Black In-House Counsel 2022 Annual Report

2022 ANNUAL REPORT

Disrupting the

STATUS QUO ALSO

In Conversation with Chair Gensler of the SEC How Data Brings Accountability The Unique Challenges for Black Leaders

Carlos Brown on using his influence to change cultures and increase diversity.

NETWORK

Presents

ELEVATING BLACK EXCELLENCE SUMMIT SERIES 2022

2022 A Showcase for Black Partners Elevating Black Excellence is one of BIHC’s flagship events of 2022

In Elevating Black Excellence we bridge the gap between in-house legal teams and black partners.

Our events introduce key clients to Black partners who are practicing in mission critical areas of corporate law and contributing to legal and strategic decisions that are shaping the business landscape.

MAY 12 • OCTOBER 13 For more information please visit: tinyurl.com/4z4yk7ah

PUBLISHER’S NOTE Data, Courage and Action

I

N THE MONTHS FOLLOWING MAY 25, 2020, a total of $50 billion was pledged by corporate America to advance racial justice. So far, less than $2 billion of that money has been distributed. This vividly illustrates the disconnect between the rhetoric and the reality of diversity initiatives. Many of the law departments that are making some progress still talk about ‘stagnation’ frustration, both in their departments and with their outside counsel.

There are two things necessary to combat this. The first is accurate data. The second is the courage to act on that information once you get it. The data that is discussed in this issue of The Black In House Counsel Annual Report and beyond represents an unprecedented opportunity. For general counsel, there is now only one question: Do you have the courage to live your values and act on this data?

In my interview with Gary Gensler, Chair of the SEC, I learned how courage, transparency and accountability is shaping the SEC’s agenda to drive progress in corporate America towards answering the questions on human capital that are key for investors. This is one of the trends and tensions emerging that will have a big impact on all general counsel. Institutional investors, the SEC and other regulators are asking for more data on human capital.

Some of the largest and most influential investors – State Street and BlackRock – are not just asking for this data, but demanding to know the strategy around it.

There will be increasing scrutiny on companies and how they run their businesses. As a result, the general counsel and the legal department will be closer to the pressure points between broader culture, the business press and shareholders. Law departments will have to look to their own cultures and challenge assumptions about how they develop and retain their people in ways

Lloyd M. Johnson Jr. and Vernon Jordan

that are unprecedented. Don Liu of Target, Carlos Brown at Dominion Energy and Juliette Pryor at Albertsons represent general counsel who are at the forefront of challenging historical assumptions and making decisions based upon solid data.

One courageous leader who inspired many different visions of success in many different people was Vernon Jordan. Vernon lived the courage of his convictions throughout his life. People that he never met will be touched by his actions forever and that is an example for us all.

The cause of advancing diversity, equity and inclusion demands that more general counsel step up with courage like Vernon Jordan did. We hope that reading this year’s Black In House Counsel Annual Report will inspire your courage and lead you to action!

Lloyd M. Johnson Jr. Publisher BIHC 2022 Annual Report lloydj@chieflegalexec.com

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Contents 1 4 6

PUBLISHER’S NOTE THOUGHT LEADERS CONTRIBUTORS

POLICY MAKERS 8

8

A MISSION FOR INCLUSION: IN COVERSATION WITH GARY GENSLER, CHAIR OF THE SEC

Gary Gensler, Chair of the SEC, discusses what DEI means to the SEC and how it is a critical aspect of the agency’s agenda.

LEGAL DEPARTMENTS

16

16

DISRUPTING THE STATUS QUO

36

ENGINE OF CHANGE

39

LEGAL DEPARTMENT BEST PRACTICES: DELIVERING ON OUTSIDE COUNSEL DEI EFFORTS

44

TO MANAGE CHANGE WE NEED TO MEASURE IT: HOW JUSTICE BID IS PUTTING DATA ANALYTICS AT THE FOREFRONT OF DEI STRATEGY

50

OPERATION TRANSFORMATION

52 58

BLACK GENERAL COUNSEL IN THE BIHC 500

62 64

VERONA DORCH: AN APPRECIATION

How Carlos Brown and his legal team at Dominion Energy are using their influence to change cultures and increase diversity.

