers as

associates,

a problem that has persisted during the 2000s and 2010s.

As Wilkins and Gulati found, Black lawyers were more likely than

white lawyers to be placed in firms’ “flatline track” to do basic

paperwork.

White lawyers, by contrast, ended up on the “training

track,” which eventually made them more competitive for partnership.

As a result of racial disparities in hiring, retention, and promotion,

African Americans continued to be underrepresented in the corporate

bar.

Wilkins and Gulati observed that law firms’ discriminatory

practices “pervade[d] not only elite firms, but the entire legal

profession.”

The lack of nationally representative, longitudinal data on lawyers

in the United States, however, posed obstacles to assessing racial

inequality in the bar as a whole—until recently. Academics at the

American Bar Foundation (ABF) organized a first-of-its-kind

longitudinal survey of lawyers admitted to practice in the United States

in 2000.

The ABF’s “After the JD” (AJD) project, of which I am a team

member, followed a cohort of lawyers starting in 2002.

This Article

uses the AJD’s most recent data to empirically unravel why there still are

so few African American lawyers in U.S. private law firms, twenty-five

years after Wilkins and Gulati’s landmark study.

To be sure, scholars have long discussed the processes that shape

racial and ethnic inequality in the American legal profession.

One

3. See Wilkins & Gulati, supra note 1, at 540–42.

4. See Monique R. Payne-Pikus, John Hagan & Robert L. Nelson, Experiencing Discrimination:

Race and Retention in America’s Largest Law Firms, 44 L.

OC’Y REV. (2010) (showing that Black

lawyers continue to be underrepresented as partners in big law firms, even though racial

differences between African Americans and whites are not statistically significant with respect to

job satisfaction and commitment to stay with the same employer); D

IVERSITY IN PRACTICE:RACE,

ENDER, AND CLASS IN LEGAL AND PROFESSIONAL CAREERS 23–24 (Spencer Headworth et al. eds.,

2016) (compiling socio-legal studies that discuss the potential and limitations of diversity efforts in

the legal profession as a whole, including measures implemented by law firms).

5. See Wilkins & Gulati, supra note 1, at 565.

6. Id.

7. Following Wilkins & Gulati, African American and Black lawyers are used

interchangeably in this article.

8. See Wilkins & Gulati, supra note 1, at 501.

9. See T

ERRY ADAMS,RONIT DINOVITZER,BRYANT G. GARTH,JOHN L. HAGAN,ROBERT L. NELSON,

AMMY A. PATTERSON,GABRIEL PLICKERT,REBECCA L. SANDEFUR &JOYCE STERLING,AFTER THE JD III:

HIRD RESULTS FROM A NATIONAL STUDY OF LEGAL CAREERS 14–18 (2014) (detailing the structure of the

AJD data over time).

10. Id.

11. See Wilkins & Gulati, supra note 1; A

DAMS ET AL., supra note 9.

12. See generally R

ICHARD L. ABEL,AMERICAN LAWYERS (1989); ERWIN SMIGEL,THE WALL STREET

LAWYER:PROFESSIONAL ORGANIZATION MAN? (1964); JEROME E. CARLIN,LAWYERS ON THEIR OWN:A

TUDY OF INDIVIDUAL PRACTITIONERS IN CHICAGO (1962); JOHN P. HEINZ &EDWARD O. LAUMANN,

HICAGO LAWYERS:THE SOCIAL STRUCTURE OF THE BAR 111–12 (1982) (analyzing data showing Jewish

102 University of Michigan Journal of Law Reform [Vol. 55:1

explanation centers on educational credentials and academic

performance in law school, arguing that these are key elements that

shape lawyers’ careers.

However, this perspective has been challenged.

The second and competing explanation focuses on law firms’

institutional characteristics in structuring legal professionals’

trajectories. In response to the argument above, law school grades and

ranking have been assessed to identify whether they are significant

factors that influence the distinct employment prospects of Black

lawyers vis-à-vis their white counterparts with similar backgrounds.

In addition to—and more important than—grades, institutionalized

practices matter for the assessment of lawyers’ trajectories in the

contemporary legal labor market.

Today, covert discrimination

against Black attorneys is more common than overt instances of racism

within the firm setting.

Both forms of racism exist, nonetheless.

Covert discrimination includes a lack of social contact with partners

and a dearth of partner mentorship opportunities for Black lawyers .

These racialized and, at the same time, institutionalized, factors

permeate the job ladder that African American lawyers must climb to

become partners in law firms.

Consequently, having the right “fit”

continues to appear as a salient feature that adversely impacts Black

law practitioners “tended to be excluded from the high presitige fields”); JOHN P. HEINZ,ROBERT L.

ELSON,REBECCA L. SANDEFUR &EDWARD O. LAUMANN,URBAN LAWYERS:THE NEW SOCIAL

STRUCTURE OF THE BAR 62–69 (2005) (revealing the persistence of discrimination against people of

color and women by comparing the results of surveys conducted with lawyers in Chicago in 1975

and 1995).

13. See Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57

TAN.L.REV. 367, 369–70 (2004) [hereinafter Sander, A Systemic Analysis]; Richard H. Sander, The

Racial Paradox of the Corporate Law Firm, 84 N.C.

L. R

EV. 1755, 1789–95 (2006) [hereinafter Sander, The

Racial Paradox] (claiming that the lower performance of African Americans, compared to whites, in

law school leads to their higher attrition rates in educational and professional settings).

14. See Payne-Pikus et al., supra note 4. See generally David L. Chambers, Timothy T. Cydesdale,

William C. Kidder & Richard O. Lempert, The Real Impact of Eliminating Affirmative Action in American

Law Schools: An Empirical Critique of Richard Sander’s Study, 57 S

TAN.L.REV. 1855 (2005); James E.

Coleman, Jr. & Mitu Gulati, A Response to Professor Sander: Is It Really All About the Grades?, 84 N.C.

EV. 1823 (2005); David B. Wilkins, A Systematic Response to Systemic Disadvantage: A Response to

Sander, 57 S

TAN.L.REV.1915 (2005).

15. See M

ARC GALANTER &THOMAS PALAY,TOURNAMENT OF LAWYERS:THE TRANSFORMATION OF

THE

BIG LAW FIRM 14, 69 (1991) (explaining the mechanisms through which law firms grow and how

the majority of them operate under an up-or-out system); David B. Wilkins & G. Mitu Gulati,

Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the Internal Labor

Markets of Elite Law Firms, 84 V

A.L.REV. 1581, 1650 n. 222 (1998) (expanding on Galanter & Palay’s

model with a specific focus on the job ladder within firms); David B. Wilkins, “If You Can’t Join ‘em,

Beat ‘em!” The Rise and Fall of the Black Corporate Law Firm, 60 S

TAN.L.REV. 1733, 1744 (2008)

(following the history of African Americans who ended up leaving their previous firms to create

their own successful corporate law firms).

16. See Payne-Pikus et al., supra note 4, at 559.

17. Id.

18. Id. at 560.

19. Id. at 559.

FALL 2021] Black Lawyers Matter 103

lawyers from the moment of hiring.

Compared to investment banks

and consulting companies, law firms place the strongest emphasis on

interpersonal abilities rather than technical skills during job

interviews.

In this Article, I extend this scholarship by analyzing how race helps

explain the differences between Black and white attorneys in their

likelihoods of: (a) being promoted to equity partner, (b) being fired

from a law firm, and (c) leaving a law firm for any reason, or what is

euphemistically described as a “voluntary” move.

The bottom line is

that Black lawyers continue to be pushed away from law firms at much

higher rates than white attorneys based on their racial background

alone. A stark and related finding is that once Black lawyers are

unemployed, this unemployment status becomes a perpetual mark on

the record of those who strive to become equity partners. Out of all

lawyers surveyed by the AJD, only one Black attorney who faced

unemployment eventually reached equity partnership.

These issues demand a better understanding of racial patterns of

promotion as well as of voluntary and involuntary career moves away

from law firms. To arrive at a more thorough explanation of these

persistent problems, this Article is organized into four parts.

Part I provides background on the existing literature on racial

inequality in the American legal profession. While law schools began to

welcome an increasing number of racial minorities, it took decades for

African American lawyers to join private law firms at a similar rate.

Although Black lawyers represent a growing number of associates, they

remain deeply underrepresented at the partnership level. Competing

arguments have been put forth to discuss the roots of systemic racism

in the bar.

Common ground within this scholarship, however, is that

20. See Bryant G. Garth & Joyce S. Sterling, Exploring Inequality in the Corporate Law Firm

Apprenticeship: Doing the Time, Finding the Love, 22 G

EO.J.LEGAL ETHICS 1361, 1363, 1366, 1379, 1382,

1393 (2009) [hereinafter Garth & Sterling, Exploring Inequality] (describing how associates navigate

the everyday life in law firms while accounting for the experiences of those who move to other

settings); Bryant G. Garth & Joyce S. Sterling, Diversity, Hierarchy, and Fit in Legal Careers: Insights

from Fifteen Years of Qualitative Interviews,G

EO.J.LEGAL ETHICS 1123, 1125–26 (2017) [hereinafter Garth

& Sterling, Diversity, Hierarchy, and Fit] (using interviews conducted in the context of the AJD to

document how socialization opportunities with partners and clients are racialized in law firms,

and how lawyers of color do not benefit from such opportunities like their white peers with a

comparable background).

21. See Rivera, supra note 2, at 1004, 1011.

22. See Wilkins & Gulati, supra note 1, at 578 (contending that voluntary is a problematic term

due to the career constraints that disproportionately impact attorneys of color as they decide how

to move forward with their careers, hence the use of quotation marks).

23. See, e.g., Sander, The Racial Paradox, supra note 13, at 1758 (suggesting that law school

grades are associated with patterns of racial discrimination and inequality in the bar); Payne-Pikus

et al., supra note 4, at 561–62 (detailing based on statistical techniques how law firms’ characteristics

offer a more accurate explanation for racial inequality in legal practice than grades); Wilkins, supra

104 University of Michigan Journal of Law Reform [Vol. 55:1

law firms remain “revolving doors” for African Americans, as Wilkins

and Gulati identified.

Subsequently, I call attention to the still-

relevant need for fleshing out factors shaping the partnership track, the

decision to move away from law firms, and the process of being laid off.

I also describe the AJD data and the mixed-method techniques used in

the analysis.

In Part II, I present the results of the quantitative component of the

AJD data. As the Article shows, this is one of the few studies that use

event history analysis as an advanced statistical methodology to assess

job transitions in the legal profession.

The AJD data offer a unique

opportunity to analyze the entire employment history of the lawyers

surveyed by the ABF. In sum, the results reveal two important findings.

