How to Achieve DE&I in Law Firms Now with Roberta “Bobbi” Liebenberg
In this episode of On Record PR, Gina Rubel goes on record with Roberta “Bobbi” Liebenberg, senior partner at Fine, Kaplan and Black, to discuss steps law firms can take to achieve better diversity within their organizations.
Bobbi is a senior partner at Fine, Kaplan and Black, a law firm in Philadelphia. She is also a principal in The Red Bee Group, a women-owned consulting group devoted to helping clients attain DE&I objectives.
In her law practice, Bobbi focuses her practice on antitrust, class actions, and complex commercial litigation, representing both plaintiffs and defendants. She has devoted considerable time and effort throughout her career to the advancement of women in the profession. She has researched and co-authored groundbreaking, widely cited empirical studies on the underrepresentation of women litigators as lead counsel, the disproportionately high rate of attrition of senior women lawyers, and the effect of the pandemic on women lawyers.
Bobbi has served as chair of numerous organizations devoted to gender equality in the profession, including the ABA Commission on Women in the Profession, the ABA Gender Equity Task Force, the ABA Presidential Initiative on Achieving Long Term Careers for Women in Law, DirectWomen (the only organization devoted to increasing the number of women attorneys on corporate boards), the Pennsylvania and Philadelphia Bar Associations’ respective committees on women in the profession, and the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness.
- First Chairs at Trial-More Women Need Seats at the Table
- Walking Out the Door-The Facts, Figures and Future of Experienced Women Lawyers in Private Practice
- ABA “Practice Forward” Reports published in April 2021 and September 2022, Where Does the Legal Profession Go From Here?
In recognition of her professional accomplishments and contributions to gender equality for women lawyers, Bobbi has received numerous prestigious awards and honors, including the Margaret Brent Women Lawyers of Achievement Award from the ABA Commission on Women in the Profession; the Sandra Day O’Connor Award and Sonia Sotomayor Diversity Award from the Philadelphia Bar Association; the Lynette Norton Award from the Pennsylvania Bar Association; the Florence K. Murray Award from the National Association of Women Judges; the Hortense Ward Courageous Leader Award from the Center for Women in Law at the University of Texas School of Law; the Martha Fay Africa Golden Hammer Award from the ABA’s Law Practice Division; and Lifetime Achievement Awards from Corporate Counsel and Inside Counsel, the Philadelphia Inquirer, and The Legal Intelligencer. She was named by Pennsylvania’s Governor as a “Distinguished Daughter of Pennsylvania,” and The National Law Journal named her as one of the “50 Most Influential Women Lawyers in America” and one of the “Elite Women of the Plaintiffs’ Bar.”
What was the impetus for the 2021 and 2022 Practice Forward Surveys, and can you tell us what they are?
Stephanie Scharf, co-author and I, fielded a survey from May 30th to June 17th of this year to over 2,000 ABA members to follow up on a previous April 2021 survey about how lawyers have been impacted by the pandemic. This survey was really to assess how the legal profession was adjusting to the changes in the practice of the law two and a half years from the start of the pandemic, and it was clear that there have been profound changes in terms of how and where lawyers want to work. Our survey focused on several key areas, but the areas that would be of interest to your listeners are hybrid work, lawyer mobility, stress and burnout, and DEI initiatives and strategies. The report is titled, Where Does a Legal Profession Go From Here? Lawyers Tell us How and Where They Want to Work, and that’s available for free to download from the ABA website.
What has driven your passion for advocating for women in the profession?
I think it stems from my early career experiences where I was often the only woman typically present at court hearings, depositions, and meetings of counsel. I concentrate my practice in antitrust. When I began practicing in 1977, the antitrust bar was virtually all male. Distressingly, there are still far too few women who are serving as lead counsel trial lawyers in antitrust cases and complex litigation, including bet-the-company litigation. I’ve expended significant time and energy to make sure that women lawyers have the same opportunities to succeed and advance as their male counterparts.
Is the data showing us that women are moving forward?
I think that what the data shows is an incredibly glacial rate of progress. We’re still seeing that women are stuck at about 24% in terms of equity partnerships. There’s still a significant pay disparity which increases with seniority, so the largest gap is between male and female equity partners. You’re still seeing that women are not getting the same types of mentorship and sponsorship opportunities. The research that we did in Walking Out the Door looks at the experiences of senior women lawyers who’ve been practicing 15-plus years to try to explain why women are either staying or leaving their firms. There’s a common assumption that women leave the practice of law at childbearing age when they have their children, and indeed that does happen, but the largest stampede out of the profession is at age 50, when women just comprise about 27% of the profession.
