- An Economic Analysis of the Self-preferencing Debate
- Antitrust and Unfair Competition Law Section
- Big Stakes Antitrust Trial: In re Capacitors Antitrust Litigation
- Epic V. Apple: Amicus Brief of the State of California In Support of Neither Party
- Executive Committee
- Increasing Private Equity Investments In Healthcare Raise Antitrust and Unfair Business Practice Concerns
- Message From the Chair
- Message From the Editor
- Practical Challenges Confronting Merger Reviews of Labor Markets
- Table of Contents
- THE OTHER "QUICK LOOK"
- The Price of Free
- Diversity In the Antitrust Bar: Is It Truly a Pipeline Problem?
DIVERSITY IN THE ANTITRUST BAR: IS IT TRULY A PIPELINE PROBLEM?
Edited by Steve Vieux1
- Ye Eun (Charlotte) Chun, Cleary Gottlieb Steen & Hamilton LLP
- Qianwei Fu, Zelle LLP
- Jeff Negrette, U.S. Department of Justice, Antitrust Division
- Laura Wilkinson, Paypal
- Moderator: Steve Vieux, Bartko Zankel Bunzel & Miller, PC
I. INTRODUCTION & OVERVIEW
The issue of diversity in the legal profession is constantly discussed and remains a pressing area in need for improvement, especially within the antitrust bar. The main question that needs to be addressed candidly is whether our bar’s lack of diversity can best be described as a "pipeline" issue or an issue of will. This panel at GSI is noted not only for its demographic diversity, but diversity in practice and professional background. It included recognized practitioners from the private law firm sector (both defense and plaintiffs’ side), the corporate sector, and government. They offered their honest thoughts on whether the diversity issue in our bar is truly a "pipeline" issue, how to improve diversity and inclusivity in the antitrust bar, what impediments exist to improving diversity, and what incentives can be used to encourage diversity and inclusivity.
* * *
MR. GOLDSTEIN: I’m David Goldstein, and I’m the Chair of this Section.
So I have a really easy job today to introduce Steve Vieux, the moderator of this program. He is so well-known to this group, a member of the Executive Committee of the Antitrust and Unfair Competition Law Section; he is also Senior Counsel at Bartko Zankel Bunzel & Miller. Steve previously served as a Senior Attorney at the Federal Trade Commission, where he worked primarily in investigations in the health care and pharma industries.
So thanks so much, Steve, for moderating this terrific panel on diversity.
MR. VIEUX: Thanks, David. First I just want to welcome everyone joining us this afternoon for this important discussion. It seems like a discussion we’re continually having every year, but it’s a discussion we have to have, to not only talk about ways to improve the diversity of not only in the bar in general, but specifically in the antitrust and unfair competition bar. And as you know, you guys that are in the
practice, you know diversity in our practice area is not that great compared to other practice areas.
Joining me today—we have a great panel, a great panel that’s not only diverse in terms of demographics, but also diverse in terms of their practice.
We have panelists that represent each sector of our antitrust bar, and when I say "sector," I’m talking about whether it’s private practice, from the corporate defense perspective, from the plaintiffs’ perspective, or from government, and we also have somebody from in-house from the corporate legal department realm who can offer their insights on diversity in that sector as well.
Our panel is going to discuss diversity, the issues of diversity, whether it’s the issue with the pipeline or is it more an issue of will.
We’ll also discuss what the data says and what we can do to improve diversity.
And finally, we hope to end it with a call to action because you guys are all stakeholders and many of you, whether you’re junior, midlevel, or senior, have a role in improving diversity, improving the metrics in our profession and in our bar.
Let me just introduce my distinguished panelists. First I’ll start off with the gentleman to the left of me, Jeff Negrette. He’s an attorney at the DOJ’s Antitrust Division, a leading attorney in their civil conduct task force in Washington, D.C. He’s also a co-chair of the Division’s diversity committee.
Followed by that is Charlotte Chun. She’s a rising associate at Cleary Gottlieb’s Bay Area office, where she specializes in antitrust criminal investigations and civil enforcement. She’s also a member of Cleary’s women’s working group leadership committee and the woman’s lawyers advisory committee.
And then further down is my old friend from D.C., Laura Wilkinson. She’s a Senior Director and Associate General Counsel for Global Antitrust at PayPal. Before PayPal she was an antitrust partner at Weil, Gotshal and before that Clifford Chance, and that followed an impressive stint where I first met her at the FTC, where she rose through the ranks, eventually serving as a Deputy Assistant Director in the Bureau of Competition.
And then Qianwei Fu, who is the former Chairperson of our Section. She focuses on representing plaintiffs in antitrust litigation, and is a well-respected member of the plaintiffs’ bar here in San Francisco. In addition to antitrust, Qianwei specializes in complex commercial litigation and insurance class defense.
Now first, before we go into the substance of this discussion, I’m sure each of you guys have your own disclaimers to give. I just have to say this—any statements from myself or our panelists do not necessarily reflect the views of our employers or our clients.