First, Black lawyers are significantly more likely than white lawyers to

be fired from law firms and to leave law firms for other reasons.

Second, white lawyers are more likely than Black lawyers to become

equity partners.

Part III discusses the qualitative component of the AJD data. Here, I

highlight how a subset of lawyers—with whom in-depth interviews

were conducted as part of the AJD project—described their careers.

These attorneys explained how they navigated both the formal and

informal rules of the partnership track in law firms as they worked to

survive and then thrive within this setting. For instance, while Black

lawyers needed to ask for their promotions, white lawyers did not and,

instead, received their higher rank more routinely.

As the Article concludes in Part IV, the racial differences in lawyers’

career paths and outcomes are striking, both qualitatively and

quantitatively. I emphasize that political and market tools ought to be

implemented to remedy racial inequality in the legal profession.

Indeed, affirmative action is among such instruments. Yet questions

about its future have emerged now that the U.S. Supreme Court

note 14, at 1925–26 (examining elements, in addition to grades, that influence the careers of racial

minorities after law school).

24. See Wilkins & Gulati, supra note 1, at 580.

25. See Fiona M. Kay, Flight from Law: A Competing Risks Model of Departures from Law Firms, 31 L.

OC’Y REV. 301, 303 (1997). Kay’s article uses survival analysis, which can also be referred to as

event history analysis, to examine statistically why women are more likely than men to exit the

legal labor force. Id. The article also explains that this “technique [is] particularly well suited to the

questions posed by life course research. This methodological approach mirrors more accurately the

process of transition from one employment setting to another than do conventional studies.” Id. See

Fiona M. Kay, Stacey L. Alarie & Jones K. Adjei, Undermining Gender Equality: Female Attrition from

Private Law Practice, 50 L.

OC’Y REV. 766, 779 (2016) (employing similar statistical techniques to

predict gendered patterns of leaving corporate law firms). Kay, Alarie, and Adjei define event

history analysis as organizing survey data into a “format where a single spell accounts for each job

held [or unemployment faced] by each respondent during his or her labor force experience.” Id.

Different from Kay, Alarie, and Adjei, who “divided [these spells] into person-months segments,”

the AJD data were structured as a person-year dataset due to distinctions between the survey

instruments used here vis-à-vis in their article. See id.

FALL 2021] Black Lawyers Matter 105

consists of a solidly conservative majority. In this concluding section, I

briefly reflect on persistent issues surrounding, in particular, SFFA v.

Harvard—a lawsuit that challenges affirmative action—which the Court

is expected to hear in the near future.

ACKGROUND

Lawyers have been active players in challenging and supporting

changes to racial policies in the United States, both in court and in

political forums.

Being uniquely situated to impact society at large,

lawyers also have shaped the contours of racial and gender relations

within their own occupation.

After Wilkins and Gulati’s study,

Garth

and Sterling also addressed the issue of inequality among lawyers and

noted, “[c]orporate law firms in many respects [still] set the tone for the

U.S. legal profession.”

The literature shows important differences between Black and

white lawyers in their job satisfaction levels and desire to leave their

jobs, and, due to institutional characteristics African Americans find in

the firm setting, they exit firms at higher rates.

Even after more than a

century of research on the persistent racial inequality in American law

firms, these patterns raise an important question: How does race affect

career moves within the contemporary American legal profession? In

addressing this question, I use new data and techniques to explore this

subject in detail.

26. Follow-up litigation has already ensued; SFFA v. Yale was filed in United States District

Court for the District of Connecticut.

27. See A

BEL, supra note 12. See generally JEROLD S. AUERBACH,UNEQUAL JUSTICE (1976)

(discussing changes introduced by public policies, bar regulations, and court decisions on racial

relations in the American legal profession since the beginning of the twentieth century).

28. See generally Marc Galanter, Mega-Law and Mega-Lawyering in the Contemporary United

States, in T

HE SOCIOLOGY OF THE PROFESSIONS:LAWYERS,DOCTORS, AND OTHERS 152–76 (Robert

Dingwall & Philip Lewis eds., 1983) (theorizing on how lawyers are uniquely situated to shape

economic, political, and social aspects of society and the legal profession).

29. See John Hagan, The Gender Stratification of Income Inequality Among Lawyers, 68 S

OC.FORCES

835, 836 (1990) (describing how lawyers change the rules governing the legal profession, which

leads to gender disparities in career paths and outcomes). For a historical overview of how

obstacles to non-whites and women becoming lawyers and then succeeding in law firms in the

United States have marked the American legal profession, see Howard S. Erlanger, The Allocation of

Status Within Occupations: The Case of the Legal Profession, 58 S

OC.FORCES 882, 885–86 (1979); URBAN

LAWYERS:THE NEW SOCIAL STRUCTURE OF THE BAR, supra note 12, at 62–69. And, for a discussion of

contemporary aspects of inequality resulting from the division of labor among lawyers, see

Rebecca L. Sandefur, Work and Honor in the Law: Prestige and the Division of Lawyers’ Labor, 66 A

OCIO.REV. 382, 399–400 (2001); Ronit Dinovitzer & Bryant G. Garth, Lawyer Satisfaction in the

Process of Structuring Legal Careers, 41 L.

OC’Y REV. 1, 8 (2007).

30. See Wilkins & Gulati, supra note 1.

31. Garth & Sterling, Exploring Inequality, supra note 20, at 1361.

32. Id.

106 University of Michigan Journal of Law Reform [Vol. 55:1

A. Why Does Race Still Matter in American Law Firms?

Legal and social science researchers have documented the

discriminatory experiences of African Americans, immigrants, people

of Jewish descent, other racial and ethnic non-white groups, and

women in the legal profession.

Some improvement has occurred in

combating discrimination against several of these groups, but the bar

exam’s structure continues to produce adverse effects on the

professional trajectory of women as well as racial and ethnic

minorities.

At present, women constitute 37% of active attorneys affiliated with

the American Bar Association, while people of color comprise 14.1%.

However, the traditional “promotion-to-partner tournament,”

which

Galanter and Palay identified as big law firms’ strategy to “retain the

winning lawyers’ skills,”

has proved to be severely stratified.

Consequently, white males account for over 90% of all partners in law

firms—a number that goes up if one looks only at equity partners.

The

increasing professional status of legal jobs is, therefore, accompanied

by decreasing representation of women and racial minorities.

Using AJD data, Payne-Pikus, Hagan, and Nelson confirm these

statistics.

According to them, the number of African Americans and

Latinx individuals starting as associates in law firms is growing, “but

neither group forms more than 1 percent of partners.”

This process

overall stalled between 2011 and 2020, nonetheless.

Given this

attrition rate, combined with the limited progress toward racial

equality in the bar over the past decade, it remains imperative to

understand the experiences of people of color within the law firm

setting. After all, these experiences are central to a lawyer’s career,

33. See, e.g.,SMIGEL, supra note 12; AUERBACH, supra note 27; ABEL, supra note 12; HEINZ &

AUMANN, supra note 12; URBAN LAWYERS:THE NEW SOCIAL STRUCTURE OF THE BAR, supra note 12.

34. See U

RBAN LAWYERS:THE NEW SOCIAL STRUCTURE OF THE BAR, supra note 12, at 317.

35. A

M.BAR ASS’N,ABAPROFILE OF THE LEGAL PROFESSION 32–33 (2020), https://www.americanbar.org

/content/dam/aba/administrative/news/2020/07/potlp2020.pdf [https://perma.cc/HV2Q-76ZF].

36. G

ALANTER &PALAY, supra note 15, at ch. 5.

37. Id. at 107.

38. See U

RBAN LAWYERS:THE NEW SOCIAL STRUCTURE OF THE BAR, supra note 12, at 73.

39. Payne-Pikus et al., supra note 4, at 554.

40. Id. at 562.

41. Id. at 554.

42. A

M.BAR ASS’N, ABA NATIONAL LAWYER POPULATION SURVEY 4 (2021), https://

www.americanbar.org/content/dam/aba/administrative/market_research/2021-national-lawyer-

population-survey.pdf.

43. See, e.g.,U

RBAN LAWYERS:THE NEW SOCIAL STRUCTURE OF THE BAR, supra note 12; DIVERSITY

PRACTICE:RACE,GENDER, AND CLASS IN LEGAL AND PROFESSIONAL CAREERS, supra note 4, at 335. See

generally Marc Galanter & William Henderson, The Elastic Tournament: A Second Transformation of the

Big Law Firm, 60 S

TAN.L.REV. 1867 (2008) (showing that, despite important transformations in the

FALL 2021] Black Lawyers Matter 107

while the explanations for such racialized career paths and outcomes

vary.

I turn to these explanations next.

B. Does Legal Education Breed Racism in Law Firms?

Arguably, the attrition rate of the associate-to-partner track

resembles a problem that begins in legal education.

That is, minorities

are significantly different from their white counterparts with respect to

their socialization, performance, and, ultimately, retention in law

school.

Because law school ranking, law review participation, and

grades function as important signals to prospective employers, African

Americans would be at a disadvantage from the outset.

Scholars who

propose this explanation claim that labor market outcomes in law firms

trace back to lawyers’ educational backgrounds.

Additionally, these outcomes stem from biased performance

expectations that employers may hold, based on a perceived human

capital gap between people of color and white people.

Human capital,

in this context, loosely refers to one’s ability and skills, which law firms

measure in terms of law school GPA.

If partners tend to value grades

as an indicator of being up to the job, they consequently privilege

associates with high law school GPAs. Since Black students have, on

average, lower GPAs than white students in law school, partners would

discriminate not only at the time of a job interview but also throughout

a law firm’s partnership track.

Several scholars contend, however, that this perspective tells an

incomplete story of racial minorities in the U.S. legal labor market.

Racial minorities are neither disproportionately fired from law firms

legal profession that have resulted in new employment prospects in other sectors, most lawyers

still work at law firms in their careers).

44. This is the reason why I concentrate on the analysis of three career paths that directly

relate to racialized career paths in law firms to date.

45. See Sander, A Systemic Analysis, supra note 13, at 370.

46. Id.

47. Id. at 376 n.20, 412.

48. Id. at 370–72.

49. Sander, The Racial Paradox, supra note 13, at 1821.

50. Id. at 1819–20.

51. Id. at 1812 ( “If blacks at a firm have been hired with substantially lower average GPAs than

whites, partners will assume that black associates may have lesser skills. Consequently, blacks will

tend to be given less responsibility and fewer ‘proving’ assignments than will whites.”).