As you can see from our findings, there’s not one key factor that makes women decide to leave their law firms. It’s really what we have called the “death by a thousand cuts.” They’re not getting the compensation, they’re not getting mentorship, they’re not getting business development opportunities, they’re not getting their bonuses. At the end of the day, they basically say, “You know what? I don’t want to do this anymore.” Interestingly, it’s not that they’re definitely leaving the profession, but you do see that more and more women are leaving law firms to go in-house for a number of reasons. They feel that they will have more control over their lives to try to achieve some work-life balance.
That is why, our Practice Forward findings and remote work are so important, as well as the onerous billable requirements and the narrow criteria which are used for compensation, especially as equity partners.
Another study that I had done on women partners compensation examined that there were only three factors that a majority of law firms look at: origination credit, billing credit, and revenue generated. All the other things that women do, such as serving on the associates’ committee, checking in on lawyers, being managers, and being good citizens at their legal organizations, are not given credit. I think this “death by a thousand cuts” is why women leave. We’ve been way too patient with respect to the status quo. We need people to focus on how we are going to move the needle to make it a level playing field for women lawyers and women lawyers of color.
Gina Rubel: It’s so fascinating, everything you’ve said I can validate from my own perspective, having run my PR and crisis agency for 20 years now. I have gotten calls over the last 10 years almost monthly, if not more frequently than that, from women looking to transition out of the practice because, “I just can’t take it anymore.” That’s what I would equate to “death by a thousand cuts,” for all those same reasons that you’ve mentioned.
Roberta “Bobbi” Liebenberg: In our Walking Out the Door study, we found a disconnect between how law firm leaders, in particular male managing partners and male leaders, thought their firms were doing in terms of advancing women into equity partnership, making sure that they had leadership opportunities.
We labeled those findings, “Men are from Mars, Women are from Venus,” because male managing partners overwhelmingly thought they were doing a fantastic job in all of those areas, but there was a disconnect for the women who worked at these law firms in terms of how they thought the law firm was doing. This disconnect is also responsible for this slow rate of progress, because I think many firm leaders look at the incoming classes of lawyers; over 50% of graduates of law school are now women, and over 47% of associates are women. Firm leaders think, “Okay, the problem is solved.” Then when women leave, it sort of feeds into their assumptions that women aren’t ambitious and that they are leaving to take care of their family. They’re not confronting these structural issues that impact why women stay or leave in their law firms.
What are some of the key findings with respect to the extent of the use of remote and hybrid work schedules?
Our results showed a paradigm shift in how lawyers want to work in the future. What was really significant is that this shift reflects important generational differences. 87% of lawyers say that their workplaces allow them to work remotely, and almost two-thirds of lawyers in private practice can work remotely a hundred percent of the time or have the flexibility to choose when they work remotely. This was also true for 53% of lawyers in corporate law departments. The least amount of flexibility was for government lawyers, which I thought was very interesting.
Overwhelmingly, the majority of lawyers said that the quality of their work, their billable hours, and their productivity was not impacted by the pandemic. They actually were more productive, they billed more hours, and the quality of the work was as good if not better. You saw this difference for women lawyers. 56% of women lawyers reported that remote work had actually increased their ability to balance work and family obligation, and this was compared to just 42% of men.
Given this clear preference of remote work, we also asked, would lawyers be willing to come back into the office if their employers ask them? You see different messaging about whether or not leaders in legal organizations and leaders in corporations, Goldman Sachs for example, are mandating their employees to come back to work. Interestingly, men were much more likely to respond, “Yes, I would go back to work.” Women and lawyers of color were much more concerned about the consequences if they said they did not want to come back. Here’s the generational difference: 44% of lawyers that have been practicing 10 years or less said they would leave their firm if they did not have the opportunity to work remotely, and that was compared to 13% of lawyers who had practiced 41 plus years in terms of whether they would leave. You see this real generational difference, and you see a real difference for women lawyers and lawyers of color.
Gina Rubel: I truly believe that in five years law firms are going to look vastly different. One of the arguments for return to the office is this idea of mentorship. Because my company’s fully virtual, I’ve been mentoring people now for three years remotely, and it’s working just fine.
Law firms seem to have a hard time with this idea of being able to work collaboratively and to mentor younger generations. What do you think that’s all about?
This really reflects a generational difference. Senior lawyers have grown up in an atmosphere where they would have face-to-face interactions, drop in on people, and go out to lunch with people. Tellingly, we are moving more into global law firms and global corporations that are used to working with teams that are not in the same location and maybe not even in the same time zone. People have become very accustomed to working like that. Younger lawyers, especially those who are digital natives, have grown up being very comfortable online.