And I’d first like to give you an insight as to how this is going to go. I’m just going to throw out questions for our panelists and we’re not breaking it up in terms of responsibility between each panelist.
Everybody’s going to give their thoughts on these important topics and important issues as it relates to diversity and improving the pipeline and actual diversity in our bar.
II. PERSONAL CAREER INSIGHTS INTO DIVERSITY
First, if everybody can just give a brief background on how they rose to their current position, how they got there, what obstacles they faced, and specifically if they can also talk about the importance of mentors, vis-à-vis sponsors. To kick that off I’ll turn it over to Laura first.
MS. WILKINSON: Good afternoon. Thank you, Steve, for that introduction and I think you gave away part of my story already as you introduced me.
I am currently Senior Director and Associate General Counsel at PayPal, responsible for Global Antitrust, and I started that position in the middle of 2019.
Prior to that, my antitrust practice, my legal practice, has all been in the Washington, D.C. area. I began at the Federal Trade Commission in the Bureau of Competition in Mergers I, and so I’ve been working in primarily merger clearance for most of my career. I was at Mergers I and rose to Deputy Assistant Director, so I was there for ten years through the late ’80s to the mid ’90s. Giving away my age a bit, but it does show that I’ve seen quite a progression in terms of diversity within the bar in general and the antitrust bar.
After the Federal Trade Commission I went to private practice first at Clifford Chance, where I became a partner and then later I was a partner at Weil, Gotshal.
I was in private practice for almost 20 years, representing clients in lots of different industries, and gained a lot of experience in analyzing industries and counseling as well.
I made the switch to in-house in order to be closer to the business, but also to get a different perspective on practicing antitrust law. In this role I bring the experience of the government enforcement, as well as the counseling and private practice. I’ve done a little bit of antitrust litigation but primarily mergers and acquisitions and regulatory, and so that’s been my path.
In terms of mentors, I’ve certainly had mentors along the way, and the one thing I do want to say is mentors don’t have to look like you. My mentors, particularly since I started in the mid ’80s, were not African-American women, as you can imagine. It was definitely either white men or white women, and I think that that’s perfectly fine. You can gain a lot of experience and exposure and knowledge through mentors that are not like you, don’t have the same characteristics, but you will find that you may have a lot in common in a lot of other ways.
I also think that it is important to have role models, and so those of us who are diverse attorneys probably have more of a light shining on us as a role model in the legal profession as well as in the antitrust bar, and I think that’s important as well—but we can’t look to the diverse attorneys to be the only role models, to be the only mentors or the only sponsors for attorneys through their career.
So with that as an intro, I’ll pass it on to the other panelists, and I’m sure we’re going to dive in more as we go through the questions.
MR. VIEUX: If we could, Charlotte, you’re probably the most junior person here but if you could just talk about how you arrived at this current place, and also specifically what obstacles you’re facing now as a woman of color.
MS. CHUN: Yeah, sounds good.
So I was formerly in Cleary’s New York office and then moved out here back to the Bay Area very recently as we opened up our California office. I used to practice a little bit more in the civil enforcement and white collar investigation space. As we came out here to California, we were transitioned more into antitrust work, and as someone who’s received mentorship, maybe I could add a little value as to what good mentorship feels like as an associate rising up the ranks.
More than anything for me, it’s about feeling valued. It’s not just a participatory act of having mentoring circles or having monthly check-ins. Those are all valuable opportunities but the biggest part is for senior lawyers to really get to know the associate, to understand what their value added is, to understand their background, how they got there; and then to be able to convert that into something that is very meaningful capital, you know, for the firm, for the community, and just make sure that there are opportunities that are provided for them in ways that they may not be able to do so themselves. A lot of diverse associates don’t have the same networks that nondiverse associates have, and having that kind of mentorship and sponsorship is just really
critical and it’s—you know, having great mentors is partly why I’m here today and it’s just something that I hope to be able to also pass on as more junior associates join ranks below me as well.
MR. VIEUX: Thanks. Qianwei?
MS. FU: Sure. So as Steve introduced me already, I’m a partner at Zelle LLP. My main practice is focused on plaintiffs’ class actions, and I’m just loving being on this panel with all these distinguished speakers and quite impressed by their backgrounds.
And so I, you know, speaking of my background, I did not follow a linear career path. I practiced law in China for three years before I moved to the States. When I was younger, I just had this curiosity, always wanting to explore places unfamiliar to me or meeting people who are nothing like me.
So, you know, there is this classic Chinese novel written by a renowned scholar, Qian Zhongshu, in the 1940s, and the name of the book is Fortress Besieged.
The story is set in the background of a war but the story is really about the behaviors and the pathos of that special period of the country. The name of the book, Fortress Besieged, is actually a metaphor from a French proverb, and it goes like this: "Marriage is like a fortress besieged." Those who are outside want to get in, and those who are inside want to get out.
Later people extended this metaphor to other situations to describe this constant desire, always wanting something you don’t have access to.