Nate Saint Victor on building the Legal and Compliance team in one of the most influential firms on Wall Street.

Four leading legal teams, 3M, Meta, Home Depot and Intel, share what works.

How Justice Bid is furthering accountability on DEI in the legal profession.

Legal Operators is a community of leading legal operations professionals uniquely focused on the use of data for DEI. A look at current Black general counsel in some of the largest public and private companies.

DRIVING DIVERSITY WITH DATA

Meta Legal is making DEI data and engagement with diverse talent central to its relationships with outside law firms.

BIHC remembers Verona Dorch and discusses her legacy.

AT THE TOP OF THEIR GAME: BLACK PROFESSIONAL SPORTS GENERAL COUNSEL

Professional sports general counsel facing a range of new opportunities and challenges.

EXECUTIVE LEADERSHIP 70

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THE UNIQUE CHALLENGES OF BLACK LEADERS

Are we finally seeing the beginning of real and long-lasting change for Black leaders?

2022 ANNUAL REPORT 74 77 82 88 90

MORE THAN A LAWYER: BEYOND THE GC ROLE

96

LEADING AND SERVING: BLACK LAWYERS IN THE BIDEN ADMINISTRATION

Black general counsel who are taking on senior roles that go beyond legal.

BUILDING RELATIONSHIPS, BUILDING A CAREER

Black leaders will face challenges unless they have a strong network.

GCS ON BOARDS

Black general counsel are among the top candidates selected to serve as board directors.

VERNON JORDAN: A LIFE LIVED MAKING A DIFFERENCE Celebrating Vernon Jordan and his legacy.

BARRY LAWSON WILLIAMS: WHAT DOES IT TAKE TO GET INVITED ONTO A BOARD?

Barry Lawson Williams offers insights on what it really takes to be invited to serve on a corporate board.

We profile Black lawyers in President Biden’s cabinet.

LAW FIRMS 104 110 116 124

39

143

BRING THE DATA: WHERE NEXT FOR DATA, TRANSPARENCY & DEI For many clients it’s now bring the data or go home.

NO COMMENT? QUESTIONS LEGAL DEPARTMENTS WANT TO ASK, BUT LAW FIRMS DON’T WANT TO ANSWER Will not providing answers damage leading law firms’ business?

EMERGING TRENDS 2022

Black lawyers who are world-class experts share what they think is key.

MALICIOUS COMPLIANCE

Despite decades of diversity and inclusion initiatives, the law remains one of the least diverse professions in the United States.

DEI STRATEGY IS NOT INTELLECTUAL: LEARNING EVERY DAY 132 CHANGE ALM’s cultural journey in relation to DEI – one where the most valuable lessons may come from the bumps in the road.

THE TALENT IS: JULIETTE PRYOR’S KEYS TO 140 WHERE DEVELOPING A DIVERSE TEAM Juliette Pryor shares what works for developing diverse talent.

COMPETITIVE ADVANTAGE: TALENT DEVELOPMENT AND 143 THE INCLUSIVITY AT TYSON FOODS How the legal team is increasing diversity and progression of that talent.

TOGETHER 150 COMING Collaboration and honest dialogue is needed now more than ever across diverse communities.

VS PROGRESS: HOW COMPANIES CAN AVOID BEING 154 RISK CAUGHT BETWEEN A ROCK AND A HARD PLACE

Companies seeking to act to address racial inequality must do so in ways that mitigate legal risks.

DISCRIMINATION 158 REVERSE How can employers implement positive change while also protecting themselves from adverse legal consequences?