52. Several scholars offered direct responses, providing additional elements that challenge

Sander’s argument. Sander, The Racial Paradox, supra note 13, at 1812. The explanation includes the

prediction of a striking reduction in the number of minorities without affirmative action

measures, the institutional characteristics of firms associated with racialized patterns of

assignment distribution within firms, and the limited opportunities of mentorship offered to

racial minorities. Id. See, e.g.,Wilkins, supra note 14; Coleman & Gulati, supra note 14; Chambers et

al., supra note 14; Payne-Pikus, et al., supra note 4.

108 University of Michigan Journal of Law Reform [Vol. 55:1

due to law school GPA alone nor do they choose to pursue a career in

another sector because of their grades. Rather, attorneys who are racial

minorities face the everyday practice of law without the mentorship

and tasks needed for them to advance at the same rate in law firms as

white lawyers.

For instance, at the beginning of their careers in 2002,

over seventy percent of Black lawyers surveyed by the AJD desired

better mentorship in their firms, compared to fifty percent of white

lawyers who answered the same question.

In light of these stark racial differences, Payne-Pikus, Hagan, and

Nelson conducted statistical analyses that controlled for legal

education.

They found the characteristics of the law firms examined

in their study to be significantly associated with racialized career

patterns among Black lawyers.

In sum, access to partners significantly

shapes Black lawyers’ careers, whereas grades do not.

C. Mapping the Racial Contours of Legal Work: A Firm Perspective

Formal and informal rules governing how law firms organize their

partnership track and everyday routines affect not only how

assignments are distributed.

They also influence which tasks are

assigned to whom and how much help some associates receive from

partners compared to others. Mentorship programs, socialization

opportunities, and having the chance to handle important cases

constitute what Wilkins and Gulati called the “royal jelly” for lawyers to

advance in law firms.

But the division of that “jelly” within firms is racialized. Compared

to white lawyers, Black lawyers continue to be excluded from key legal

matters and socialization opportunities with partners and clients.

contrast, racial differences between African American lawyers and

white lawyers are not significant with respect to job satisfaction and

commitment to stay with the same employer.

These patterns

ultimately and adversely impact African American lawyers’ careers in

the firm setting.

Even considering a lawyer’s educational and professional

background alone, the associate-to-partner track remains extremely

competitive. Only a small number of lawyers have reached the position

53. See Payne-Pikus et al., supra note 4, at 561–62.

54. Id. at 566.

55. Id. at 563.

56. Id.

57. Id. at 560.

58. See Wilkins & Gulati, supra note 1, at 541.

59. Id. at 542, 568

60. See Payne-Pikus et al., supra note 4, at 572.

FALL 2021] Black Lawyers Matter 109

of equity partnership to date.

This trend, in fact, traces back to when

Cravath, Swaine & Moore first operationalized the “Cravath” system

that set forth the institutionalized mechanisms through which lawyers

could be evaluated to become partners.

Some elements of the Cravath

model persist, even though it has been adapted as law firms grow in

size and across jurisdictions. Positions such as non-equity partner and

of-counsel are currently common.

And, scholars have documented

that women and racial minorities are more likely to occupy these roles

as these new positions multiply.

In following Black lawyers’ careers in the corporate bar, Wilkins

and Gulati also explained “how an interviewer’s subjective biases or

tastes affect a candidate’s employment prospects.”

Even when African

American lawyers attain good grades, have work experience, and

engage in law school professionalization activities like law reviews, they

are less likely to benefit from such factors in a job interview with a

corporate law firm than their white counterparts with comparable

records.

Thus, when a lawyer of color seeks to join a corporate firm

with above-average credentials, race still plays a significant role in the

job interview, especially for African American applicants.

Others have expanded on this point and examined some common

pull and push factors that shape the careers of African American

lawyers. Pull factors that influence legal professionals’ trajectories

include promotions, lateral moves between firms, or family priorities.

Push factors, such as discrimination, problems with management, and

work-life conflict, also precipitate work transitions.

These

61. Id. at 554.

62. See G

ALANTER &PALAY, supra note 15, at 9–10, 14, 56; Wilkins & Gulati, supra note 1, at 608.

63. See, e.g., Galanter & Henderson, supra note 43.

64. See Fiona Kay & Elizabeth Gorman, Women in the Legal Profession, 4 A

NN.REV.L.&SOC.SCI.

299 (2008) [hereinafter Kay & Gorman, Women in the Legal Profession] (reviewing the literature

focused on women’s careers in the legal profession in the twentieth century); Fiona M. Kay &

Elizabeth H. Gorman, Developmental Practices, Organizational Culture, and Minority Representation in

Organizational Leadership: The Case of Partners in Large U.S. Law Firms, 639 A

NNALS AM.ACAD.POL.&

OC.SCI. 91 (2012) [hereinafter Kay & Gorman, Developmental Practices] (discussing the limitations

of diversity efforts devised to increase the number of partners from minority backgrounds in

American law firms).

65. See Wilkins & Gulati, supra note 1, at 559 n.225.

66. Id.

67. Id.; see also Eli Wald, A Primer on Diversity, Discrimination, and Equality in the Legal Profession

or Who Is Responsible for Pursuing Diversity and Why, 24 G

EO.J.LEGAL ETHICS 1079, 1080 (2011).

68. See generally G

ALANTER &PALAY, supra note 15 (identifying mechanisms of promotion

within firms); Galanter & Henderson, supra note 43 (documenting some patterns of lateral moves

between firms); Kay, supra note 25 (explaining family dynamics among women in the legal

profession).

69. See generally G

ALANTER &PALAY, supra note 15 (detailing how the up-or-out promotion

system works within big law firms); Galanter & Henderson, supra note 43 (noting how the business

sector has influenced management practices in law firms). For an account of discriminatory

110 University of Michigan Journal of Law Reform [Vol. 55:1

characteristics also appear in the reasons listed by lawyers surveyed by

the AJD when making job changes, offering an opportunity to examine

patterns empirically for the bar as a whole.

Even when firms devise formal and informal programs to “level the

playing field” and reduce racial inequality associated with career moves,

it is mostly white attorneys who benefit from these opportunities.

This problem persists largely because partners neglect important

workplace needs for the training of minorities, reducing their chances

of socialization with both clients and partners.

As a result of the path-

dependent nature of formal and informal practices that are marked by

both covert and overt racism in private law firms, “none of the practices

or cultural characteristics considered [by Kay and Gorman] was

positively associated with the presence of minorities among partners.”

According to scholarship focusing on firms, two main dimensions

of racial relations appear in the legal labor market. One is the changing

socioeconomic characteristics of the U.S. market that have profoundly

reshaped the growth of law firms and the opportunities for

employment outside of such firms.

These opportunities include

traditional paths in the public sector and an increasing number of in-

house jobs at prestigious corporations.

The second is that making

partner within law firms remains a highly valued but severely stratified

outcome in terms of professional status and salary.

Taken together, these dimensions reveal how law firms still operate

under an “up-or-out” system in which African Americans are

disproportionally pushed out of the system.

Law firms thus continue

to pose obstacles to African American lawyers’ careers, despite the rules

of what Galanter and Palay call “tournament to partnership” being

practices, in general, see, e.g., Kay, supra note 25; Kay et al., supra note 25; Payne-Pikus et al., supra

note 4; Wilkins & Gulati, supra note 1.

70. See Kay & Gorman, Developmental Practices, supra note 64, at 107.

71. See Payne-Pikus et al., supra note 4, at 557.

72. See Kay & Gorman, Developmental Practices, supra note 64, at 107.

73. See William D. Henderson & Arthur S. Alderson, The Changing Economic Geography of Large

U.S. Law Firms, 16 J.

CON.GEOGRAPHY 1235, 1238–39 (2016) (conducting a network analysis of the

relationship between the growth of legal markets across the U.S. and firm size, along with how

lawyers have moved throughout the country). See generally, Galanter & Henderson, supra note 43;

Garth & Sterling, Diversity, Hierarchy, and Fit, supra note 20.

74. See Ronit Dinovitzer & Bryant Garth, The New Place of Corporate Law Firms in the Structuring

of Elite Legal Careers, 45 L.

OC.INQUIRY 339, 364 (2020) (employing sequence analysis as another

advanced statistical technique to identify how lawyers surveyed by the AJD move from one sector

to another, including in-house, rather than focusing on changing employers only).

75. For comparisons over time, see generally G

ALANTER &PALAY, supra note 15; Galanter &

Henderson, supra note 43; Bryant G. Garth, Crises, Crisis Rhetoric, and Competition in Legal Education:

A Sociological Perspective on the (Latest) Crisis of the Legal Profession and Legal Education, 24 S

TAN.L.&

OL’Y REV. 503 (2013); HEINZ &LAUMANN, supra note 12; URBAN LAWYERS:THE NEW SOCIAL

STRUCTURE OF THE BAR, supra note 12.

76. See Kay & Gorman, Developmental Practices, supra note 64, at 98.

FALL 2021] Black Lawyers Matter 111

supposedly equal for all associates, and despite recent transformations

in the bar—e.g., the multiplying non-equity partnership positions,

longer partnership track in firms, and increasingly prestigious in-house

counsel jobs.

Consequently, Black lawyers who have been punished by

the tournament rules of the associate-to-partner game may have been

pushed away from the partnership track and sometimes from the firm

setting entirely.

In response to these career constraints and the possibility of being

dismissed due to law firms’ institutional practices, Black lawyers devise

strategies to navigate the contemporary legal labor market. For

instance, some of these lawyers build professional networks that help

them move from one firm to another. Once African American lawyers

perceive racialized obstacles to advancement with their current

employers, they also establish contacts with in-house counsel attorneys

and government officials, which facilitates transitions across sectors.

Ultimately, Black lawyers with law firm experience and marketable

skills might end up leaving firms to start their own or to work in other

practice settings.

Such factors are critical in their employment

prospects within the bar and other sectors.

The next section details

how the AJD data were collected and how I analyze them to cast new

light on these job transitions.

II.

HE QUANTITATIVE DATA:RACIAL INEQUALITY IN LAWYERS’CAREERS

This analysis uses data from the AJD study launched by the ABF, a

longitudinal survey of approximately ten percent of law school

graduates who were admitted to the bar in 2000 and followed over time

between 2002 and 2012.

Namely, the participants were surveyed at

three different points, starting in 2002 with follow-up questionnaires in

2007 and 2012. The ABF refers to these three questionnaires as Wave 1,

Wave 2, and Wave 3, respectively.

The legal professionals surveyed by

77. See, e.g., GALANTER &PALAY, supra note 15; Galanter & Henderson, supra note 43;

Henderson & Alderson, supra note 73; Wilkins & Gulati, supra note 1.

78. See Wilkins, supra note 15, at 1745.

79. Id. at 1746.

80. Id.

81. Id.

82. A

DAMS ET AL., supra note 9, at 14–15.