So I was in that restless stage, just wanted to get outside the fortress and to see the outside world.
At the time, you know, I had two options. One was to continue to practice law; I needed a law degree in a different legal system but I couldn’t afford law school right out of the gate. The other option was to find another area related to law enforcement. So I landed in a criminology major because I, at the time, had an interest in the subject and I was offered a full scholarship with donations, to pass the criminology program.
After graduating I couldn’t find a job. I couldn’t do a law enforcement job because I was not a U.S. citizen at the time, and I couldn’t practice law either because I mainly practiced in a civil law system.
So I had to start all over again. I went to law school, I got my JD degree and I eventually landed with a job at my current law firm. I’m a lifer at my firm. I’ve stayed with my firm for 15, 16 years as of now.
So, you know, I do think this mixed background shaped my way of thinking, my approach to a lot of things; how I treat others, how I honor other people’s experiences and consider different perspectives. I really have the honor to be in this practice and I am constantly, constantly inspired by the quality, the energy, and the collegiality of the antitrust lawyers and the antitrust bar.
Speaking of mentorship, if I have to be honest, with no social network to begin with, I’ve had a lot of struggles along the way. When I was in law school, I always felt like, you know, I had to figure things out on my own. Few mentors, few professors looked like me or shared similar experiences. They don’t have the same experiences as me and there was no support network in law school to provide opportunities for students like me.
So, you know, when you are one of the few minority women in the room, oftentimes that’s not a safe place for you to speak up, for you to ask questions or ask for help.
I know some of my peers, they have generations of lawyers in their family or in their social circles, who acted as a guide or provided something more for their critical career decisions. I think, in a way, that short-circuited the process.
I think I can relate to those who have aspirations, you know, those law students who have aspirations to become antitrust lawyers but do not have the social capital or guidance they need.
So I can certainly see having the mentorship, having the right social capital can help young lawyers break into this practice area.
And I want to say one more thing—just one more thing, you know, the concept of you don’t know what you don’t know, I think that really reiterates and highlights the importance of network and mentorship.
MR. VIEUX: Thank you, Qianwei. I think that makes a good point especially about the point of networking—and to make a pitch for our Section, especially for younger attorneys, for diverse attorneys out there, this is a great opportunity to meet various folks who can help you along in your career, especially if you don’t come out of the gate privileged with a lot of that social capital.
Jeff, if we can turn it over to you, in terms of your background and how you got to where you are now.
MR. NEGRETTE: Thank you, Steve, and I will offer up the as-promised obligatory disclaimer that my comments today are mine alone and don’t necessarily reflect those of the Department of Justice.
I started my career with the Antitrust Division right here actually in San Francisco at our field office and was only there, though, for a short while before transferring to D.C. I joined our technology and digital platforms group there and worked there for a while, and then transitioned to our appellate section and then most recently, as Steve mentioned, joined our newly formed Civil Conduct Task Force and I’ve been there since.
I’m also a reservist in the military, so it’s definitely been a challenge, I would say, juggling two careers, serving that entire time. Multiple deployments, training exercises, definitely can create some tension with the day-to-day rigor of practicing antitrust law.
I think the importance of serving warrants the effort and so I’ve been happy to serve in those two roles.
I think we heard some great comments today about mentorship and I think all that’s very important. I’d say where I see a helpful way to contribute in a mentorship capacity is actually at the organization level.
So, you know, we normally think about mentorship in a one-to-one, person-to-person type relationship. That can certainly be very gratifying, but to make the really substantial impacts, sometimes that mentorship actually needs to occur at the organization level.
So I’ve really been focusing a lot of energy on trying to make those changes and initiatives happen organization-wide. It can be slower progress, but certainly very impactful.
MR. VIEUX: Thank you. I don’t want to put you on the spot and ask you a follow-up question to surprise you but, yes, if you can speak to that, because we’re going to discuss this later on in the program, I do think that enforcement agencies have an important role to play in this issue.
But are there any specific initiatives in the DOJ Antitrust Division, in terms of cultivating diverse attorneys? I’ve heard that my old agency, the FTC, they’re engaging in some initiatives such as mentorship programs. So is there anything you can shed light on?
MR. NEGRETTE: Sure. We have a lot of stuff going on behind the scenes, of course, but publicly we do have a diversity committee and it’s grown in size, in scope, and I think we’ve accomplished a lot.
I’m very proud of some of the results we’ve delivered, but there’s still a lot of work to do. It’s great having the support, though, of leadership and being able to see the changes, the impacts that those initiatives are happening.
I think as an enforcement agency we may take on some additional responsibility—or at least I feel it does in the broader antitrust bar—and some of that’s just because as an enforcement agency, right, we
represent the American public and the perspectives of the American public and so we should probably have those perspectives firsthand on staff to ensure we are representing those perspectives. So I think that’s a unique responsibility that the enforcement agencies carry.