COVER PHOTOGRAPHED BY JAY MCCLINTON

S PON S ORED BY ALTERITY .....................................................114 COVINGTON ................................................ 80 DAVIS POLK ................................................. 94 DENTONS ................................................... 136 DLA PIPER...................................................100 HOGAN LOVELLS ......................................... 20 LINKLATERS................................................ 148 MILBANK ..................................................... 56 MLA ............................................................. 86 REED SMITH ................................................ 66 WEIL GOTSHAL .............................................32

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Here are some of the leading thinkers whose thoughts and insights informed the coverage in this publication.

CARLOS BROWN

GARY GENSLER

KODWO GHARTEY-TAGOE

MARC HOWZE

MELBA HUGHES

DON LIU, CLO

ALLEN LO

COLIN MCCARTHY

GC, Dominion Energy Brown is a general counsel displaying both creativity and courage in developing more meaningful relationships with Black law firm partners among Dominion Energy’s outside counsel to help effect progress in diversity, equity and inclusion (DEI). p.16

Partner, Major, Lindsey & Africa Hughes shares her insight into the increasing opportunities for Black general counsel to move into board roles and why this is a trend that will continue. p.82

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Chair, Securities and Exchange Commission Gensler shares how DEI and environmental, social and governance (ESG) are key areas of focus for the SEC. He discusses how DEI is informing policy but is also an internal focus for the agency to ensure their employees bring the best versions of themselves to work. p.8

Target Liu shares his thoughts on why collaboration and honest dialogue is needed now more than ever across diverse communities.

He also deconstructs attitudes that have traditionally hampered connectivity between the Black and the Asian Pacific American communities. p.150

Chief Legal Officer, Duke Energy Ghartey-Tagoe discusses the importance of building strong relationships throughout a career and how a willingness to try different roles in a business can help lawyers progress. p.74

VP and Deputy General Counsel, Meta Lo discusses Meta Legal’s commitment to drive changes in diversity in the equity partnership ranks of law firms that Meta uses as a first step in its journey to improve diversity in the legal industry overall. p.58

Group President, Lifecycle Solutions & Chief Administrative Officer at Deere & Company Howze’s framework for professional moves takes the metric of how it will expand his knowledge, his network and his impact. p.74

CEO, Legal Operators McCarthy is the founder of Legal Operators, a community of leading legal operations professionals uniquely focused on the use of data for DEI. McCarthy discusses how general counsel and heads of legal operations can work together to use data to drive meaningful change. p.50

THOUGHT LEADERS

TERI MCCLURE

MOLLY MILLER

SONYA OLDS SOM

DONALD PROPHETE

DONALD REMY

ARLENE ROAN

TERESA ROSEBOROUGH

MACEY RUSSELL

NATE SAINT VICTOR

AMY TU

TONY WEST

BARRY WILLIAMS

Former UPS General Counsel and Chief Human Resources Officer McClure has served on multiple public company boards as well as being a general counsel. She discusses the ways in which Black leaders can navigate the uneven leadership terrain that exists in many organizations. p.70

United States Deputy Secretary of Veterans Affairs For Remy, a central component of moving into leadership roles beyond that of a legal leader was building credibility and having a team philosophy around what you all want to get done. p.74

GC, Engine No. 1 Saint Victor, Engine No. 1’s first general counsel, shares his experiences of building the legal and compliance department at one of the most influential firms on Wall Street. p.36

Chief Content Officer, ALM Media ALM faced some criticism for its coverage of the departure of former Coca-Cola GC Bradley Gayton. Miller discusses how this accelerated the work the media organization was already undertaking in changing its culture to be more inclusive and looks at the practical lessons learned. p.132

President and Founder, Roadhouse Performance Consulting Roan emphasizes the need for companies to look at the patterns that keep diverse employees from attaining leadership positions. p.70

CLO, Tyson Foods Amy Tu discusses professional development in the light of her personal commitment to increasing diversity and ensuring that all members of her team have every opportunity to pursue their career as far as their ambitions will take them. p.143

Partner, Heidrick & Struggles Olds Som explores how legal experience is now providing the foundation for many lawyers to move into non-legal leadership roles. How can lawyers best position themselves for such moves and does a step out of the legal department mean a substantial shift in mindset? p.74

GC, The Home Depot Roseborough shares some of the best practices that define The Home Depot’s DEI strategy.