83. Id. at 14. Regarding the sample, fifty-three percent of respondents who had been

previously surveyed in 2002 and 2007 completed the questionnaire in 2012, which totals 2,862

attorneys. Id. at 15. The response rate is about thirty-five percent, taking into account the original

sample. Id. I include other lawyers who supplemented the cases lost due to attrition and were

gathered using complex sampling techniques. I do not use multiple imputation nor listwise

deletion to handle missing data. Instead, to fully capture racial minorities’ outcomes in the legal

profession, I simply control for missing data by adding a category that includes “unknown.” I use

112 University of Michigan Journal of Law Reform [Vol. 55:1

the AJD were asked about the positions they held between 2002 and

2012, as well as about their employers.

Therefore, the empirical

analysis can focus on lawyers who worked in private law firms during

the first twelve years of their careers.

In addition to its longitudinal nature, another advantage of the AJD

data is that the survey is nationally representative. The sample includes

the major legal markets in terms of population size, such as New York

and California.

The AJD thus provides a comprehensive picture of

lawyers admitted to practice in the entire country throughout the early

2000s. The AJD study collected the first data of its kind, following

lawyers’ careers both temporally and geographically.

The general

characteristics of the sample of lawyers upon which this statistical

analysis is based can be found in Table A1 of the Appendix, infra.

Scholars involved in the AJD project also conducted 219 in-depth

interviews with lawyers who answered the survey questionnaires. My

analysis draws upon a subsample of 144 interviews with lawyers who

worked in a private law firm. This subsample of interviewees captures

how these individuals narrated their firm experiences, even if they

moved to a non-firm setting or exited the profession afterward.

doing so, this study is among the first to combine qualitative and

quantitative data on how race structures lawyers’ careers and how legal

professionals across the country describe the strategies they devised to

navigate the practice of law in the contemporary U.S. legal profession.

A. A Statistical Analysis of Lawyers’ Work Transitions

This inquiry is also one of the few that uses event history analysis as

a statistical technique to assess lawyers’ careers over time.

The data

are structured in a way that accounts for each instance of employment

or unemployment between 2003 and 2012.

For example, if a lawyer

the restricted datasets from the three waves, which have been made available by the American Bar

Foundation.

84. Id.

85. Id. at 15.

86. Id.

87. Id. at 95. Individuals who neither reported their race nor their gender were excluded from

the dataset. Id. at 94. See infra Table A1.

88. The author is greatly indebted to Bryant Garth and Joyce Sterling for collecting and

sharing such a rich source of data. I extend my gratitude to Robert Nelson and Meghan Dawe, at

the American Bar Foundation, for making the interview and statistical data available.

89. This approach has been used to estimate the probability for women to leave law firms and

sometimes the legal profession altogether. See, e.g.,Kay, supra note 25; Kay et al., supra note 25.

90. In statistical terms, this technique consists of using the employment history section of

the AJD questionnaire to build a balanced, person-year dataset of American lawyers and estimate

their career transitions since 2003 (i.e., after Wave 1) until Wave 3, collected in 2012.

FALL 2021] Black Lawyers Matter 113

was unemployed, hired as an associate, and then moved to work for the

federal government all in the same year, each of these job transitions is

considered in the quantitative analysis. The same applies to a lawyer

who worked as an associate in the same law firm for seven years and

became a partner in the eighth year. To reconstruct these professionals’

trajectories accurately, I compiled their employment information

starting in 2012 (Wave 3) and supplemented this information with

details provided in 2007 (Wave 2) and 2002 (Wave 1). It is statistically

safer to privilege the most recent jobs reported in the 2012 survey over

older responses, which might omit details from the previous

questionnaires.

After organizing the data per these steps, I conducted a statistical

analysis using a set of logistic regression models. These models predict

the odds of being promoted to equity partner, exiting a law firm for any

reason, and being fired from a law firm.

This methodological

approach allows for estimating the likelihood of lawyers moving up,

down, or out of law firms.

The logistic regression also reveals which variables—i.e.,

characteristics—significantly influence these job transitions. For

example, one or more variables may be significantly associated with

racial differences in exiting a law firm for any reason, but not with

being fired from a law firm. In addition to race and ethnicity, it is

necessary to control for other potential explanations of career moves

discussed by the literature in Part I. Specifically, demographic

characteristics,

educational background,

perceived discrimination,

job satisfaction,

workplace context,

and employment history

91. To be sure, there were inconsistencies in the employment history reported by lawyers.

The most common issue is the overlap of jobs in the same period among individuals who declared

to be working full-time in more than one position. Such problems confirm that, given the structure

of the data, most recent jobs ought to be reported first in the dataset and hence privileged over

older jobs, which were subsequently deleted from the analysis only when this conflict emerged.

92. To account for racial differences in the sectors in which lawyers start their careers, I set

2003 as the time to begin the statistical analysis whether they were in a law firm or not.

93. Demographics have been coded as follows: Women are coded as 1 (one), whereas men

have been assigned the value of 0 (zero). The data have been structured by sex, and hence I do not

account for nonbinary individuals. Whites who have not declared to be from a Latinx background

are the reference group to which African Americans, Latinx, and Asians are compared. Number of

children is a categorical variable, and childless lawyers form the reference group to which legal

professionals with children are compared. I also control for marital status, in which married

individuals are compared to those who are not married.

94. Recall that educational background has been used as a loose indicator of human capital

attributes. In this regard, the models account for law school GPA, LSAT score, and law school

ranking.

95. Lawyers who reported perceiving any kind of discrimination are coded as 1 (one) and 0

(zero) otherwise.

96. Job satisfaction is a dichotomous (i.e., a dummy) variable based on the level of

satisfaction declared by lawyers with respect to their advancement opportunities, which has been

measured as a scale that ranges from 1 (one) “highly satisfied” to 7 (seven) “highly dissatisfied.”

114 University of Michigan Journal of Law Reform [Vol. 55:1

patterns

are used as sets of variables included in the logistic

regression models.

Table A2 of the Appendix, infra, contains the results of the logistic

regression. For a straightforward presentation of racial differences in

becoming equity partner, exiting a law firm for any reason, and being

dismissed from a law firm, I calculated the likelihood of these

transitions happening in terms of predicted probabilities.

100

Statistically, it is necessary to estimate odds ratios using the logistic

regression first and derive the predicted probabilities from them next—

which are also referred to as average marginal effects. By taking this

step, I can offer a simple, graphical representation of each career

outcome by race. This technique is also considered a best practice in

current quantitative studies, insofar as “the AME [average marginal

effect] is the best summary of the effect of a variable.”

101

And, there is

one variable of particular interest to this Article: race.

Individuals who have declared a value of 6 or 7 on this scale are coded as 1 (one) and 0 (zero)

otherwise.

97. Regarding the organizational characteristics of law firms, I specifically control for plans

to leave the current employer within the next year and opportunities to join partners for meals. A

brief note on firm size and practice setting is necessary. The number of lawyers working for a firm

could control for two processes at once. First, the contemporary growth of private law firms spans

geographical jurisdictions in the United States, and big law firms are increasingly interconnected

around the country and the world. See Henderson & Alderson, supra note 73. Second, this

information offers details pertaining to whether or not firm size distinctively shapes racial

inequality and at which level of firm size this problem emerges. However, controlling for firm size,

as well as for practice setting, in the statistical analysis creates an issue. It is a precondition for

lawyers to work in a law firm to become partners, which excludes lawyers who might be moving

from another sector from the models. Also, the sample consists of lawyers who worked in a law

firm, which already restricts the cases to the legal population of interest to this study and creates

an additional complexity to the models when accounting for firm size or practice setting.

Statistically, this point is reflected in the Bayesian information criterion (BIC) computed for the

models. The BIC is higher when practice setting is included in some of the models than when

omitting this variable, and models with the lowest BIC should be preferred. Bearing this in mind, I

estimated models with either firm size or practice setting as robustness checks rather than

presenting the results here. Ultimately, the racial gap between Black lawyers and white attorneys

presented in the predicted probabilities graphs persists, whether I control for firm size and

practice setting or not.

98. The professional trajectories of the lawyers are also considered, and these variables

include whether they ever worked part-time, ever exited the labor force, and ever left a law firm.

Finally, year controls for serially correlated errors.

99. These variables have been measured at different time points. Race, gender, GPA, LSAT

scores, and law school ranking are from Wave 1 (in 2002). Plans to leave the current employer

within a year, having the chance to join partners for meals, and overall job satisfaction have been

coded in three distinct moments, namely in 2002, 2007, and 2012. The following characteristics are

time-varying parameters measured in 2002 through 2012: number of children, marital status,

perceived discrimination, and the cumulative probability of having ever worked part-time, ever

exited the labor force, and ever left a law firm.

100. See generally J.

COTT LONG &JEREMY FREESE,REGRESSION MODELS FOR CATEGORICAL

DEPENDENT VARIABLES USING STATA 245 (3d ed. 2014) (explaining the value of using both logistic

regression models and predicted probabilities).

101. Id.

FALL 2021] Black Lawyers Matter 115

B. Moving Away from Law Firms: Racial Differences in “Leaving Voluntarily”

The first career outcome analyzed quantitatively is the probability

of exiting a law firm for any reason. In the logistic regression, the value

of 1 (one) reflects lawyers who exited a private law firm for any reason.

The value of 0 (zero) indicates other career moves.

Following Wilkins and Gulati, I consider this job transition as being

related to one’s “voluntary” decision to move from a law firm.

102

As the

authors posit, law firm structures pose racialized constraints to Black

lawyers’ decisions about pursuing their careers as associates.

103

If Black

lawyers stay at law firms doing “routine paperwork,” their advancement

opportunities are reduced.

104

Leaving, however, requires building new

networks at their next workplace.

105

When attorneys of color are fired,

chances to create and strengthen professional ties are more limited

than when leaving firms for other reasons.

106

Thus, not rarely, racialized

firm structures make Black lawyers weigh the potential downsides of

deciding to leave a firm against the risk of being forced to exit via

dismissal. Black lawyers are consequently more likely to be “induced” to

leave this setting than white lawyers.

107

Figure 1 reveals that this pattern

indeed exists in private law firms, offering new details to what Wilkins

and Gulati found in the corporate bar only.

108

102. See Wilkins & Gulati, supra note 1, at 589.

103. Id. at 591.

104. Id. at 565.

105. See id. at 567.

106. Id.

107. Id. at 571.

108. Only lawyers who worked in a law firm are included in the results shown in Figure 1.

116 University of Michigan Journal of Law Reform [Vol. 55:1

IGURE 1. LIKELIHOOD OF EXITING A LAW FIRM FOR ANY REASON BY RACE

109

According to Figure 1, Black lawyers are the group most likely to exit

law firms for any reason, controlling for other demographic,

educational, and professional characteristics.