I would also say that the enforcement agencies are looked at by the rest of the antitrust bar as a bit of a guidepost for what they should be doing. Certainly on substantive matters we are looked at for interpretations of the law, and it really isn’t any different in terms of how we should be focused on personnel matters.
So there’s probably some extra responsibility there to provide some guidance to the rest of the bar.
And I guess lastly I would say that we talked a little bit about the pipeline and in some ways the enforcement agencies are part of that pipeline. We certainly provide new attorneys with significant training opportunities. That’s one of the reasons why we are able to attract them—it certainly isn’t our starting salaries. And so because of that, as part of the pipeline, you know, if we are able to bring in a diverse group of new hires, they’re going to graduate out into the other sectors and help them with their representation.
III. IS IT TRULY A PIPELINE PROBLEM?
MR. VIEUX: And then also if we could talk about, get to the meat of the program too, what could be done in terms improving diversity in our antitrust bar?
And Qianwei, I’ll start with you. Is it truly a pipeline problem? We always hear—you know, and I don’t want to be negative about it—but sometimes the excuse is, well, the pipeline is just not there. Is it really truly a pipeline problem or do you see it more as an issue of will? And we’ll start with Qianwei.
MS. FU: Well, Steve, as you know, when we were doing the prep session and I questioned this topic, I said this is such a daunting topic to unpack.
I think the answer really depends. And in the slides we provided some data and the data is based on the state bar 2019 attorney census, and I think the data reveals three observations.
One is despite the significant growth in the proportion of attorneys who are women and who are people of color in the past 30 years, the California attorney population does not represent the state’s diversity, with Latinos being particularly underrepresented.
And the second point is that women of color are underrepresented among leadership positions in all legal employment settings, with Asian women particularly being underrepresented.
And the third observation is that women, people of color, LGBTQIA, and people with disabilities consistently report low-level satisfaction with workplace experiences.
I think the pipeline in general is strong for women, just in general. I think we really need to look at the bias that’s baked into our organizations that serve as obstacles for women attorneys to grow and thrive.
The pipeline for people of color, I think is getting stronger. We saw rapid growth in the number of Asian attorneys since the 1990s, although that growth has since levelled off.
And as I mentioned, Asian women are underrepresented in leadership positions.
Latinos and Black attorneys are underrepresented in all legal employment sectors.
So if we do nothing, those groups will be left behind.
And, you know, I have to say this because we discussed this during the prep session. I think the demographic disparity is rooted in the educational system.
You know, it starts early and runs deep but I think the problem is compounded by the legal profession’s approach to recruitment and retention.
I know it’s intuitive for leaders with DEI work to start with the hiring pipeline, you know, how to get more people with X background in the room, right?
But one of the gaps we often have to wrestle with is history, because certain minority groups aren’t just underrepresented, they are also intentionally excluded and historically marginalized.
So I think taking a closer look at the racial history and really trying to understand the social, historical, and political barriers that have exclued people from the legal profession is equally important.
A diverse place is not necessarily an inclusive workplace and, you know, an analogy I like to use is our neighbors have this great tradition to host new year holiday parties each year and they all come from different ethnic and cultural backgrounds, so we get to enjoy a great selection of a variety of foods.
But my husband has certain food allergies. He’s also a picky eater. My neighbors always ensure there is food that he can eat at the party so he can enjoy a good meal and he can enjoy the parties too. That’s inclusion.
You know, diversity is a numbers game but inclusion is about impact.
MR. VIEUX: That’s a good point, actually, diversity versus inclusion too. We’ll talk about this a little bit later and it’s something I’ve noticed too in the defense bar. Yes, you can have something that looked diverse, but without people really being included. That plays a role in retention and whether five, six years down the line of recruitment of when these folks entered the profession, whether they’re still there at that same place of work, and that’s an issue we see certainly in private practice.
And I even noticed it too, I have to say, even in government. I can speak freely now, since I’m no longer an employee of the government.
MS. FU: I also think that it’s a leaky pipeline. We’re looking at a leaky pipeline.
MR. VIEUX: Yeah. Oh, yeah.
MS. FU: The pipeline is leaky starting from elementary school all the way to the end of college and the pool of prospective minority students is already small in number, compared to the groups that are going to law school in larger numbers.
And then we have the retention problem. The pipeline gains aren’t reaching to the top, right?
Again, we’re fighting a war for talent in the post-pandemic era and if minority lawyers do not feel they’re included, do not see a career path at the firm, do not feel they are offered opportunities to grow, they will leave.
MR. VIEUX: Yeah. The "great resignation."
IV. WHAT CAN BE DONE TO IMPROVE DIVERSITY?
MR. VIEUX: I mean on that point, too, in terms of a leaky pipeline, what can diverse attorneys do themselves? I mean, I’m a big believer that, look, you worry about what you can control, yes. Advocate, agitate, you know, for other folks to do the right thing but in this environment, what can women, diverse attorneys, in terms of disabilities—and even veterans too, because that’s an issue with veterans too, in terms of discrimination against them or just not getting opportunities because folks think they’re not as available—what can they do to improve their careers, protect their careers?