Feedback and communication are essential components to ensure the legal team know each other and have safe forums for discussing difficult issues. p.39

GC, Uber DEI data is a prerequisite to be part of Uber’s Preferred Counsel Program. West discusses why shared values around DEI are so crucial to him and his team. p.104

Partner, Constangy, Brooks, Smith & Prophete How do values that are inculcated in the systems of our legal organizations mitigate against Black lawyers? Prophete shares his thoughts on malicious compliance and its lasting effects. p.124

Partner, Choate, Hall & Stewart Russell shares his views on the structural biases that still hold many law firms back from meaningful progress on diversity. This disconnection with diverse talent may cost law firms dear in the future. p.104

Board Member Williams, a veteran of many board roles, shares insights on what it takes to get invited onto a board and how this is informing his Black Corporate Board Readiness program at Santa Clara University. p.90

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CONTRIBUTORS

KRISTY BARKER is a London-based freelance copy editor and proofreader. She works across a range of subjects, with a specialism in law and legal philosophy.

JODI BARTLE worked on Legal 500’s GC Magazine and MCCA’s magazine Diversity & the Bar with Dr. Catherine McGregor and over 2021 was editor of The Professional Alternative’s platform for professional services firms.

CAROLYN M. BROWN is an award-winning journalist, editor, author and playwright who has produced content spanning across a portfolio of platforms.

Publication credits include Inc. Forbes, Diversity Woman and Essence magazines.

PUBLISHER Lloyd M. Johnson Jr. lloydj@chieflegalexec.com

EDITOR-IN-CHIEF Catherine McGregor DESIGN DIRECTOR Edwin Pineda EXECUTIVE EDITOR Matthew Scott

VIKKI CONWELL is a former journalist and freelance writer with extensive experience working for daily newspapers and digital media. She is based in Atlanta.

SHERIE HOLDER is a former magazine and book editor, author and college lecturer.

JOYCE JONES is a Bostonbased, seasoned writer with several years of journalism and communications experience.

Based in metro Atlanta, freelance writer DAVID LINDSAY is a former contributor for the alumni magazines at Howard University and Clark Atlanta University.

FRANK MCCOY is a freelance writer in Baltimore and creator of the Stemrules.com website.

CATHERINE MCGREGOR is an author and management consultant. She has worked for a range of legal publications and consults to law firms and legal departments around the world. She works across several BIHC initiatives including the Annual Report.

WRITERS Jodi Bartle Carolyn Brown Vikki Conwell Sherie Holder Joyce Jones David Lindsay Frank McCoy Catherine McGregor Matthew Scott Tracey Sinclair PHOTOGRAPHERS Craig Lee Jay McClinton COPY EDITOR Tracey Sinclair PROOFREADER Kristy Barker

EDWIN PINEDA is the founder of Blue Monkey Design, a graphic design studio in Miami Florida. Edwin works across print and digital media for a range of clients.

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MATTHEW SCOTT is a columnist for the Boardmember.com website. Based in New York, he writes about DEI, corporate governance and investing topics.

TRACEY SINCLAIR is a freelance editor and writer with established specialisms in the fields of legal, business, not-for-profit and the performing arts. She has written for many leading publications both in print and online.

© COPYRIGHT CHIEF LEGAL EXECUTIVE 2022.

ALL RIGHTS RESERVED.

POLICY MAKERS MEANINGFUL CHANGE WILL NOT HAPPEN UNLESS progress in diversity, equity and inclusion (DEI) becomes not just a matter of a ‘nice to have’ but something that organizations must do. Some of this pressure is already coming from investors and shareholders, as well as from consumers. It is also becoming a focus for policy makers and regulators.

In each issue of our Annual Report, The Black In House Counsel Network will be speaking to policy makers about their views on advancing DEI in the United States and beyond. For the 2022 Annual Report, we were privileged to interview Gary Gensler, the Chair of the Securities and Exchange Commission. Chair Gensler talked about why environmental, social and governance (ESG) and human capital are areas of focus for the agency going forward – because these are now priorities for investors.