110

This difference is

statistically significant when Black and white lawyers are compared.

The racial differences in the likelihood of leaving firms persist over

time. This trend suggests that—accounting for other demographic,

educational, and professional characteristics—race still plays a role in

maintaining disparities in law firms’ retention over time, especially

among Black lawyers.

111

Other variables are statistically significant characteristics when

predicting the likelihood of exiting a law firm.

112

For example, law

109. The predicted probabilities by race in the y-axis were calculated based on the logistic

regression models presented in Table A2 of the Appendix, while holding all other variables at their

observed values. Prepared by the author based on data from American Bar Foundation’s After the

JD project.

110. All else being equal, only Latinx lawyers are less likely than white attorneys to make the

same career move.

111. Evidence from other studies shows that African American lawyers end up starting their

own firms, moving laterally, or practicing in other sectors. See Wilkins, supra note 15, at 1734–35,

1745–47; Wilkins & Gulati, supra note 15, at 580–81. At the same time, Asian lawyers also leave firms

voluntarily at high rates, but rather than being mostly pushed to the public sector like many

African Americans, recent analyses based on the AJD show that some Asian lawyers have instead

found career prospects in business settings, such as prestigious in-house departments. See

Dinovitzer & Garth, supra note 74, at 356.

112. Recall the white lawyers who have not declared to be from a Latinx background are the

reference group to which individuals from other races and ethnicities are compared. For this

'=!

003

004

5 2

8 2

9 2

010

011

African

American

♦

l.atinx

A. ian

····• ···

Whicc

FALL 2021] Black Lawyers Matter 117

school ranking, gender, and the desire to leave a current employer

within a year are associated with the probability of moving away from

law firms. GPA in legal education is not. And when controlling for any

form of perceived discrimination, being African American as opposed

to white remains statistically significant. These results indicate that

firm-level experiences help explain why lawyers exit law firms, but race

alone continues to be a significant predictor of why Black lawyers exit

at much higher rates than their white counterparts with a comparable

background.

C. Moving Down: The Lay-off Racial Gap in U.S. Law Firms

The second career outcome examined statistically is the probability

of being fired from a law firm. A value of 1 (one) has been assigned to

lawyers who reported “contract end, fired, firm downsize/closed,

merger”

113

as the reason for a job transition in the AJD survey.

114

Zero (0)

has been coded as otherwise.

115

As Galanter and Palay explained, even

before their analysis, big law firms operated under an “up-or-out”

system.

116

Research on offices in Chicago

117

and New York

118

documented how racial and ethnic minorities were more likely to be

dismissed than whites. Wilkins and Gulati also discussed this issue in

the corporate bar.

119

Figure 2 displays a deep, persistent, and

statistically significant racial gap in the probability of dismissal

between African American and white lawyers.

reason, except for race, the statistical significance of the independent and control variables in the

logistic regression is measured while taking white lawyers into account. At the same time, the

predicted probabilities by race are calculated, holding these same variables constant, and they

confirm a racial gap between Black and white lawyers with otherwise similar characteristics.

113. These distinct forms of dismissal are coded together as a means of capturing forced

career transitions, which stem from firms’ decisions rather than a lawyer’s own choice to change

employers or settings. Although these categories have substantive differences, the fact remains

that firms are the ones with the power to decide that Black lawyers are let go more frequently than

white lawyers based on race.

114. See A

M.BAR FOUND., AFTER THE JD: A LONGITUDINAL STUDY OF CAREERS IN TRANSITION,AJD

UESTIONNAIRE—WAVE 2, 10–11 (2007) (on file with author); AM.BAR FOUND., AFTER THE JD: A

ONGITUDINAL STUDY OF CAREERS IN TRANSITION,AJD 3 QUESTIONNAIRE, 10–11 (2012), https://

www.icpsr.umich.edu/web/ICPSR/studies/35480/datadocumentation (under the “Data &

Documentation” tab, select “Download”; then choose “Questionnaire [PDF]”).

115. Again, the analysis is restricted to lawyers who worked as associates.

116. See G

ALANTER &PALAY, supra note 15, at 29.

117. Id. at 35.

118. Id. at 26, 29.

119. See Wilkins & Gulati, supra note 1, at 608.

118 University of Michigan Journal of Law Reform [Vol. 55:1

IGURE 2. LIKELIHOOD OF BEING FIRED FROM A LAW FIRM BY RACE

120

White lawyers have the lowest probability of being fired. All else

being equal, African American lawyers are significantly more likely than

white lawyers to be fired—followed, again, by Asians. Similar to

voluntary moves away from firms, grades are statistically insignificant

when calculating the chance of being fired. Thus, educational

performance does not explain the racial disparity.

Most importantly, the racial gap in dismissals remains significant

over time. Different from the other results previously described, having

ever worked part-time is the only employment characteristic that

significantly explains the movement of being fired from a law firm.

These findings suggest that race influences the chances of layoff more

significantly than workplace and educational characteristics do.

D. Moving Up in the Profession: Becoming Equity Partner

The last career outcome assessed quantitatively is promotion to

equity partner, which is coded as a binary variable. The value of 1 (one)

indicates that a lawyer reported an equity partnership position in the

AJD survey, whereas 0 (zero) reflects individuals who have never been

120. The predicted probabilities by race in the y-axis were calculated based on the logistic

regression models presented in Table A2 of the Appendix, infra, while holding all other variables at

their observed values. Prepared by the author based on data from American Bar Foundation’s After

the JD project.

...

..............

...

..............

...

....

......

...

.............

...

......

...

..............

...

....

........

...

V")

2003

2004

2005

2006

2007

2008 2009

Year

African American

--♦--

Latinx

....

...

Asian

----

•

---

White

FALL 2021] Black Lawyers Matter 119

an equity partner.

121

The movement up a firm’s job ladder also presents

some racialized patterns, as Figure 3 makes clear.

IGURE 3. LIKELIHOOD OF PROMOTION TO EQUITY

ARTNER BY RACE

122

According to Figure 3, the probability of becoming an equity

partner is higher for white lawyers than other racial groups with

otherwise similar characteristics. Also, the gap between white and non-

white lawyers grows over time. Grades and law school ranking are not

statistically significant in predicting equity partnership. Although

perceived discrimination is a strong explanatory characteristic of

becoming partner in models estimated without all the other variables, it

is not significant when controlling for other career factors.

This trend calls attention to the other variables that significantly

influence the likelihood of promotion to partnership. Having plans to

leave the current employer within a year is significantly associated with

a decrease in the probability of becoming an equity partner. Most

importantly, the promotion to equity partnership is the only outcome in

121. Again, the analysis is restricted to lawyers who worked in a law firm.

122. The predicted probabilities by race in the y-axis were calculated based on the logistic

regression models presented in Table A2 of the Appendix, infra, while holding all other variables at

their observed values. Prepared by the author based on data from the American Bar Foundation’s

After the JD project. 2012 appears here but not in the other graphs because the data show the

lawyers who eventually became partners in 2012. To include 2012 when estimating the other two

outcomes, it would be necessary to know whether lawyers exited or were fired from a law firm in

2013, i.e., the year after Wave 3—when the AJD questionnaire was last distributed and organized.

2003

2004

2005

2006

2007

2008

Year

2009 2010

--------

African American -

♦

- - Latinx

........

...

Asian

----•---

White

2011

2012

120 University of Michigan Journal of Law Reform [Vol. 55:1

which all the indicators of a lawyer’s professional trajectory are

statistically significant. Also, being an African American as opposed to

white remains marginally significant, controlling for these other

factors. Taken together, these patterns suggest that firm-level variables

and the characteristics of lawyers’ professional trajectories shape the

probability of promotion to partnership in addition to race alone.

Therefore, the career constraints that lead lawyers to leave law

firms, along with firm-level factors, help explain lawyers’ chances to

move either up or down the ladder within the firm setting. In the next

Part, I discuss the quantitative results in light of how lawyers

themselves described their careers. To do so, I examine how legal

professionals who worked as associates received their assignments

from partners, how they felt about working on such assignments with

the help of partners, and how they ultimately perceived their

opportunities to ascend within firms.

III.

HE INTERVIEW DATA:RACIAL RELATIONS THROUGH THE EYES OF

LAWYERS

Garth and Sterling have thoroughly mapped racial differences in

how lawyers describe their experiences as associates.

123

Their interviews

with lawyers surveyed by the AJD project have been transcribed and

organized by the ABF.

124

This unique source of qualitative data on

lawyers’ careers has served as the basis for other projects carried out by

the ABF.

125

Lawyers’ narratives cast light on partner attitudes toward

associates and the perceived cultural fit among lawyers. Such stories,

according to the authors, have a strong racial component.

126

complement their work with an emphasis on factors that go beyond

fit,

127

I completed a qualitative analysis of the AJD interviews to

examine subtle, racialized patterns in how private firms’ organizational

characteristics shape lawyers’ careers.

To do so, I used the qualitative data analysis software Atlas.ti to

examine the content of the AJD interviews. First, I built a subsample of

lawyers who worked as associates. Next, I coded excerpts of

conversations with Atlas.ti’s auto-coding function. This way, I was able

to use the linguistic root of certain terms to maximize the amount of

123. See Garth & Sterling, Exploring Inequality, supra note 20; Garth & Sterling, Diversity,

Hierarchy, and Fit, supra note 20.

124. See Garth & Sterling, Exploring Inequality, supra note 20, at 1363 (“[The article’s] goal was to

add a qualitative component to the raw data collected as part of the After the J.D. project”).

125. These initiatives include a book project on which I am working alongside Garth, Sterling,

and other collaborators.

126. See Garth & Sterling, Exploring Inequality, supra note 20, at 1365.

127. See Garth & Sterling, Diversity, Hierarchy, and Fit, supra note 20, at 127.

FALL 2021] Black Lawyers Matter 121

text to be empirically scrutinized. For example, the code “promo”

includes words such as promoted and promotion, “mentor” refers to

mentor and mentorship, and the like. Table 1 lists Atlas.ti codes with the

number of times they appear in the interviews.

ABLE 1. FREQUENCY OF THE CODES COLLECTED FROM THE INTERVIEWS

Code Frequency

Advance 287

Assign 174

Coffee+Dinner+Lunch+Meal 2737

Dismiss+Fire+Terminate 299

Laid+Lay 367

Mentor 87

Partner 413

Promo 344

Social 61

Number of interviews 137

128

All the codes in Table 1 were chosen based on the questions asked by

AJD interviewers. By drawing from the questions, I seek to capture the

determinants of career transitions similar to the quantitative analysis.