You know, one of the things I thought as a former FTCer and I think something that helped me, is I probably wouldn’t be an antitrust lawyer if I didn’t start my career at the agency, at the FTC. Although it wasn’t perfect, I think there were a lot of opportunities I got early on, you know, trial opportunities, leadership opportunities, that I probably wouldn’t have gotten if I went straight to a firm.
So that was one idea I had are pursuing those opportunities, but are there any things you can recommend to attorneys to make sure they stick through the pipeline?
I’d like to throw that to anybody, not necessarily Qianwei.
MS. FU: I have to give a pitch to our Section.
MR. VIEUX: Okay.
MS. FU: So we talk about the importance of mentorship and our Section, the Antitrust and Unfair Competition Law Section, has doubled down its DEI efforts in the past several years and really, you know, making sure we inject diversity components in our programs and activities and also create strategies and methods to further our diversity initiative goals.
One example is the creation of the D&I fellowship. The fellowship was incubated under our former Chair, Elizabeth Pritzker’s leadership—I see Elizabeth is in the audience—and so the fellowship, in addition to providing financial assistance, it also offers a summer internship with a state or federal antitrust agency, as well as a year-long mentorship.
Last year our fellow was fantastic, and we just selected this year’s D&I fellow. We truly thank the law firms and the corporate sponsors who have contributed their generous support to our fellowship, and for those who have not contributed, I strongly urge you to contribute to our fellowship.
But there are also other ways to help law students to break into this practice area and one example is our DEI committee. They have brought on presentations like, you know, pathways to antitrust to law students, with the goal to introduce law students to the different portals of antitrust practice.
And also I think they are currently developing learning modules to provide skill trainings to minority diverse lawyers or early career lawyers.
So if you cannot contribute financially, consider contributing in kind, and we always need volunteers for those programs. So those are just two examples what our Section has been doing.
And if you are a member of a group that has traditionally had more power, you have the opportunity to use that privilege to advocate for others.
I know the national conference of the Women’s Bar Association has put on what is called the Good Guys Program to encourage male allyship.
The program is designed to break the impasse in women’s advancement by including people who have long been missing from the conversation: the guys. They’ve been trying to involve good guys, trying to involve men in women’s issues and women’s organizations and inject event components based on studies showing the best way to engagement—like highlighting men that other men want to emulate and know, and providing implicit bias trainings in a straightforward and nonjudgmental way, and just showing good guys that diversity and inclusion are where the money is and telling them how they can contribute.
I think these are all helpful strategies to involve everybody.
So when we talk about diversity, what is diversity? You know, it’s not something somewhere in the book. It’s not like in this program we have to do, right? It’s everybody. It’s everybody’s effort. You know, even if you are a heterosexual white male, you have diversity. Everybody has diversity. I think, you know, the key here is really how to embrace everyone’s experience and to act upon it and to make sure everyone be seen and be heard and feel uninhibited to share their perspectives.
MR. VIEUX: Thank you, yeah. That’s a good point. Also to echo what Qianwei said too, I think for diverse attorneys getting involved in CLA, also other bar associations like the ABA Antitrust Section. I think you probably have to double up on those efforts compared to some of your colleagues.
But yeah, if I could turn to other members of the panel too, in terms of what they’ve done.
Laura, then Charlotte, you’re in the thick of it now as a young attorney too, in terms of what you’re doing but Laura, if you can talk.
MS. WILKINSON: Sure, I’ll jump in.
I’ll try to start with your pipeline versus will question, and tie it back together.
I think that it’s really both the pipeline issue and a will issue, but if we think about the pipeline, only as the very beginning—the education system and getting people into law school—I don’t think that’s enough.
I think that there are multiple pipelines, right?
There is that pipeline at the very early stages and we need to do more at that stage but there are pipelines through the law school process, making sure that people are—for antitrust, are exposed to antitrust and see it as a valuable area to practice in.
There are pipelines in each of the sectors, whether it’s government or law firm or in-house, being able to progress and what we need to do to make that pipeline move along so that people can get into leadership roles in any of those sectors, and that is the really the retention issue that we’ve started to talk about.
And I think that what we can do and bring it into why it’s also a will question is that we each have a role to play in helping to move those various pipelines along by, you know, stepping up and being a champion for diversity. Where you are, whatever your role is, you can do something towards that, whether that is acting as a mentor or just making sure that you don’t just let the status quo stay.
It is the easiest thing, in an in-house setting, to hire the antitrust chair of some large law firm. Look to who else is in the practice group. There may be someone with really direct expertise that you could reach out to and make sure they get credit for it, rather than just going to the chair of the department.
If it is in the law firm, can you make sure that everyone has a chance to work on the cases that are going to be visible, that will impact their career, that will help them gain visibility or prominence even within the firm.