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We want staff who can bring their whole self to work and can contribute in all ways to the meaningful work of the agency.”

Whether it’s climate risk, human capital risk or cyber risk, the markets benefit from consistency and comparability that investors can then use to make decisions.”

One of the things we are taking a very close look at now is the rapid change in technology around digital engagement practices.”

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POLICY MAKERS

A Mission for Inclusion: In Conversation with Gary Gensler, Chair of the SEC Gary Gensler, Chair of the SEC, sat down with Lloyd M. Johnson Jr., publisher of The Black In House Counsel Annual Report, to discuss what DEI means to the SEC and how it is a critical aspect of the agency’s agenda.

LLOYD JOHNSON: Thank you for taking the time to share some of your thoughts with our readers, Chair Gensler. Firstly, why is DEI [Diversity, Equity and Inclusion] a priority during your tenure as chair? And why is this so important to you personally?

CHAIR GENSLER: If I can start with the SEC’s mission, it’s about investor protection; it’s about capital formation, and that which is in the middle – fair, orderly and efficient markets. To protect investors and to have fair markets, it’s also about inclusive markets. It’s important to ensure that across the 330 million plus people in America, they have access to the capital markets and that the information being shared is full and fair. Also, that this in-

formation is shared up and down the income and wealth spectrum and across our wonderfully diverse nation.

It’s also something we need to think about at the SEC internally. At the agency, we’ve got progress to make to get the benefits of people of all backgrounds – so they can bring their authentic selves to work, they can get promotions, they can get opportunities to be in senior leadership, and so that they can contribute to our mission, regardless of race or color, creed, ethnic background, gender or sexual orientation.

We want staff who can bring their whole self to work and can contribute in all ways to the meaningful work of the agency.

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LLOYD JOHNSON: Over the years, I have had an opportunity to work with some of the Directors of Enforcement, such as Linda Thomsen, and others. I think now may be the first time that both the Director of Enforcement and the Director of Corporation Finance are people of color. Is that accurate?

CHAIR GENSLER: I’ll leave it to others to look at the history, but we’ve got terrific, talented people running various units. You mentioned our remarkable Director of Enforcement, Gurbir Grewal, who joined us from being the Attorney General of New Jersey. Renee Jones, our Director of Corporation Finance, joined us from a law professorship in Boston and is an academic and public policy minded. They’re both terrific individuals that we’re proud to call colleagues.

Gurbir Grewal Director of Enforcement

Renee Jones Director of Corporate Finance

LLOYD JOHNSON: Some say that the SEC’s focus on ESG [environmental, social and governance] and DEI is stepping outside of its jurisdictional authority. Is this just politicking? Or do you feel the role of the SEC – and the remit of its chair – is changing, and needs to change because of how priorities in society in business are changing, to focus on more than just financial profit as the main metric of success?

CHAIR GENSLER: Our securities laws are based on policy decisions which were laid out in earlier times about

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how investors get to decide whether to buy or sell or vote a proxy. But there’s a requirement for full and fair disclosure from issuers around basic concepts of anti-fraud and anti-manipulation and so on. Those are our core tenets embedded in the securities laws.

What does change over time is what information investors look at and, over the decades, this has shifted. We added disclosures around management discussion and analysis some 40 to 50 years ago; we added disclosures around the environment in the 1970s; we added disclosures around executive compensation, and so forth. What does that mean for the 2020s? There are tens of trillions of dollars of assets under management and investors are looking to companies to disclose information about climate risks and about cyber risk. Building upon work from predecessors in this job, we’re also looking at workforce or what one might call ‘human capital’ disclosures, building upon work that Chair Clayton had done during his tenure.

What remains consistent are these basic tenets of full and fair disclosure, anti-fraud and anti-manipulation. What does shift over time comes from the investors and the issuers. Now there is significant investor demand for information on climate risk disclosures.