Thus, the topics covered by my coding methodology include

advancement opportunities and promotion, chances to socialize with

partners and clients, employment termination, access to partners and

mentorship, and opportunities to obtain and work on assignments.

129

A. Receiving Assignments: The Racial Division of Labor

The qualitative data enrich understanding of the statistical patterns

by capturing the law firm experience through the lenses of the lawyers

on whom the quantitative findings are based. Consider, for instance,

128. The sample of 137 refers to the number of interviews, not the number of lawyers. Some

legal professionals were interviewed more than once.

129. Although the interview questionnaire includes structured questions about lawyers’

careers, the interviewees frequently pushed the conversation in directions that demanded the use

of distinct words. Consider, for instance, the interplay between joining partners for meals and

receiving partner mentorship. While some attorneys talked about this point by mentioning

mentors within the firm setting explicitly, others explained the value of having a coffee, lunch, or

dinner with partners. For this reason, I draw from a combination of terms while using the auto-

coding tool in Atlas.ti.

122 University of Michigan Journal of Law Reform [Vol. 55:1

the initial step for associates to show their work: receiving assignments.

As Wilkins and Gulati documented,

130

African American lawyers were

more likely to end up doing “routine paperwork” in firms’ “flatline

track.” Their white peers, by contrast, tended to work on challenging

assignments in the “training track.” Monica,

131

a white lawyer,

132

explained how quickly she became staffed with enough cases at her

firm:

Interviewer: I guess, if you could be explicit about how

assignments get given out to associates here.

Monica: [T]here is an assigning partner[,] so when you first

come, when an associate first comes in, the first assignment is

through that assigning partner. And then people sometimes go

back to that assigning partner and he will call around and ask

people[,] but it’s for the most part people get work

informally. . . . And pretty much within the first month or two[,]

I was staffed on enough cases that I never went back to the

assigning partner. . . . Everything else has been through people

I’ve already worked with or someone I went to and said[,] “I’d

really like to work on this kind of case, do you have anything?”

and I think that’s fairly typical. I might have started doing that

earlier[,] but most people don’t get their work through the

assigning partner, which makes the assigning partner’s life

difficult.

133

What Monica perceives as informal actually opens the door to

biases based on the chances of having “worked with” someone. If

African American lawyers are less likely to benefit from the

opportunities to interact with partners from the outset, the formal and

informal processes through which assignments are distributed in law

firms may compound the disadvantage faced by Black lawyers.

Although, formally speaking, Monica’s firm has an assigning partner,

the everyday practice in the firm underscores the importance of

working with other lawyers and partners to receive important

assignments informally. For example, Lynden, an African American

130. Wilkins & Gulati, supra note 1, at 565.

131. Interviews by American Bar Foundation’s After the JD Project (AJD) with anonymous

subjects. Interview transcripts are on file with the author. I use pseudonyms for all the

interviewees quoted in this Article. Note that transcript quotes are subject to spelling and

grammar errors.

132. Racial categories used in the interviews are self-reported by lawyers in the AJD survey

questionnaire.

133. See Interview 37 by American Bar Foundation’s After the JD Project (AJD) with

anonymous subject, at 12 (on file with author).

FALL 2021] Black Lawyers Matter 123

lawyer, explained how race might have played a role in the distribution

of his tasks:

Interviewer: What about when it comes to getting assignments.

Have there ever been instances where you felt either you were

given an assignment or not given an assignment as a result of

your race?

Lynden: I don’t think that’s ever—I just mention that we try to

be open minded and certain things happen and if you can’t

attribute them to that, then you don’t do it. There’s been one or

two occasions that it just seemed odd that I had an assignment

and then the most senior partner on the case said, “oh, he’s

doing it,” and then it kind of got switched. But I never got the

sense, I mean I have a good reputation, my work product is at

least acceptable, there are people that like what I do, so I didn’t

know what to attribute that to other than that person had their

own hand-picked—which is very much the case. Usually the

most senior partners, they reach out and they say, “I like John,

[he] is my guy,” so they try to make sure that everything that

comes out kind of goes through John. Since I don’t have that

kind of relationship, I just assumed that they said, “oh, you,”

[and] said to the junior partner, “you should have thought about

who I like.”

134

Lynden, to be sure, tries “to be open minded” when asked about

racial relations in the context of getting assignments. He recalls only a

few occasions that “seemed odd” to him. However, his story confirms

the persistent workplace dynamics of senior partners who prefer that

“everything . . . goes through” their “guy[s].” Lynden also makes it clear

that he does not have that kind of relationship with the most senior

partners to whom he refers. Comparing Monica’s account to Lynden’s,

it is possible to see the limits of a formal assigning partner system and

the potential of cultivating informal relationships with the “partners

with power”

135

when cases are assigned or redistributed.

134. See Interview 11 by American Bar Foundation’s After the JD Project (AJD) with

anonymous subject, at 6 (on file with author).

135. See R

OBERT L. NELSON,PARTNERS WITH POWER:THE SOCIAL TRANSFORMATION OF THE LARGE

LAW FIRM 212 (1988) (describing an interview in which a retired partner details the value of

cultivating ties between partners and within firms “on the basis of an ongoing relationship, not on

the basis of a document or a formal agreement.”).

124 University of Michigan Journal of Law Reform [Vol. 55:1

B. Knocking on the Partners’ Doors: The Role of

Mentorship in Working on Assignments

After assignments are circulated, there are distinct perceptions of

how open partners are to working with associates, including providing

mentorship. Consider an account from Jackson, a white man:

Interviewer: [I]s it comfortable to . . . walk into the senior

partner’s office and ask a question if you are not sure what to do

on something?

Jackson: Yeah, oh yea, we have an open-door policy . . . it’s fairly

informal in that respect. . . . You know, as far as the chain of

command. I mean, we all know where it comes from, but yeah, I

could walk into any office at any moment and anyone is free to

walk into my office.

136

Similar to Jackson’s account, I saw the repeated use of the term

“open-door policy” among other white attorneys. Joshua, another white

lawyer, explains how a formal mentorship track became unnecessary

once he perceived “such an open-door policy” in the office:

Interviewer: So when you have questions[,] do you feel free to

walk into a partner’s office and ask questions?

Joshua: Yea, . . . we started off with sort of a formal mentoring

relationship. . . . That lasted for probably a year technically, but

in reality[,] there was such an open[-]door policy with the firm

that I, I never really felt like it was necessary. . .

137

Interviewer: OK, well is there somebody [with whom] you

would perhaps go out to lunch, have a drink, talk about career

in general?

Joshua: Well, there’s one guy I play golf with somewhat

regularly . . . [w]ho’s actually one of the senior partners, and we

play in a league together with clients every Tuesday. So he and I

have, I guess, a very open relationship, as far as talking about

the firm. . . . And expectations for, for me. And we typically sit

down after the partnership meetings, and he’ll give me the, the

136. See Interview 10 by American Bar Foundation’s After the JD Project (AJD) with

anonymous subject, at 4 (on file with author).

137. See Interview 48 by American Bar Foundation’s After the JD Project (AJD) with

anonymous subject, at 10 (on file with author).

FALL 2021] Black Lawyers Matter 125

recap of exactly what occurred. So[,] I think I’m probably more

informed than most associates are.

138

Again, what started through a firm’s formal, organizational channel

(here, a mentorship program) permitted the creation of an informal yet

organizational process through which white associates could build ties

with partners. Perhaps not surprisingly, there are distinct perceptions

of how open associates consider the partners’ doors when the former

needs to ask for help. Instead of a horizontal form of management,

some lawyers express their views of a vertical, hierarchical relationship

with partners when working on an assignment. Amir, a lawyer who self-

identified by selecting the category “from other racial background,”

described such a hierarchy in the firm where he worked:

Interviewer: [C]an you go . . . to partners and ask for any kind of

help? . . .

Amir: [N]o, and I’ll tell you why, just because my first two

assignments were with mid-level associates and it was a clear

hierarchy and I didn’t need to. And again, you’re oblivious to

what your role is and you’re very nervous about asking dumb

questions and you’re very nervous about bothering the partner

with questions that the associate can answer. So you’d be very

hesitant to ask the partner for anything unless of course you’re

working with the partner.

139

Amir’s story highlights two important patterns that exist in the

everyday work of an associate. First, although a formal hierarchy exists,

there are unclear situations as to whether a junior lawyer should direct

questions to mid-level associates before “bothering” partners. Second,

working alongside a partner gives associates the chance to pass through

the formal hierarchy of the firm and address questions about legal

matters and other issues. Associates with access to partners eventually

come out ahead when compared to associates without such channels of

communication with the firm’s leadership.

140

138. Id.

139. See Interview 4 by American Bar Foundation’s After the JD Project (AJD) with anonymous

subject, at 6 (on file with author).

140. Law firm partners play multiple and important roles in how assignments are distributed

and in offering insights into how best to work on such tasks to satisfy clients. These factors

ultimately shape how law firms operate and how the lawyers working there are expected to behave

to advance in their careers. See, e.g.,N

ELSON, supra note 135.

126 University of Michigan Journal of Law Reform [Vol. 55:1

C. Navigating Law Firms’ Coded Information to Reach Partnership

Interactions with partners, in sum, help associates learn about their

job prospects. Through these channels, associates gain access to

valuable information regarding advancement opportunities. James, a

white associate, illustrates comprehensive knowledge of his firm’s

standards for promotion to partnership:

Interviewer: [O]n this, technicalities [in] the firm. Do you know

what the processes are for promotion to partner, how that

works here[?]

James: I do. . . . , you are eligible for partner 8 years out of law

school and you get 1-for-1 credit for clerkship, largely any legal

experience that you have up to . . . I think it might be 2.5 years, I

don’t recall, that translates directly, cause I think for people

who do 3 years of clerkship, one at each level, or [2 years] at

District Court and then a Court of Appeals, you may lose half a

year and then you’re I think in the discretionary call where they

can either put you with your class or back you up half a year,

you’d be paid with your class. So, at the end of 8 years there is a

vote by the partnership[,] and . . . we don’t right now have any

tiers at all. It is solely an equity partnership. There are isolated

individuals who have a counsel position but [they’re] usually

partners who are later in their careers and want to sort of

decrease their hours and start phasing towards a next stage, or

sometimes [there have] been individuals who have been out and

back and aren’t really sure that they want to come back and join

the partnership full time, so we probably have 4 or 5 people who

are counsel right now, and there [has] been, I think, one

associate I can think of who took himself out of, I don’t know

formally how that is done, but took himself out of partnership

consideration and kind of has a [niche] part of the practice . . .

— I don’t know what his compensation is, but he is, I think, still

technically an associate.