Everybody has a role that they can play where they can help move their respective pipelines along. Bringing in an analogy, one that I recall from Verna Myers, who is a consultant or had been a consultant in legal diversity for many years and now I think is in-house at Netflix in the diversity space. She’s written several books coauthored with the ABA around diversity issues and one of the analogies she has is, diversity is being invited to the party and inclusion is being asked to dance. You can be there and standing against the wall—we’ve all been in junior high or high school parties where people are standing against the wall and no one’s asking them to dance.
They were invited to the party but they don’t feel included. That’s the analogy that we need to think about: how can we make people feel a part of the environment where they are, whether it’s a law firm, a company or a government agency?
MR. VIEUX: Charlotte?
MS. CHUN: This is super exciting because usually I have to like grasp my colleagues at happy hour to talk about DEI, and I’m sure that’s not everyone’s idea of a fun Friday evening.
One of the things that we hear a lot about in Big Law is our huge diversity issue. We hear it a lot in the antitrust bar because a lot of the Big Law firms that specialize in antitrust tend to be on the East Coast, where we’re facing a lot more diversity issues than, for example, the California bar.
Where I was coming in from on Wall Street, I couldn’t particularly say that diversity was doing very well there, right?
And one of the things that was always a source of confusion, I think, to some of the senior management at law firms that I spoke to was we have this incredibly diverse incoming class. We could make pamphlets of how diverse these incoming associates are. Why aren’t they reflected in our ranks on the website when you go in and check the partnership, the counsel, the promotions?
Where are they? Where did they go?
And it’s because a lot of firms—they’re trying very hard—but they’re sort of creating cookie cutter diversity programs. They sort of put a stamp on it and they say, we did the monthly chat for first-generation attorneys. We did the chat for the East Asian women associates.
But where is the engagement?
Every firm has different needs, right?
It’s sort of like if you’re building a city as an architect and you have this blueprint and you use it for every single city that you create, and you go into the city and you wonder why aren’t people flourishing in every single city? We used the same blueprint and it worked here but it’s not working there, and it’s sort of like that for the law firms too.
I think a lot of law firms are getting consulting about what kind of programs worked one place and don’t really critically think about how that might apply to their associates, and young attorneys increasingly are really understanding their value, their worth, and they’re demanding more because they know their value. I think it’s partly what’s contributing to the "great resignation."
So they’re going to continue to ask for a spot. They’ve worked so hard to be there and I think firms are going to have to start listening to them. A lot of them are starting to listen to them, but it is a slow process and I think young attorneys in particular are going to be really driving that effort to make sure that at least on the law firm front, diversity is going to have to improve over the next few years.
MR. VIEUX: And how would you advise young attorneys do that? At the start of your career it’s intimidating, especially depending on what background you come from, at a law firm. You don’t want to be seen as a troublemaker.
MS. CHUN: Good trouble.
MR. VIEUX: Good trouble, yeah.
How do young attorneys do that, advocate for that but still protect their careers?
MS. CHUN: It’s a hard question because on the one hand I don’t want to put the burden on diverse associates to make the path for themselves but if no one is making that path for them, they have no choice, right?
I think my first advice for the diverse associates is just to first be in the room—and I know it’s different to be in the room and then to be sort of invited to dance—but being in the room is sort of the foot in the door.
And then I think more than anything, though, it’s going to have to be an institutional change. I think a lot of times, at least in Big Law, the way diversity and inclusion are thought of is sort of siloed. We have DEI and we have DEI programming and we have partners who are in charge of the DEI program, but it’s sort of a separate, siloed existence than viewing every aspect of the business through the lens of diversity, looking at the staffing and saying, is there an issue with how we’re staffing these cases? Looking at the clients and seeing what their demands are for diverse teams, right?
It’s not just about having the programming, it’s just really making sure that the firms are looking at diversity, and the lens of diversity and inclusion applies to all aspects of their business.
MR. VIEUX: Putting that pressure.
Well, Jeff, you have a unique experience, being in the government.
What would you recommend to folks, diverse attorneys, in terms of making sure the pipeline is reflective of themselves, of people in their group?
MR. NEGRETTE: Yeah, so I think that’s gotten a little better than it has been in the past but there still are real challenges.
I think one of the best avenues that is available for new diverse attorneys is to join any of the number of affinity groups that we now see in the agencies; some of them occur at the division level, some of them are at the department level, but quite a few opportunities for people to feel that sense of inclusion because it’s not enough just to get people in the door and to make the numbers look good. It’s very inefficient to spend all your time trying to recruit people that don’t stick around.
And so it’s very much a culture change that needs to occur in the organization, and that obviously starts at the top. There needs to be a leadership level of commitment to what it means to have a diverse organization and why that’s important, why that’s valuable, pushing that message throughout the chain of command and in doing so, creating this environment that younger people will feel comfortable participating in, being a part of, and in turn contributing to of their own accord.
MR. VIEUX: I don’t want to put you on the spot, but one thing I remember too from the government it was great in terms of at the entry level, getting that experience, getting hired. But one thing I noticed too was just moving through the ranks, and a lot of folks felt—and Laura, I’ll turn it over to you since you did move through the ranks at the FTC—but a lot of folks felt that was closed to them, and that certainly had an effect, in terms of retention of diverse attorneys.
