How Big Law fumbled its own Rooney rule on diversity

The gridiron and the courtroom are very different fields of contest, but the National Football League and Big Law do have something in common: Both came up with a similar voluntary approach to open up more leadership positions to people of color and women, and they both have little to show for it.

It’s effectively the NFL’s two-decade-old Rooney rule: a requirement that nonwhite candidates be considered when teams hire for coaching and front-office jobs. 

Law firms followed professional football in 2017 with its version of the Rooney rule, called the Mansfield rule. Named after Arabella Mansfield, the first woman admitted to the legal profession in the United States in 1869, the rule requires that 30% of law-firm candidates be women, lawyers of color, or lawyers from other historically underrepresented groups when leadership roles are being filled. 

Both rules have had fits and starts of progress, but the numbers of higher-ranking minorities remain stuck in the low single digits in both football and in the law. A growing chorus of critics are now slamming these efforts as fig leaves for systemic racism.

The Mansfield rule “hasn’t really performed because [most] associates in the legal industry are Caucasian,” said Bryan Parker, the CEO of the legal-services provider Legal Innovators, which promotes diversity and inclusion in recruitment, hiring, and mentoring in law firms and corporate legal offices.

The NFL’s rule, meanwhile, is being challenged by the former Miami Dolphins head coach Brian Flores, who in a lawsuit filed last February contends it is a sham. Flores brought the lawsuit after a congratulatory text revealed that he was passed over for the New York Giants head coach job before he was even interviewed. Flores’ lawsuit, which was joined by two longtime Black NFL coaches, Steve Wilks and Ray Horton, is winding its way through the federal court system. The NFL staunchly denies the bias claims and is hoping to send the dispute into arbitration.

Law firms, like NFL teams, are largely owned and managed by tiny circles of older white men, even after dozens of the largest and most lucrative firms embraced the Mansfield rule five years ago.

Industry-wide data from the American Bar Association and the National Association for Law Placement show that only around 10% of equity partners — meaning they receive ownership profits from firm earnings and have a say in management — are people of color. The 2021 American Bar Association Model Diversity Survey found that Black lawyers accounted for only about 2% of partnerships in 2020, the latest data available. Other surveys show similar results.

Law firms have been reluctant to criticize use of the Mansfield rule. But in recent months, a half-dozen of the biggest firms — including the legal behemoth Kirkland & Ellis, the legendary firm Cravath, Swaine & Moore, and the litigation powerhouse Quinn Emanuel — did not take part in the fifth year of the program. Those firms did not respond to written questions about stepping back from the Mansfield program, administered by the incubator Diversity Lab.

“Only 2% of large firms dropped out of the certification process from last year to this year,” Caren Ulrich Stacy, Diversity Lab’s CEO, said. She attributed the decrease to “more challenging certification requirements” that require more tracking and documenting of candidates and promotions.

Some law firms say they would rather conduct their own diversity and inclusion efforts and not pay to participate in the Mansfield process and be publicly graded on their success — or lack of it.  Since firms are mostly private partnerships, they have no obligation to post financial or personnel information publicly. And the Mansfield process can be time-consuming and expensive because it includes administering a new human-resources process and then reporting on how it worked.

Given the lack of diversity in both fields, some question whether “a soft affirmative-action rule” can work any better in the legal world than it does in professional sports.

Benjamin Wilson, one of the first Black law-firm partners and the head of the Diverse Lawyers Network, said in an interview that “many don’t think Mansfield goes far enough.” Wilson said it needs to include origination, or credit for client work, and a fair allocation of work.

One minority female lawyer, who asked to remain anonymous, left a big law firm for a more congenial job in a company.

“When I looked around at my firm, there were almost no lawyers of color,” she said. “You knew you weren’t going to get the prize assignments. It was discouraging and isolating.”

Wilson,  who recently retired as chairman of the DC law firm Beveridge & Diamond, said: “The real challenge is not hiring, but advancement, and that means getting meaningful work.” 

Law firms need to hold themselves accountable by adding promotion of diversity as one of the criteria for getting an annual bonus, added Wilson, who is also the founder of the African American Managing Partners Network and the African American General Counsel Network,

“It’s both using the stick and the carrot in law, and in the league,” he said. “It’s all about the will to get it done and be more creative about where they recruit, and adding incentives for lawyers to get credit for originating client business. Right now, it’s taboo to talk about how the pie is shared.”

