Diversity and Inclusion Meets Virtual Lawyering | New York Law Journal

60 Centre Street. Photo: Rick Kopstein 60 Centre St. Photo: Rick Kopstein

The pandemic in our new world of remote virtual lawyering is causing law firms to become more introspective and to review their hiring needs, as well as the amount of office space required to practice efficiently. This presents an opportunity for law firms to concomitantly look afresh at how they address diversity and inclusion.

The New York State Bar Association (NYSBA) recently approved a report titled “The Time is Now: Achieving Equality for Women Attorneys in the Courtroom and in ADR” that came from its Commercial and Federal Litigation Section (ComFed). It found that major gender disparities persist in courtrooms throughout the state. The report, based on questionnaires answered by New York state and federal judges, documented the gender of lawyers who appeared before them. It was built on a similar survey that was the predicate for the precedent-setting 2017 ComFed report “If Not Now When?” adopted by both NYSBA and the American Bar Association, which empirically documented that women attorneys were significantly underrepresented as lead counsel in litigation.

According to the 2020 report, the proportion of women acting in lead courtroom roles rose only slightly to 25.3%, compared with 24.7% three years earlier. The NYLJ wrote about this 2020 report on June 15. However, unfortunately, the NYLJ article did not attach a link to the 2020 report. The article addressed these disappointing numbers, but did not discuss in detail the report’s proposed solutions, which seek to rectify these inequities, such as the creation by law firms of women’s initiatives, “sponsorship” opportunities, using men as allies of women, and providing women leadership opportunities. Three weeks ago, the NYSBA, understanding the importance of the 2020 report as a messenger of change, distributed it electronically to its membership so that these well-thought-out solutions could permeate our legal profession, which link is reattached here, www.nysba.org/equalityforwomen[1].

While lawyers may differ as to whether virtual lawyering is good or bad for the long-term practice of law, virtual lawyering is here to stay, as is further evidenced by the NYSBA’s e-book titled “Virtual Lawyering: A Practical Guide,” which was released last week, https://nysba.org/nysbas-definitive-guide-to-virtual-lawyering/[2].

As noted in the July 27 Law360 article titled “Firms Must Note Pandemic’s Outsize Impact On Women,” the profession is at awatershed moment where the massive upheaval caused by the pandemic has created a unique opportunity to implement meaningful structural and cultural changes that could benefit female lawyers and the firms where they work” and that “[t]he key challenge for every law firm is to make sure that diversity and inclusion are core values, with meaningful strategies, goals and achievements in our new normal.” An Aug. 7 Law.com podcast titled “For Big Law’s Working Moms, Pandemic Could Have a Silver Lining … Seriously!” further makes the case that the pandemic may be a “unique moment in time,” demonstrating that remote working, the lack of need to travel, marketing and developing client relations over Zoom from home, and participating virtually as part of a team are now acceptable. These issues historically have presented obstacles to the advancement of women lawyers. Now is thus a good time, with working virtually having been legitimized, for law firms to examine their practices in light of attorney diversity and inclusion and, in particular, increasing opportunities for women.

Mark Berman is a partner at Ganfer Shore Leeds & Zauderer.

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