Discrimination as Anti-ethical: Achieving Systemic Change in Large Law Firms

Abstract

As protests calling for racial justice erupted across the country in 2020, many large law firms issued statements acknowledging systemic inequities and bias. They had previously expressed their commitment to diversity, equity, and inclusion. Some had launched well-publicized diversity initiatives. Still, break-through progress has been elusive. Women, and women of color, continue to be severely underrepresented in partnership ranks. The gender pay gap at law firms persists. An unrelenting pattern of heavy burden in the lived experiences of women and women of color at law firms continues. Large law firms, on their own, have not been sufficiently incentivized to dismantle systemic discrimination and bias. And yet, they are allowed and trusted to proceed with barely any ethical oversight on issues of discrimination and bias in pay and promotion in a self-regulated profession. Sustained, pervasive change is needed. This Article takes leaders of large law firms at their word. It extends an invitation to advocate for state supreme courts, state bars, the American Bar Association, and state legislatures to move quickly to implement a new framework and bring about an ethical reset to eliminate systemic bias and discrimination in large law firms. With the gender pay gap in law firm partnership compensation as a vehicle, this Article explains precisely how the design of the rules of professional conduct renders them largely symbolic on discrimination and ineffective against longstanding systemic barriers. It proposes a framework requiring (1) transparency of process and pay; (2) regular self-assessment addressing milestones; and (3) a financial incentive for compliance. The framework can be used as a springboard to address other consequences of systemic discrimination in law firms, like the abysmal underrepresentation of women of color in law firm partnership ranks.