On the 16th February, the American Bar Association Commission on Racial and Ethnic Diversity in the Profession today released its 2020 ABA Model Diversity Survey Report, the first report focused on diversity, equity and inclusion within law firm practices in the USA.
The Model Diversity Survey (MDS), was developed in 2016, and is designed to give clients the tools to review and assess diversity, equity and inclusion of the legal service providers and to make decisions regarding hiring and retention. It assesses firm policies, practices and outcomes regarding hiring, attrition, promotion, leadership, work schedules and compensation. The MDS Report includes 2017-19 data from more than 370 law firms.
Some of the findings of the survey were that:
- Firm leadership was overwhelmingly made up of white men relative to white women and racial, LGBTQ+ and disabled minorities of any gender identity.
- Hires and promotions/attrition suggest that representation of minority groups is growing at the bottom levels of associates but is declining at the higher levels of non-equity and equity partners.
- Attrition rates were substantially larger for nonwhite attorneys (e.g., nearly three times larger for African American/Black and Hispanic/Latino attorneys) relative to white attorneys.
- The percentage of white associates promoted to equity partner was slightly higher than the percentage of white associates promoted to non-equity partner. This pattern was reversed for female associates, and the associates of all other racial minority groups which displayed larger percentages promoted to non-equity partner than to equity partner.
- Minority males and females consistently ranged between 0% to 2% of the top 10% highest-paid attorneys in law firms.
The full report can be viewed here.
The National Conference of Bar Examiners (NCBE) testing taskforce has released preliminary recommendations as to what it feels that the next generation of bar examinations should look like. As part of its examination process, the NCBE is committed to periodic content review and design, in order to ensure high-quality licensing and examinations. The recommendations are a culmination of a 3-year study which included stakeholder interviews, and ongoing market analysis, in order to ensure lawyer competencies were being tested and were adequate for an evolving legal profession.
Based on their extensive research, the Task Force has made some high-level decisions about the content and the design for the next generation of the bar examination. Those decisions are founded on the principle that the purpose of the bar exam is designed “to protect the public by helping to ensure that those who are newly licensed possess the minimum knowledge and skills to perform activities typically required of an entry-level lawyer.”
The preliminary recommendations specify the use of an integrated examination that measures both knowledge and skills through a mix of item formats. The exam will be offered two times per year as a summative event and delivered by computer. Compensatory scoring will be used to produce a single combined score for making admission decisions.
On the 16th December 2020 the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility released a formal opinion to help lawyers to better understand the application of model rules to lawyers practising remotely, this is particularly for those working from jurisdictions in which they are not licensed.
Formal Opinion 495 provides guidance when a lawyer may practice the law for which they are licensed while physically in a different jurisdiction. The guidance has stated that if a lawyer is physically present in a jurisdiction in which they are not licensed to practice — and the local jurisdiction has not determined such practice is unauthorized – the lawyer may practice if they meet the following guidelines:
- They do not establish an office or other systematic presence in that local jurisdiction.
They do not “hold out” a presence or availability to perform legal services in that local jurisdiction.
They do not actually provide legal services for matters in that local jurisdiction.
The opinion notes that providing local contact information on websites, letterhead, business cards or advertising are examples of communications that would improperly suggest a local office or local presence.
Read the full guidance here.
February 10-12, 2021
A new study conducted by the Young Lawyers Division of the American Bar Association has revealed substantial and widespread levels of student debt and demonstrated a harmful effect on junior members of the profession in the US.
The survey has found that:
- Over 75% of respondents had at least $100,000 in student loans at graduation
- Over 50% had more than $150,000 in student loans
- Over 25% had $200,000 or more in student loans
More than 1,000 newer lawyers and recent law school graduates completed the survey, which was conducted March 1-31, 2020.