141

James thoroughly describes how long it would take for him to be

considered for partnership, followed by how points count toward his

promotion. Indeed, he is well aware of the different tracks that exist in

the firm with respect to a counsel position versus partnership. Although

the circulation of detailed information might be similar across firms,

141. See Interview 2 by American Bar Foundation’s After the JD Project (AJD) with anonymous

subject, at 4–5 (on file with author).

FALL 2021] Black Lawyers Matter 127

even offices that are deemed to be transparent by associates can be

nevertheless opaque. For example, Ricardo, a Latino lawyer, proudly

described the transparency of his law firm with respect to its promotion

system:

Interviewer: OK, and did they talk about when it would be that

you’d be considered for promotion?

Ricardo: [T]hey’d need a minimum of two years to evaluate me,

which puts me within the window of . . . the normal track. They

didn’t volunteer it, I asked. But . . . it’s very clear here. They have

[a] pretty good, fairly well enforced system here.

142

Interviewer: Sounds much more transparent than many firms.

Ricardo: They’re very transparent. Apparently they [are], and

again, I’m new so I haven’t seen it.

143

Ricardo intelligently explains how quickly he could be considered

for promotion within the regular associate-to-partner track in his firm.

However, he needed to ask for it to happen, despite how “well enforced”

and “transparent” the system that his firm had implemented arguably

was. Pamela, an Asian attorney, on the other hand, candidly explains

why that might have been the case, even though she and Ricardo did

not work in the same firm: “You continue to advance or else you get

fired.”

144

Pamela’s statement highlights the persistence of an “up-or-out”

partnership track system in American law firms that Galanter and Palay

and others identified during the twentieth century.

145

If Ricardo had

not asked to move up, would he have been pushed out of the

partnership track entirely?

Charles, a white lawyer, emphasizes that the more associates move

up, the more details they may obtain to navigate firm structure. As

Charles explained, associates have to decipher the “coded” information

provided by partners. Such details are key to thriving within the firm

142. See Interview 23 by American Bar Foundation’s After the JD Project (AJD) with

anonymous subject, at 23 (on file with author).

143. Id.

144. See Interview 11b by American Bar Foundation’s After the JD Project (AJD) with

anonymous subject, at 2 (on file with author).

145. Even considering the transformations of big law firms regarding their relationships with

corporate clients, Pamela’s case indicates that some institutional characteristics within firms have

remained over time. See, e.g.,A

BEL, supra note 12; HEINZ &LAUMANN, supra note 12; SMIGEL, supra

note 12. See generally G

ALANTER &PALAY, supra note 15.

128 University of Michigan Journal of Law Reform [Vol. 55:1

setting, which highlights how crucial the socialization opportunities

with the firm’s leadership are.

Interviewer: [S]o when you switched to be an associate[,] did

anyone talk about what the process for promotion is at the

firm[?]

Charles: They periodically have things, associate luncheon type

of deals, where at least once a year they have somebody do that

and a lot of it is informal; you know, chatting with people

within your group and lunches with partners and people like

that who tell you about the business and how it was when, you

know, a lot of it is somewhat coded. . . . [A]nd they sort of say,

“well, this is what we had to do,” passing the expectations on to

you and, like I said, they do have the more formal luncheons

and things like that when they talk about the process and things

that they look at; and in the end, if you know people who are

higher up, they start to tell you a lot more as you get higher

up.

146

Thus, lawyers must devise strategies to navigate both

organizational structure and culture in order to follow firms’ formal

rules and informal norms. As the interviews reveal, some professionals

were pushed up through informal, yet organizational, practices. Others,

by contrast, had to ask for such advancement opportunities to remain

in the associate-to-partner track.

These differences continue to be shaped along racial and ethnic

lines. What the qualitative information suggests is confirmed by the

quantitative analysis. Recall that the regression models revealed that

lawyers from minority backgrounds are frequently pushed out of law

firms and the partnership track compared to white lawyers, all else

being equal.

147

Therefore, racial minorities, as well as women, often

need to think of strategies that take into account other employment

opportunities outside law firms.

D. Considering Other Practice Settings

In the AJD project, Dinovitzer and Garth have found that racial and

ethnic minorities and women are overrepresented in the business and

146. See Interview 93 by American Bar Foundation’s After the JD Project (AJD) with

anonymous subject, at 6 (on file with author).

147. See supra Figures 1, 2, and 3.

FALL 2021] Black Lawyers Matter 129

public sectors.

148

Although law firms endured a severe decrease in

business after the 2008 crisis,

149

Wilkins and Esteban Ferrer

documented how big accounting firms expanded their global legal

services.

150

Lawyers in the United States have observed this trend when

talking about employment opportunities beyond law firms, such as

Beau (a white lawyer): “I think, if you want opportunities to get into

corporate America, you should go to an accounting firm, because it’s a

completely different business model in that nobody gets fired at these

accounting firms.”

151

Beau’s account is certainly an exaggeration. But it is an important

indicator of the perception of employment opportunities in this sector.

It also shows a sense of the potentially higher stability in another

corporate job, compared to staying at a law firm as an associate.

When Galanter and Palay first conceptualized the context of the

rise of the “big law firm,”

152

getting “into corporate America” through an

accounting firm may have worked as a secondary option. But Galanter

and Henderson

153

have identified changes to the partnership track that

have unfolded in tandem with increasing opportunities in other

settings,

154

such as in the rise of the “big accounting firms.”

155

Similar perceptions also appear in the stories told by lawyers who

remained at a law firm but saw their colleagues moving elsewhere. The

circulation of lawyers from law firms to the public sector and back to

firms reveals an interesting dualism in terms of career paths and

outcomes when considering switching jobs and sectors. Mitchell, a

white lawyer, described how moving from a position in the government

to a firm can be challenging. As Mitchell puts it: “I knew some lawyers

who came over from the [attorney general’s] office, who are here now,

actually, who were more advanced in their careers, but, you know, they

had to come in as staff attorneys, because they didn’t have a book of

business.”

156

148. See Dinovitzer & Garth, supra note 74, at 346.

149. See Garth, supra note 75, at 509–10.

150. See David B. Wilkins & Maria J. Esteban Ferrer, The Integration of Law into Global Business

Solutions: The Rise, Transformation, and Potential Future of the Big Four Accountancy Networks in the Global

Legal Services Market, 43 L.

OC.INQUIRY 981, 989–96 (2016) (identifying how big accounting firms

have not only gained some market share of traditional corporate law firms but have also attracted

talented corporate lawyers, which is a new setting in which they can find profitable and prestigious

employment).

151. See Interview 12 by American Bar Foundation’s After the JD Project (AJD) with

anonymous subject, at 17 (on file with author).

152. See G

ALANTER &PALAY, supra note 15, at 16 (describing how firms and their lawyers devised

strategies to serve their business clients).

153. See Galanter & Henderson, supra note 43, at 1896.

154. Id.

155. See Wilkins & Esteban Ferrer, supra note 150, at 981–84.

156. See Interview 48b by American Bar Foundation’s After the JD Project (AJD) with

anonymous subject, at 4 (on file with author).

130 University of Michigan Journal of Law Reform [Vol. 55:1

It is noteworthy that Mitchell sees his colleagues advancing in their

careers while facing some hurdles after moving from the government to

a private law firm. Thus, although career constraints exist, some

lawyers, again, devise skillful strategies to progress within the firm

setting and thrive within the structure of the bar. At the same time,

other legal professionals, especially women and people of color, end up

moving forward with their careers in the public sector. This trend has

been perceived as a structural issue of the partnership track as well as

being contingent upon career aspirations, such as James (a white

lawyer) explained:

I don’t know actually what our numbers [in terms of lawyers of

color] are. I think it’s obviously worse in the partnership than it

is among associates but one of my best friends in DC was an

African American associate here who always wanted to be a

public defender and left us to go do that.

157

In his account, James raised an interesting argument regarding

what his friend “always wanted to be.”

158

Yet, James did not mention

how socialization opportunities in law school and within firms matter

to one’s choice of career path. For instance, a lawyer may realize that,

despite the obstacles posed by law firms to most female and non-white

lawyers, there are mechanisms that help explain both their permanence

and success within such an environment. Indeed, Claire, an Asian

attorney, shows a deep understanding of the career moves of her

colleagues and how the long-standing, continuing mentorship provided

by former employers has influenced her own path:

Interviewer: I forgot to ask[,] have you had any career mentors

particularly?

Claire: Yeah, I’m not official where I would say to their face[s,]

[“]you’re a mentor to me,[”] but one from another firm . . . was a

great teacher to me while I was there and we’ve kept in touch

over the years, and she also has three kids and we just had

dinner July 3rd, so I’m lucky in that she’s a very busy partner

and she made time to come down here to have dinner with me

and hang out when she didn’t have to. . . .

159

157. See Interview 2 by American Bar Foundation’s After the JD Project (AJD) with anonymous

subject, at 14 (on file with author).

158. Id.

159. See Interview 66 by American Bar Foundation’s After the JD Project (AJD) with

anonymous subject, at 9 (on file with author).

FALL 2021] Black Lawyers Matter 131

Interviewer: And did [people from your law school] go into

traditional law practice like you did with firms?

Claire: So almost everyone that I know that I’ve kept in touch

with started with the large law firm, but one now is at the

[Santa Clara County], one is at the public defender, one is . . .

she made partner at a law firm in San Francisco.

160

The stories of Claire and the other interviewees underscore how

important it is to recognize that lawyers are agentic social actors. They

have control over their careers, even though they have more or fewer

options depending on their work environment.

161

Such options,

however, are largely distributed along racial and gender lines.

162

The inequality in the amount of information circulated in law firms

directly relates to racial differences in the attention that associates

receive from partners. These disparities range from obtaining

assignments, to working on legal matters, to learning details about

promotion. For example, Joshua, the white associate who played golf

with partners and clients, did not talk about promotion, because he had

no need to do so. Conversely, there are several instances where we see

Black lawyers feeling restrained in asking questions about how to

advance their career opportunities. The distinct experiences reflected in

the interviews highlight that law firms’ differential treatment of

associates presents racialized patterns.

ONCLUSION

In the contemporary American legal profession, the notion of

hierarchy, fit, and not having key networks within law firms exemplify

the difficulties of navigating the firm context as an associate of color.

This point is particularly salient among African American lawyers. At

160. Id. at 16.

161. It is important to acknowledge that lawyers’ decisions concerning their jobs are

embedded within the economic and organizational structures in which they work. They are not

only a product of an environment, however. These attorneys have found ways to build their careers

by moving from one employer to another or working towards a promotion, despite the obstacles

posed to them. See generally Wilkins & Gulati, supra note 1; Kay & Gorman, Women in the Legal

Profession, supra note 64; Kay & Gorman, Developmental Practices, supra note 64. Social actors, in

general, and lawyers, in particular, do exercise agency. Still, their choices and aspirations are also

influenced by the professional structure that they find when working in legal organizations. This

reality applies to attorneys practicing law in different jurisdictions, such as in the U.S. and the U.K.