LLOYD JOHNSON: Would it be an oversimplification to say that, in essence, what is more relevant in the 2020s should be part of what investors are able to have access to?

CHAIR GENSLER: Right, so at the SEC, I like to say we’re technology neutral, we’re not public policy neutral; and the public policies about full and fair disclosures mean that investors get to decide on these key critical investment decisions. We have hundreds, if not thousands, of companies that are currently making some form of climate risk disclosures. At the SEC, we can play a role to help bring consistency, comparability for making decisions, and so doing that tends to bring greater efficiency to the capital markets. That’s good for issuers as well as

POLICY MAKERS At the SEC, I like to say we’re technology neutral, we’re not public policy neutral; and the public policies about full and fair disclosures mean that investors get to decide on these key critical investment decisions.”

investors. When you’ve got so many companies making these types of disclosures, but their investors don’t know enough yet to evaluate properly – any comparability and consistency we can bring makes that information more decision useful.

LLOYD JOHNSON: One general counsel compared some of what their company is being asked to do with not knowing whether they’re playing soccer, or rugby, or baseball: they’d like to have more clarity around what the rules are.

CHAIR GENSLER: I haven’t heard that analogy but, using another sport-related analogy, let’s think of the Olympics. These have been around since 1896 in modern times – of course, you can go back to the Greek games in antiquity. But what you find is that every four years, there may be some sports added and some sports dropped. Similarly, for disclosure, for the 2020s, investors are really looking at climate risk disclosures, human capital and cyber risk disclosures, in a way they have not during earlier decades, and these are now really a part of their investment decision regime. Thank you for the sports analogy, but the Olympics is a more useful one in trying to bring some consistency and comparability to these potential new disclosures that are already happening.

LLOYD JOHNSON: I love the Olympics metaphor! How much room is there for regulators and companies to work collaboratively on defining standards and compliance to these around ESG issues?

CHAIR GENSLER: The SEC has benefited greatly throughout its existence by looking at what companies are doing, and reviewing their disclosures around these areas, as they currently exist. We are also informed by similar policy discussions and debates globally. On climate risk, there are multiple frameworks – one of them

called the Task Force on Climate-related Financial Disclosures (TCFD) – and we at the SEC are looking to be informed as to what companies are currently doing as well as what other jurisdictions are doing in this area.

The international collaboration that’s going on, particularly in climate risk, is very significant. We have similar discussions around cyber risk disclosures, which may not have been the center of your question. All these discussions are very helpful in our key aim, which is trying to help issuers as well as investors to have comparability and consistency. So, on the issuer side, they say, “This is what might happen here in the U.S., and this is what may happen here.” There might be some differences, but there’s a rationale and an understanding as to those differences.

LLOYD JOHNSON: There are hundreds or even thousands of ESG raters, rankers and governmental standard setters. Recently, some enhanced coordination among some of them has given hope to those that believe that ESG integration is essential for real change. But others say that there cannot really be meaningful integration because different countries, regulatory regimes, and market practices vary too much. How much hope is there for ESG disclosure integration?

CHAIR GENSLER: I take the nature of your questions about consistency across various jurisdictions. While we have different legislative authorities and different mandates as securities regulators around the globe, there has been a significant set of discussions that predates my being in this job. These discussions look at what qualitative and quantitative disclosures are being used and how these are relevant and helpful to investors in the climate disclosure area. Each of the major jurisdictions is currently embarked on a project of disclosure and there’s a lot of talking with each other.

The SEC still must, within our scope, work within our

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own chalk lines of authority and put something out. This will be subject to commission vote; to notice and comment; to get public feedback and then build what we will do here. But I would anticipate that many jurisdictions will be discussing and debating very similar issues around the qualitative and quantitative disclosures that have been discussed and outlined and the TCFD framework.

LLOYD JOHNSON: How much will the SEC be moving away from principles-based voluntary disclosure on DEI metrics to mandatory disclosure? Might this focus only on executive ranks or be extended to a whole company?