The survey data reveal six key themes:
- Nearly all law school graduates are impacted by student loan debt, with only a few exceptions
- For many students, their debt continues to grow after graduation
- Student loans deeply impact the personal lives and decisions of new lawyers
- Student loans force lawyers to take unwanted career paths
- Student loans take a disproportionate toll on lawyers from minority backgrounds
- Student loans are negatively affecting mental health
The report has suggested that more must be done around the issue of law student debt, in order to encourage a healthy and diverse profession. The report makes suggestions including giving students advice on how to manage debt, both financially and mentally, as well as exploring alternative financing models for law schools.
Read the full report and the survey published by the ABA.
Utah has become the first state in the US to allow non-lawyer ownership of legal services providers. This month the State Supreme Court unanimously voted in favour of approving a 2-year sandbox programme which would licence new forms of legal services ownership.
The move has come about in the face of continued concerns over access to justice, particularly in the face of the ongoing COVID-19 pandemic. The courts have cited the reasoning that regulation should focus primarily on serving the consumer, and acting in their best interests, with Utah Supreme Court Justice Deno Himonas saying “changes will enable individuals and entities to explore creative ways to safely allow lawyers and non-lawyers to practise law and to reduce constraints on how lawyers market and promote services. New forms of providers could include partnerships, corporations and companies and non-profit organisations partnering with other entities to offer legal services.”
Whilst the Utah profession is comparatively small, with 26 lawyers per 10,000 residents compared with 92 in New York and 43 in California, the result of the sandbox will be closely watched by other state bars, particularly in the light of similar moves being discussed in California, and calls by the ABA for other states to follow suit.
Read more about the decision or view the standing order.
While the number of lawyers nationally has grown faster than the U.S. population, this growth hasn’t been spread evenly across races and ethnicities, according to the American Bar Association’s 2020 Profile of the Legal Profession. (PDF)
The ABA Profile of the Legal Profession is a compilation of the latest statistics in the legal profession. In an article published on 2CIVILITY (Illinois Supreme Court Commission on Professionalism) they discuss diversity in the legal profession and attitudes toward efforts to address attorney well-being.
Read the article
A study carried out by the ABA in collaboration with the Burton Blatt Institute at Syracuse University has found that lawyers who either identify as having disabilities or who identify as LGBTQ+ commonly report experiencing both subtle and overt forms of discrimination at their workplaces.
The study surveyed 3,590 lawyers, including individuals from every state and the District of Columbia, and was conducted over the course of 2018 to 2019. The study examines individuals with multiple identities that intersect, such as people of differing sexual orientations and gender identities who also have disabilities.
ABA President Judy Perry Martinez has said that the“study is an important first step in working towards a more inclusive and better legal profession by identifying bias and stigmas against LGBTQ+ lawyers as well as lawyers with disabilities. The ABA remains committed to its core goal of eliminating bias and enhancing diversity. Discrimination against people with disabilities and LGBTQ+ individuals, whether structural or unintentional, needs to be eradicated.”
Among the key findings of the study were:
4 of 10 respondents reported perceptions or experiences of subtle but unintentional biases. 1 in 5 respondents noted the experience of subtle and intentional biases.
Approximately 16.6% of the lawyers responding identified as lesbian, gay or bisexual, and 0.4% identified their sexual orientation as open. Of 67 lawyers who were women and identified as LGB with a health condition, slightly more than half reported they had experienced discrimination in their workplaces.
Read the full ABA report.
On the 15th July, the American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance that expands on a model rule that covers a lawyer’s conduct related to harassment and discrimination.
ABA Formal Ethics Opinion 493 outlines how ABA Model Rule of Professional Conduct 8.4(g) addresses actions by a lawyer beyond the courtroom and the context of client representation. This could include operating an office or behaviour at bar association or other business and social events when they are related to the practice of law.
The rule makes it professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on various categories, including sex, race, religion, sexual orientation and gender identity. The rule is broader than federal anti-discrimination laws because it also covers conduct that is not severe or pervasive, a standard often utilized for employment discrimination.
The formal opinion notes that most free speech is protected, but the rule is violated by harmful conduct, which “will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.” It said the rule is “critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”
Read the formal opinion and the model rule, or read the ABA’s statement on the new guidance.