I think one of the real problems about when we went remote is that it was the result of the pandemic, so we adopted these policies that may not have been as intentional and thoughtful as they need to be. Clearly, you can have mentorship opportunities. You can have policies where people come back into the office, but you have to be able to explain the value of why you’re coming back. How are you being intentional? Why am I calling you back to do this? I think we have to realize that people will come back to in-office work, but the cadence may be a little different.
Leaders really need to be accountable. They need to demonstrate this value proposition. It’s not like before the pandemic it was so great for women and lawyers of color in terms of culture. Many times they couldn’t participate in activities because they weren’t thoughtfully planned, because they were after hours at a time when they had to go home and take care of their children. There were social events that were not family-friendly. It wasn’t like women and lawyers of color weren’t overlooked in terms of assignments, mentorship, and sponsorship opportunities pre-pandemic.
It is important for organizations to think about the best way to maximize their culture, retain and grow talent, and keep them engaged. Hybrid and remote work is here to stay. You’re just putting your head in the sand if you think it’s not, and we need to adopt the types of policies that are going to let whoever does decide to work remotely thrive as well as those who decide to come in in-person.
Gina Rubel: Remote working was our silver lining. From a small company located in Pennsylvania, we now have employees in at least five states. We were able to diversify at every level, because we’re no longer in a homogenous community.
Roberta “Bobbi” Liebenberg: For those who have long commutes, it’s possible to be way more productive, to go out and take a walk. It maximizes creativity and better thinking, quite frankly, than when we were in the office every day.
That’s why it’s so important as leaders to think about bringing people back to the office. They need to understand and articulate a value proposition, because now employees who’ve had the opportunity to be autonomous and set their schedule see it as a bureaucratic hassle with no concomitant increase in productivity. You’re going to have to be intentional as to why you’re bringing people back and what’s in it for them when they do come back. Be intentional about mentorship and have group leaders and law firm managers understand how they’re interacting. Maybe you bring your team back one day. There are all sorts of creative ways to implement hybrid work policies, but there has to be a vision, there has to be leadership, and there has to be accountability. Law firm leaders not only have to support it, but they also have to model that behavior.
Gina Rubel: Now we’re getting to the point of things. It’s modeling the behavior which I find to be the hardest thing for a lot of the more senior attorneys, who we both went to law school with and have both worked among, to get them to model the same behavior that they want from their more junior counterparts.
Roberta “Bobbi” Liebenberg: I think lawyers have been resistant because they’re coming back to empty offices. A lot of the partners actually aren’t coming in. There’s this dichotomy where staff may have to come in, but lawyers don’t have to come in. I think it’s important as you develop these policies to get feedback from the other lawyers and staff who are going to be impacted by these policies. Find out what will work and what will create the best culture in your organization.
What were some of the findings concerning how women, lawyers of color, and other under-represented lawyers have been faring in the legal workplace over the past 2 ½ years?
We asked a series of questions that related to lawyers’ sense of belonging and inclusion. It revealed significant differences for women lawyers, lawyers of color, and other lawyers from underrepresented groups. These groups reported much more stress at work than their counterparts solely because of their gender, race, ethnicity, sexual orientation, or disability. Distressingly, they were far more likely to report being perceived as less competent at work than their colleagues, feeling unable to be their authentic selves at work, and receiving demeaning or insulting comments at work. After everything that we’ve gone through, we were surprised by these findings.
Given the war for talent, we think legal employers need to pay notice to these findings, because these feelings about belonging impact whether they’re going to stay at the firm. For women employers, lawyers of color, and disabled lawyers, culture is important. Our findings were that these groups were looking for cultures of diversity, equity, inclusion, and ability to work remotely with the flexibility to choose their own schedule and better work/life balance. They were willing to leave if this type of culture was not currently at their place of employment.
Interestingly, all lawyers were interested in a culture which provided written succession plans for leadership, and in law firms, transitioning of clients, regular check-ins from group leaders, and wellness and mental health resources. I think this report provides some rich findings that those in control and in power in legal organizations could use as a resource as policies are being formulated.
Gina Rubel: More than 25 years ago, I left the practice for many of the same reasons. I was the only female lawyer in the firm. I was the only Gentile in the firm. I didn’t get invited to the golf outings, and I didn’t get invited to the lunches. There were no wellness resources. When my 21-year-old cousin was killed in a car accident, I had nowhere to go. I dealt with depression. I believe that the legal industry has come a long way with things like transparency and wellness. We have a long way to go in helping firms to have the cultures that they need to be truly inclusive.