CHAIR GENSLER: I don’t want to get ahead of the work and recommendations coming from the staff and my fel-

might recommend to us nor what a multi-member commission might vote out for proposal. But I would encourage your readers, if you’re reading this interview, and we have already put a proposal out, to send us your feedback. We benefit from everybody’s feedback, wherever we come out on the issues just raised. We benefit from feedback and a robust comment file which covers what you are currently doing at your companies, and what the opportunities and challenges are with investors.

LLOYD JOHNSON: We have discussed the greater focus on reporting on DEI from companies, but what is the SEC doing to increase diversity through its own leadership ranks?

We are really focused on ensuring that this great agency, the SEC, reflects the wealth of diversity that we have in our nation.” low commissioners. If I can take it up a level and say that whether it’s climate risk, human capital risk or cyber risk, the markets benefit from consistency and comparability that investors can then use to make decisions. That will tend towards having some potentially detailed disclosures. Going back to my Olympics analogy, people know if it’s a 100-meter dash, it’s not that some are running 110 meters and some are running 90 meters. There is a benefit to some standardization, to get to consistency, comparability and decision usefulness.

LLOYD JOHNSON: And I’m sure there are some general counsel and others inside companies that feel that they’re running the marathon with 10 pounds on their back! Going forward, will human capital be reported in the same way as financial information? More specifically, if you make a false statement or mislead the market about your DEI numbers, will there be repercussions?

CHAIR GENSLER: I can’t prejudge what course staff

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CHAIR GENSLER: If I can zoom out a bit from disclosures from issuers, back to our overall mission for fair, orderly and efficient markets and to have investor protection: one of the things we are taking a very close look at now is the rapid change in technology around digital engagement practices.

In the financial sector, digital platforms are targeting us one by one; they are differentially marketing to each of us, based upon so much data about all of us, data which comes from our internet usage. We get differentially marketed, differentially priced based upon the algorithms and what underlying artificial intelligence and machine learning takes from that data.

Now what does that mean? That means that a robot-advisor might steer some people into products that are higher margin for the platform because the machine learning knows these people might be responsive to certain behavioral prompts based on their data. For example, a brokerage app could steer certain individuals to options

POLICY MAKERS for trading a riskier product that could deliver higher revenues to the platform. We’re looking at all this for multiple reasons; one, of course, is investor protection, but second is also bias. The reason is, if you’re basing your algorithms on today’s society, which already has inherent inequities and biases in its data, then that can be inadvertently transferred into how you market to people, in how you promote your product or price your product differentially. This is a very real public policy debate, not just for a securities regulator like the SEC, but also for other parts of our financial regulatory environment, and more broadly in society.

That focus on the way that inherent biases shape our society means that, internally at the SEC, we are looking at a lot of ways to ensure that each of us at the SEC can bring our authentic selves to work and contribute fully.

This must also be about progression; we must ensure that if people want to raise their hand and get more challenging projects and move up the promotion curve, that they have those opportunities. We have set up several initiatives, some that predate me. One is called the Uncovering Task Force; it brings people together and asks what suggestions our employees have to ensure that we can enhance everybody’s ability to contribute and bring their authentic self to work. We’ve got several initiatives like that and have three or four programs of training. In the hiring that I’ve been involved in, we are really focused on ensuring that this great agency, the SEC, reflects the wealth of diversity that we have in our nation.

LLOYD JOHNSON: I’m pleased to hear that. Our readers are potentially a beneficiary of that. We are going to be working on several programs to help tell Black attorneys, both partners in firms as well as people in legal departments, that the SEC is a great place to work.

Finally, a lot of inequality has a strong economic component. That is true for Black people and other minority groups in the U.S. How much will the focus on ESG and DEI reporting from the SEC extend to look at how companies treat their workers generally?

CHAIR GENSLER: I hope your readers understand that I can’t, once again, prejudice a multi-commission project where staff are still feeding ideas up to us.