IVERSITY IN PRACTICE:RACE,GENDER, AND CLASS IN LEGAL AND PROFESSIONAL CAREERS, supra note 4

at 249, 251.

162. See generally Wilkins & Gulati, supra note 1; Kay & Gorman, Women in the Legal Profession,

supra note 64; Kay & Gorman, Developmental Practices, supra note 64; D

IVERSITY IN PRACTICE:RACE,

ENDER, AND CLASS IN LEGAL AND PROFESSIONAL CAREERS., supra note 4.

132 University of Michigan Journal of Law Reform [Vol. 55:1

the aggregate, quantitative level, these patterns result in racial

differences between Black lawyers and white lawyers in voluntary and

involuntary exits from law firms, as well as in promotions within firms.

The formal mechanisms through which law firms structure their

job ladders and how lawyers should climb them coexist with informal,

yet institutionalized hurdles. Law firms thus continue to work under a

system that perpetuates racial inequality.

163

They operate based on

moving targets, which impair African Americans from having

predictable and reliable career trajectories.

164

This work has drawn from extensive socio-legal scholarship on

racial inequality in the legal labor market,

165

which has long followed

and marked the American legal profession. In using both qualitative

and quantitative data from the first longitudinal survey of lawyers’

careers, I have found that grades, law school background, and law firm

characteristics do not explain away the fact that African American

lawyers are less likely to become equity partners than white lawyers.

Nor are these characteristics significant in accounting for why Black

lawyers are more likely to exit law firms and to be dismissed. Simply

put, being African American as opposed to white reduces the chances

that a lawyer will move up within firms and significantly increases the

odds of being forced out.

These findings reinforce the conclusion that the U.S. bar remains

stratified by both race and gender. People of color need to consider such

challenges as they devise strategies to navigate the contemporary legal

labor market. This is why there still are so few Black lawyers in

American private law firms.

166

The U.S. legal profession, therefore,

ought to set instruments in place to remedy racial inequality.

Affirmative action is among the instruments that Wilkins and

Gulati identified as important for furthering diversity and inclusion in

legal education as well as in law firms.

167

However, affirmative action

has been challenged in American courts.

168

In 2003, Supreme Court

Justice Sandra Day O’Connor ruled in the landmark case, Grutter v.

Bollinger: “We expect that 25 years from now, the use of racial

163. Several scholars have documented that, even though discriminatory practices may have

changed throughout the twentieth century, they remain visible in law firms and continue to

negatively influence the careers of racial minorities and women. See Kay & Gorman, Developmental

Practices, supra note 64. See generally S

MIGEL, supra note 12; HEINZ &LAUMANN, supra note 12; Wilkins

& Gulati, supra note 1; Payne-Pikus et al., supra note 4.

164. See Kay & Gorman, Developmental Practices, supra note 64. See generally S

MIGEL, supra note

12; H

EINZ &LAUMANN, supra note 12; Wilkins & Gulati, supra note 1; Payne-Pikus et al., supra note 4.

165. See Kay & Gorman, Developmental Practices, supra note 64. See generally S

MIGEL, supra note

12; H

EINZ &LAUMANN, supra note 12; Wilkins & Gulati, supra note 1; Payne-Pikus et al., supra note 4.

166. See Wilkins & Gulati, supra note 1 (explaining similar obstacles that Black lawyers faced

while focusing on the corporate bar only).

167. Id. at 512–13.

168. Id. at 598 n.401.

FALL 2021] Black Lawyers Matter 133

preferences will no longer be necessary to further the interest approved

today.”

169

But questions about the future of affirmative action and

whether this part of the ruling remains accurate are in contention.

These issues are pressing, especially considering the solidly

conservative majority in the Supreme Court, which is expected to hear

SFFA v. Harvard.

170

With less than ten years to reach the expiration date

predicted by Justice O’Connor, racial inequality continues to pervade

the bar in the United States, making affirmative action still very much

necessary.

By calling attention to this pressing matter, this study furthers our

understanding of the role of race within the legal profession. The

inquiry here is novel because it explains that making equity partner

within a law firm continues to be dominated and shaped by race. Race

is also a significant predictor of being dismissed, and once that occurs,

the findings show that African American lawyers have greater difficulty

re-entering the partnership track in a subsequent law firm.

In conclusion, the advancement and socialization opportunities

that ultimately help lawyers become partners are significantly reduced

for African American lawyers, compared to their white counterparts

with similar credentials and experience. The quantitative data, along

with the interviews, show that racial mechanisms of inequality persist.

They are institutionalized in the bar and pose significant barriers to the

career progress of minorities, in general, and Black lawyers, in

particular.

171

169. Grutter v. Bollinger, 539 U.S. 306, 343 (2003).

170. See generally Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.

(Harvard Corp.), 397 F. Supp. 3d 126, 131 (D. Mass. 2019), aff’d sub nom., Students for Fair

Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157 (1st Cir. 2020), petition for cert.

filed, U.S._ (Feb. 28, 2021) (No. 20-1199).

171. See, e.g., Garth & Sterling, Diversity, Hierarchy, and Fit, supra note 20.

134 University of Michigan Journal of Law Reform [Vol. 55:1

PPENDIX

Table A1. Descriptive statistics of the sample by outcome

172

Law Firm

Exits

Fired from

Law Firms

Equity

Partnership

African American 0.07 0.08

0.09

Latinx 0.10 0.10

0.10

Asian 0.09 0.10

0.10

White 0.73 0.73

0.71

Female 0.43 0.43

0.49

Male 0.57 0.57

0.51

Not Married 0.22 0.22

0.23

Married 0.78 0.78

0.77

No children 0.55 0.55

0.54

1 Child 0.22 0.22 0.21

2 Children 0.18 0.18 0.19

3+ Children 0.05 0.05 0.06

Law School GPA<2.99 0.14 0.15 0.15

Law School GPA 3.00-3.24 0.19 0.19 0.19

Law School GPA 3.25-3.49 0.22 0.22 0.21

Law School GPA 3.50-3.74 0.14 0.14 0.15

Law School GPA 3.75-4.00 0.07 0.07 0.07

LSAT 0-50 Percentile 0.25 0.25 0.24

LSAT 50-75 Percentile 0.42 0.41 0.40

LSAT 75-100 Percentile 0.09 0.08 0.09

Law School Rank 1-10 0.11 0.11 0.13

Law School Rank 11-20 0.12 0.12 0.13

Law School Rank 21-50 0.22 0.22

0.22

Law School Rank 51-100 0.27 0.27

0.26

Law School Rank 101-137 0.16 0.16

0.14

Law School Rank <137 0.11 0.11

0.10

172. For a straightforward presentation of the sample characteristics, year and the missing

categories have been omitted from this table. Any inconsistencies in the proportions are due to

rounding errors. The data are from the three Waves of the AJD. Sample: Lawyers who worked in

corporate law firms at any point in the first twelve years of their careers, including those who

moved to other practice settings.

FALL 2021] Black Lawyers Matter 135

Table A1. Continued

Unperceived

discrimination

0.87 0.88 0.89

Perceived

discrimination

0.13 0.12 0.11

Overall satisfied with

advancement

opportunities

0.56 0.54 0.44

Overall dissatisfied with

advancement

opportunities

0.07 0.06 0.07

Does not join partners for

meals

0.07 0.06 0.07

Joins partners for meals 0.25 0.24

0.19

Does not desire to leave

current employer within a

year

0.51 0.49 0.38

Desires to leave current

employer within a year

0.11 0.10 0.12

Cumulative probability to

have ever worked

part-time

0.05 0.05 0.07

Cumulative probability to

have ever exited the labor

force

0.16

Cumulative probability to

have ever exited a law firm

0.26

N 2,329 2,334

2,810

136 University of Michigan Journal of Law Reform [Vol. 55:1

Table A2. Results of the Logistic Regression Models, Odds Ratios

173

Model 1

Law Firm Exit

Model 2

Fired from

Law Firms

Model 3

Equity

Partnership

African

American

1.30

2.53

***

0.63

Latinx 0.94 1.12 0.80

Asian 1.06 1.55 0.78

Female 1.36

***

1.49

0.74

Married 0.84

0.59

1.24

1 Child 0.91 1.18 1.31

2 Children 0.87 0.94 1.54

3+ Children 0.80 0.78 1.83

Law School

GPA<2.99

0.99 1.52 0.88

Law School

GPA 3.00-3.24

0.94 1.25 0.93

Law School

GPA 3.25-3.49

1.05 1.28 0.87

Law School

GPA 3.50-3.74

1.18 1.56 0.89

Law School

GPA Missing

0.78 1.00 0.90

LSAT 0-50 Percentile 0.78

0.63 0.97

LSAT 50-75 Percentile 0.76

0.88 1.06

LSAT Missing 0.76

0.53 0.79

Law School

Rank 11-20

0.88 1.64 1.00

Law School

Rank 21-50

0.80

1.56 1.14

Law School

Rank 51-100

0.76

1.38 1.15

173. The reference categories are white, male, childless, not married, law school GPA 3.75-4.00,

LSAT 75-100 percentile, graduated from a top-10 law school, unperceived discrimination, and no

desire to leave employer within a year. All models control for year, and 2003 is the reference group.

The data are from the three Waves of the AJD. Sample: Lawyers who worked in a law firm.

# p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

FALL 2021] Black Lawyers Matter 137

Table A2. Continued

Law School

Rank 101-137

0.67

2.00 0.94

Law School

Rank <137

0.71

1.80 1.03

Law School

Rank Missing

0.50

0.72 1.35

Perceived

Discrimination

1.00 1.35 1.17

Overall Dissatisfied

with Advancement

Opportunities

0.98 1.13 0.71

Job Satisfaction

Missing

0.83 0.37

0.83

Joins Partner for Meals 0.82 0.74 1.31

Joins Partner for Meals

Missing

0.83 0.75 0.90

Plans to Leave

Employer Within a

Year

1.43

1.02 0.44

***

Desire to Leave

Missing

1.57

3.84

***

0.71

Ever Worked Part-

Time

1.08 1.91

0.28

***

Ever Exited the Labor

Force

0.69

Ever Exited a Law Firm 0.32

***

Constant 0.19

***

0.01

***

0.01

***

Pseudo R

0.03 0.05 0.10

Observations 2,329 2,334 2,810

BIC 6810.35 1719.77 3971.70