A 2021 Harvard study compared firms that adopted the Mansfield rule with law firms that did not in several areas, including demographics, recruitment, promotion, and leadership, and concluded that adopting the Mansfield process had “no significant impact” on law-firm diversity, according to the study author Paola Cecchi-Dimeglio, who works at the Harvard Law School Center on the Legal Profession and the Harvard Kennedy School’s women and public-policy program.

After examining the Harvard study and its own data, the Minority Corporate Counsel Association, which promotes diversity in law firms and corporate legal counsel offices, concluded “the Mansfield rule certification does not have a direct or noticeable impact on improving diversity,” Jean Lee, its president and CEO, said. MCCA, most of whose 250 law-firm members are among the country’s largest firms, has a yearly diversity scorecard and annually names a firm with the best diversity record. For 2022, it named the Palo Alto-based firm Cooley, a tech-oriented law firm with more than 700 lawyers.

“There are an equal number of top-performing firms who have and never have been Mansfield-rule certified,” Lee said in an interview. If asked by corporate counsel whether they should hire a Mansfield-certified law firm to handle outside legal matters (such as trials or investigations), she said, “My answer would be to look beyond the certification, as it is not determinative of a firm’s efforts or progress.”

Defending the Mansfield process, the Diversity Lab’s Stacy noted that it has been in effect for only a few years. Mansfield stems from a 2016 session at Stanford Law School to come up with ideas about boosting law-firm diversity and inclusion. 

“We thought, why not apply that rule?” said Mark Helm, a retired law-firm partner who led a team of lawyers brainstorming ideas that would move the needle on the numbers of diverse lawyers at law firms. He wasn’t convinced but decided to float the idea anyway.

“I thought it might seem trendy and gimmicky but it was kind of a ‘Shark Tank’ atmosphere, and we were in it to win it,” Helm said. The idea took off, but some groups are increasingly complaining that voluntary efforts are simply a cover for failed efforts to do more innovative work to diversify law-firm ranks.

Critics also level similar complaints against football’s diversity efforts, which have earned poorer reports from the Institute for Diversity and Ethics in Sports than other pro sports. Last year, it gave the NFL a B+ for racial hiring and C+ for gender hiring, even taking into account efforts in recent years to add minority interviews to more job categories. The league racked up scores lower than the National Basketball Association’s A+ for racial hiring practices and B+ for general hiring.

“Pro sports could do better,” said the institute president Richard Lapchick, a professor at the University of Central Florida’s business college who helped bring about the Rooney rule, which is named after the late Pittsburgh Steelers owner Dan Rooney, who was chair of the league’s diversity committee. While Lapchick supports pressure on teams to make good on their diversity commitments, he noted “there was pushback two years ago with a proposal to strengthen the rules.”

Football’s lack of diversity grabbed the spotlight two decades ago when two of the three Black coaches were fired after the 2001 season. In the NFL’s 80-year history, there had only been six Black head coaches, a skimpy record that the former Cleveland Browns guard John Wooten and the late defense lawyer Johnnie Cochran Jr. decided to do something about.

“We told them that any person who is dismissed from his job will file the toughest, most notable lawsuit the league would ever see, and take it to the highest court,” Wooten, 86, who’s retired and living in Texas, said in an interview.

Wooten and others backed a 2002 study called “Black Coaches in the NFL: Superior Performance, Inferior Opportunities,” and threatened to sue if the league didn’t make changes. In 2003, the league agreed that at least one minority would be interviewed for each head-coach opening. At first, the Rooney rule seemed to catch on when teams started to hire more coaches of color and a dozen general managers of color when that position was added to the Rooney rule.

Wooten, who recently stepped down from the Fritz Pollard Alliance Foundation, which pushes for minorities to get fair consideration for senior NFL jobs, said the league should not abandon the Rooney rule but is less hopeful about the commitment needed to ensure the rule works as intended.

“For the Rooney rule to work,” he said, “there has to be a true commitment from the owners. If they don’t do what they are committed to do, there should be a harsh penalty, not a $5 or $10 million fine.”

The core question, he said, is: “Who is going to step up and replace Dan Rooney’s moral commitment?”