Were you surprised about the Survey’s findings as to the importance of workplace culture, particularly for women, lawyers of color, LGBTQ+ and disabled lawyers?
Given our prior research, we weren’t surprised. I think that these issues around belonging and engagement have been exacerbated by the pandemic. The one upside about the pandemic is that many lawyers sat down and reevaluated where they want to work, who they want to work with, and the type of lifestyle they want. They decided they were going to make a change to find their values elsewhere if they weren’t being met in their current place of employment.
I think that’s a good thing, because legal employers are going to be required to respond to this. We’ll see what happens because the war for talent is sort of shrinking. It’s unclear whether we’ll still see that leverage. The truth is that what we’ve seen from Walking Out the Door and all our other studies is that if law firms want to retain women and lawyers of color, they’re going to need to do something different because what they’ve been doing has not been working. It has not stemmed this disproportionate rate of attrition for women and lawyers of color. They’re just not staying.
What do we do to keep women, LGBTQ+, people of color and the disabled in law firms?
I would refer your listeners to our first Practice Forward survey, because we had a number of findings around DEI strategies and initiatives; we wanted to see whether they had been put on hold during the pandemic. During the 2008-2009 recession, women, lawyers of color, and lawyers who worked part-time were let go at higher numbers. We wanted to see whether history would repeat itself. The good news is that corporations continued to focus on various DEI strategies, including mentorship and advancing women and lawyers of color into leadership.
What was distressing is that a significant percentage of in-house legal departments did not have any kind of accountability tools to assess their own internal DEI strategies and initiatives. Of the small proportion that had accountability tools, few of them used metrics. You can’t see whether policies are successful, whether you have met goals in terms of retention and advancement, unless you keep metrics. Given that I’m sort of a data geek, it’s always amazing to me that metrics aren’t kept, because it is always one of our best practices that metrics have to be implemented. Especially now when we’ve gone into hybrid work, it is important to evaluate whether lawyers are being disadvantaged. Are they getting the same opportunities? You won’t know unless you track.
Gina Rubel: Working in marketing, PR, and crisis comms, I can’t tell you how many times lawyers will say, “Well that’s never worked for us.” The first thing I say is, “Well, how did you measure it?”
They’ll say, “We didn’t. We don’t track where our new business comes from.” The foundation for everything is tracking and profitability. It’s endemic in the industry, and hopefully that’s changing. It is changing with a lot of the bigger firms.
Roberta “Bobbi” Liebenberg: GCs have significant power. Another great resource is a wonderful publication from the ABA Commission on Women in the Profession called The Power of the Purse, free to download. That is what GCs can do to move the needle forward and ensure that women and lawyers of color, whom they’ve invested in, who know the history, who know the client and the company, stay at the firm. When they leave you have to train someone else, so it’s hard on the firm and it’s hard on the client. There are many tips in terms of trying to ensure that GCs help to leverage their power to ensure that law firms are meeting the company’s diversity goals, but you need metrics.
It’s also important to take into consideration the types of matters that women and lawyers of color are getting and whether they’re getting the relationship credit. Are they getting the bet-the-company litigation? Are they on the teams or heading first chairs at trial with cases that generate the most revenue, that generate what’s going to propel them through the partnership? Metrics will show that that is not necessarily the case. Think about not only who’s representing you, who’s in line for succession, but also the types of matters that are being referred to.
Over 400,000 baby boomers should be retiring, if they ever do, in the next 10 years. Considering that increasing diversity leads to better decision-making and better ROI, law firms could transform a new generation of potential rainmakers by ensuring that women and lawyers of color are getting these clients as older, more senior lawyers retire.
I was at several big law firms, and I can tell you that the lawyers who were rainmakers did not necessarily have any super business development skills. They were great lawyers, they obviously took advantage of the client, but they became rainmakers because they inherited clients. Then they were vigilant in terms of how they staffed those matters and who helped them on those matters, but they inherited those clients that put them on their way to become rainmakers. In law firms, 80% of new matters come from existing clients, and women in general do not have access to those internal firm referrals. Women who are rainmakers actually are superpowers because they go out and develop new business.
Gina Rubel: Another plug for having Contact Relationship Managers, CRMs, and sharing contacts and introducing people to clients. One of my biggest frustrations in what I do is the lawyers who say, “These are my contacts and I’m not going to put them into our database.” As you said, 80% of new business comes from existing clients. It’s so shortsighted, but it comes from how we were raised to be competitive as opposed to collaborative in the practice of law in general.