And I notice, on a positive note, the DOJ with Doha Mekki, the management has gotten more diverse, but any insights that you can speak to in terms of improving or being more intentional about improving those promotional opportunities for diverse attorneys?
MS. WILKINSON: I’ll start off—it’s been some time since I’ve been out of the government but I do think I agree with you, I’m seeing more movement in terms of progression of diverse attorneys through the ranks at all of the government agencies and I think that’s a very positive step in many of the programs that you spoke of, of probably partly contributing to that.
I think that there are things that, as I said, we can all do where we are. In the in-house sector and in the law firms there are programs such as diversity lab or other things like that where the law firm or the company or even the government agency, you know, makes a commitment to increasing diversity or taking steps to increase diversity, not only in their hiring and advancement but on the in-house side, on making sure that the attorneys that work for us are also diverse and putting commitment around that so that it’s a shared responsibility for everyone. Again, not just the diverse attorney’s responsibility or the diversity committee’s responsibility but everyone’s responsibility, and part of how people are evaluated or compensated is often a motivating factor.
And so those kinds of commitments, incentives, things like that will help spur increased diversity, whether it’s for someone’s own self-interest to make things happen or whether it’s because it’s the best for the organization. I think it’s really both.
And there are many programs like that, that we should all, in our own environments, think about what, you know, as you said fits your environment.
It’s not a one-size-fits-all, but make the effort to say, what can we do to increase our commitment and make it a shared responsibility, not just on the diverse attorneys or the committee that has that charge?
And I think that there’s still a valuable role for the affinity groups for the diverse attorneys and allies, because you do need to have some safe spaces where you can talk about issues like this and how to navigate, so there’s a very important role for that. But that’s not the only thing and that is not going
to be enough to advance the needle, but it will help with retention.
MR. VIEUX: To add to that, too—and I’m going to ask this question for each I guess for lack of a better word, representative for each sector—but what do you think, Laura? In terms of the corporate world, what can they do in terms of improving diversity? Not only corporate legal departments, but just generally? I think you touched on that a little bit, in terms of hiring decisions, but if you can expand on that.
MS. WILKINSON: Yeah. I mean, I do think a large part of it is hiring decisions both internally within the legal departments because as the legal departments are more diverse, there will be different perspectives and different networks of people that they may reach out to, in terms of hiring from the retention of external counsel for the company.
So the internal hiring and promotion is a big piece of it and then the other part, as you said, is the law firms that we retain and making sure that, you know, even if you have, you know—I know many in-house law departments have historical law firms that they use and so it’s harder to shift to another firm—but really take the time to look at the ranks of those firms and try to get some of the more diverse attorneys or women involved in your matters so that they can get experience. Or, where appropriate, look to other firms and other partners that may have even more relevant experience and give them a try because just because you’ve always used that firm, doesn’t mean you have to continue.
And part of that may be whether they have shown progress on the diversity front, maybe one of those factors that make you decide that maybe we should look at some other outside counsel.
MR. VIEUX: And yes, the legal market in terms of business for corporate defense clients is getting a lot more competitive, I’ve noticed.
MS. WILKINSON: And the in-house departments are getting more diverse as well, and I think that that will have an impact on bringing the pipeline of law firm partners along as well.
MR. VIEUX: Jeff, you touched on this too, in terms of diversity and the role of public agencies can play.
Could you speak to that, not only in terms of hiring within the Department or the FTC or State AGs, but what role the enforcement agencies can play, in terms of diversity in general, even diversity in the private bar?
MR. NEGRETTE: So I do think of the agencies as part of the pipeline. And so, how we structure ourselves, I think in part contributes to diversity elsewhere in the bar. And the way that we—at least the way I look at it—are trying to maximize diversity within the organization is really a multistep process.
We’ve talked about hiring but it really begins with outreach, you know, just trying to get people to apply, right, is a very important first step.
And then in the hiring cycle, it’s really important to convey to hiring officials what it means to hire up a new attorney that reflects the characteristics that the organization is looking for, and it’s easy to fall into traps, right? I think someone mentioned bias here but we, just as human beings, right, we commonly fall into the convenience traps, right, of engaging in unconscious bias.
So we may objectively and openly put a great deal of value on diversity but we’re all very busy and when we’re staring down the barrel of 300 resumes, it’s extremely tempting to take shortcuts, but those shortcuts really do undermine the process of trying to capture someone who really reflects the characteristics that we’re looking for. So hiring is a very big part of it.
And then of course retention and advancement.
That’s sort of the four-step process, as I see it, in terms of trying to build and maintain a diverse organization which, in turn, hopefully will benefit the rest of the bar through natural career progression.
MR. VIEUX: Yes, I definitely agree.
Charlotte, just to follow-up on that too, you have an interesting perspective as being a similar perspective of mine—you know, corporate private bar, in terms of defense.
I’ll ask this of you: what role, as somebody sitting on the opposite side of government enforcers, what role do you think the enforcement agencies play in diversifying the profession, diversifying the bar?
MS. CHUN: This is something that we talked about during our prep session as well.
Cleary in particular works a lot with international clients, so what ends up happening sometimes is that you have foreign clients who look at the enforcement—look at the government side. They look at the folks who are sitting on the opposite side of the table as them and they try to mirror that sometimes implicitly in their own defense counsel; maybe strategically it would be better if we have white male counsel talk to the DOJ because they happen to have a white male panel—I’m just using the DOJ as an example. No shots fired.
And sometimes that could be a part of the calculus in the client’s mind as well. So sitting as a junior attorney and looking at what, you know—what the room composition looks like, I can’t help but wonder, maybe the client is thinking the same thing. Maybe they would prefer to have folks that look like the government, and to have a more diverse government sitting on the opposite end of the table, I think is actually going to really help diversify teams on the defense side as well.
I mean, I can’t really say it’s one party’s burden or the other, but I do think it is a little bit of a feedback loop. It does affect, I think, people’s choice in their counsel as well.
MR. VIEUX: That’s an interesting perspective, definitely. And Qianwei, as we talk about diversity, a lot of the discussion and a lot of the initiatives, like with the Mansfield Rule, a lot of it seems geared towards the defense bar, defense corporate bar, in-house counsel, legal departments.
I think the plaintiffs’ bar obviously is very important and some folks, a lot of diverse attorneys, they want to be plaintiffs’ lawyers, they want to be on that side.
So what are the incentives for folks in the plaintiffs’ bar to pay attention to diversity, and what initiatives are there to improve diversity in the plaintiffs’ bar? Because it’s lacking on the plaintiffs’ side of things too.
MS. FU: Well, you do need the plaintiffs’ bar, for this practice to exist.
MR. VIEUX: Yes. We wouldn’t get paid.
MS. FU: I think both plaintiffs’ and the defense bars face some common challenges.
You know, if you think the picture is dismal for antitrust practice, it’s even worse for the private sector compared to public and corporate sectors, but I do think the plaintiffs’ bar face some unique challenges and issues that undermine diversity.
When I first started, the leadership appointments for antitrust actions were monopolized by a few repeat players. I’ve seen a positive change in the past 15 years. More women are appointed to leadership positions, more minority lawyers are taking on more meaningful roles litigating those cases, but I think the change has been far too slow.
And I also think, you know, we’ve lost some diverse talent, talented minority attorneys, who did not get the right or proper exposure opportunities in their most crucial years for growth and advancement.
And in other cases I think we’ve made some good progress because more and more in-house counsel, as Laura mentioned, have demanded our legal terms to include diverse talent, and institutional clients recognize there is this correlation between diversity and good business, right?
But for the plaintiffs’ bar, there are also pressures from the bench, demanding more women to be part of the leadership and more minority lawyers to argue dispositive motions or have a seat at the trial counsel table.
And I want to read you an excerpt from your slide. I just think it’s a fantastic opinion.
So Judge Lewis Liman in the Southern District of New York, he has made an eloquent case for promoting diverse leadership in class action cases and I just—I don’t want to paraphrase it because it’s just beautifully written and I’m just going to read it.
So he says: "There is an obvious social value in promoting diversity within the ranks of the legal profession. A firm’s commitment to diversity, though, does not just demonstrate that it shares with the courts a commitment to the values of equal justice under law, rather the intuition and/or diversity criterion is soundly grounded in the court’s obligation to select counsel who will best represent the interest of the class. That intuition is recognized and validated by the views of a consensus of corporate general counsels of some of the leading companies of the United States, each charged with fiduciary duties to protect the interests of the absent shareholders, and on their behalf to select counsel best able to represent the corporation. There is no reason why the courts, faced with a similar choice of selecting counsel, but this time on behalf of the putative absent class members, should not consider and give weight to that same factor."3
Indeed, I think Judge Liman’s made an eloquent case that all sectors—the bench, the public, the corporate and private sector—should live and breathe D&I.
MR. VIEUX: It should, definitely.
I want to thank our panel. This was a great discussion. I enjoyed it, even though I lost track of time, and I hope you guys found it helpful too as well.
1. Steve Vieux is Senior Counsel at Bartko Zankel Bunzel & Miller, PC. Steve represents clients in federal and state court litigation concerning commercial and consumer matters, as well as counseling clients on various antitrust and consumer protection issues. Steve previously served in the Federal Trade Commission’s Bureau of Competition where he participated in antitrust litigation and investigations focusing on the health care and pharmaceutical industries. Steve serves on the Executive Committee and as Chair of the Education Committee for the Antitrust and Unfair Competition Law Section of the California Lawyers Association.
2. City of Providence, Rhode Island v. AbbVie Inc., No. 20-CV-5538 (LJL), 2020 WL 6049139, at *6 (S.D.N.Y. Oct. 13, 2020) (emphasis added).