Roberta “Bobbi” Liebenberg: I think it’s also inherent in compensation systems, especially now, which is now sort of you eat what you kill. There’s no incentive to share matters, to share clients. We know from prior research that when women and lawyers of color become partners and they had been working with other partners, those partners stopped giving them work because they’re now in competition with them. When I chaired the commission and much of the research, the best practices that we have published include rethinking compensation systems to ensure that there is sharing of credit, and that you are incentivizing people to share credit. Long-term, it’s better for the firm. If you pay so much attention to an individual rainmaker, when that rainmaker leaves, the firm is also hurt by that. If they had had a team approach, it could be more likely that the client would stay.
Gina Rubel: There are firms doing it and there are firms doing it well. It’s just that they’re still few and far between. I’ve had the good fortune of working with some of them.
Roberta “Bobbi” Liebenberg: Firms should be looking to new policies like that and rethinking the compensation systems. Rethinking billable hours is important because it feeds into compensation systems. We have a billable hour system that does not reward efficiency and quality over quantity. This is something that is detrimental to women, who are often very efficient at work because they are juggling their family and other responsibilities.
What are some of the suggested best practices for legal employers that were presented in the Practice Forward Surveys that you would like to highlight for our listeners?
Whatever policy around remote work that’s going to be established must be intentional, it must be thought out. It has to be built in that lawyers who avail themselves of remote work are not disadvantaged. We know that before the pandemic many law firms had part-time and flex time policy. 96% of law firms had those policies, but around 6% of employees availed themselves of those policies. Those who did take advantage of them were primarily women. The women did not do well. There’s data that shows they weren’t promoted. They did not get the types of assignments that put them on a track that would allow them to advance and succeed within the law firm, so many times they left.
It’s important that we don’t go back to having a gender divide, in that women are going to be the ones who are working remotely, and the men are going to be in the office. Without metrics, will women get disproportionately impacted by that in terms of their assignments, in terms of their compensation, in terms of their promotion? You must implement metrics. You also must model this behavior. Why has progress been so slow? It’s not rocket science to think about the policies that would make a difference. I’ve always said, if law firm leaders thought of DEI as a metric that was as important to them as profits per partner, we would’ve solved this problem.
As you know, I previously interviewed Hillary Sale about DirectWomen. Can you tell us about DirectWomen and why it is so important?
I’m one of the founders of DirectWomen, which is the only national organization whose mission is to increase the representation of women on corporate boards. When we first started DirectWomen in 2007, the real impediment was not even that we were looking to put women on corporate boards, but it was that we were lawyers. There was very much a resistance in terms of, “We have a GC, we don’t need women, we don’t need another lawyer on our board.” Each year, DirectWomen holds a Board Institute where we focus on how women lawyers can set forth their value propositions in terms of the skills and critical thinking that they can bring to a board.
We do that by helping them focus on what their board resume would look like, which is completely different from what a law firm resume would look like. It’s probably a page or a page and a half. It’s not listing all of these accomplishments but trying to focus on the value that you could bring to the board. What are your skill sets that would be helpful to a board?
We also work with our class members of the Board Institute to articulate that value proposition and focus on elevator pitches. Then we do a ton of coaching in terms of having them meet with sitting directors, those who are familiar with corporate governance, and CEOs to help them network. I am extremely proud of the legacy that I helped to create because 42% of our alums of the DirectWomen Board Institute are now sitting on a corporate board. It’s just unbelievable results. Hillary Sale, who has headed up our Board Institute and the faculty, is very much responsible for the success.
Gina Rubel: It was such a pleasure to interview Hillary. I mentioned to you earlier that I saw her at the WIPL Conference that’s hosted by American Lawyer Media. When we’re talking about boards, we’re talking about those paid board positions as opposed to all the volunteer work that we all do. It’s the next level in many people’s corporate journey in how they give back, but also are compensated for the time and talent that they’re bringing to the boards that they serve on.
What is one piece of advice you would like to leave for the audience?
I’m hoping that legal organizations will implement the types of structural reforms that are set forth in great detail in the reports that I’ve mentioned. They have been so long overdue, because I think that those will and can make demonstrated change. For individual lawyers, I’m hoping that they sit down and assess their own business plan. What is it that they would like to see? What are the skills that they need? What do they want to accomplish? Be intentional about your career. It’s also in their hands as well as with the hands of wherever they work, but it’s important that they take control of their careers, knowing that there are many different ways to find success. If you’re not happy where you are, follow your passion, follow what is going to make you happy where you can be the most productive. Don’t be afraid to take the risk to leave that place.
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