But I do see our mission as a three-part mission. Each of these disclosure initiatives or the work we’re doing on digital engagement practices, or what we’re doing on regulation best interest, are predicated to ensure that all parts of our society get that fairness, that inclusion across the basic protections of disclosure, across the securities markets. This is especially true in the context of new data analytics that can either inadvertently or purposely target certain people for some economic advantage, which may disadvantage diverse populations through those data analytics. We’re still in the middle of this project. We put out a request for comment last fall and got a lot of good input. We’re now sorting through that input, but that input can make a difference to how we approach inclusion and access throughout our society.

LLOYD JOHNSON: Thank you so much for taking the time today. I look forward to working with you and the SEC on future projects.

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LEGAL DEPARTMENTS ACCOUNTABILITY, TRANSPARENCY AND COURAGE

LEGAL DEPARTMENTS ARE AT THE FOREFRONT OF IMPROVING DIVERSITY, EQUITY AND INCLUSION (DEI) in the legal profession. But despite progress, this remains the case among only a select few, with even fewer who display the courage to drive meaningful and lasting change.

There are several reasons why legal departments are at the fore of increasing DEI in the U.S. Greater scrutiny from regulators and more concerted focus on DEI issues from shareholders are two of the main drivers.

Since the murder of George Floyd in 2020 and the resulting protests against inequality, ‘performative diversity’ has been under the microscope like never before. It is now more important than ever to not just pay lip service to the ideas of diversity – but to commit to real action. To do this, transparency and accountability are crucial. But to be ready to embrace these ideas, we need leaders who are truly courageous. We were delighted to speak to Chair Gensler of the SEC, whose agency is making greater transparency and accountability in diversity part of its commitment to reflect the changing needs of investors in this age of ESG (environmental, social and governance).

Carlos Brown and his team at Dominion Energy are an outstanding example of courage and accountability in this space. We profile their efforts in ensuring that relationships between the legal team and diverse outside partners are not merely about fulfilling quotas or checking a box, but about developing rich and rewarding relationships.

We also feature other best practices from companies such as 3M, Intel, The Home Depot and Meta.

We still see a mixed landscape among general counsel and their teams in terms of true action on DEI, but we hope that you will be inspired by the examples we share of where courage, transparency and accountability prevail.

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LEGAL DEPARTMENTS

By Catherine McGregor

Carlos Brown on using his influence to change cultures and increase diversity.

FOR CARLOS BROWN, SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CHIEF COMPLIANCE OFFICER AT DOMINION ENERGY, the reasons for becoming a lawyer were rooted in the need to do the right thing. This impulse has informed his whole career, especially his focus on accountability for DEI, as exemplified by his innovative initiative for hiring and building relationships with diverse outside counsel. Brown and his team have committed to at least 30% of legal outside spend being with diverse firms or diverse matter-responsible attorneys at majority firms and vendors. It’s this commitment to changing the dynamics in terms of how success is defined and who benefits from Dominion’s legal spend that Brown feels will be central to driving change in the broader legal profession and righting some of the inequality that has defined law – and society – for so many years.

(LEFT) PHOTOGRAPHED BY Jay McClinton

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FROM LEFT TO RIGHT: Adam Harrell, Jr., Brian Jackson, Joe Reid, Carlos Brown (sitting), Jimmy Robinson, Jr., Rudene Mercer Haynes, Jontille Ray / CREDIT Jay McClinton

Carlos Brown grew up in the Long Ridge community of Chesapeake, Virginia (also known as Cuffeeytown), a historically free Black community where his family had lived on the same land for over 200 years. As a child, he was cared for by his great grandmother while his mother was at work, and he would watch and listen to her and friends. Their conversations often turned to current and historical injustices, such as the loss of land to sharecropping and segregationist tactics. Another influence was the TV, which was frequently tuned to Perry Mason, the show about a crusading criminal defense lawyer who represented innocent defendants and ensured justice was

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done. Both had a profound effect on the young Carlos.

“I remember sensing angst and helplessness on the part of my great grandmother. As she and her friends talked about these stories, I resolved to myself that, when I became an adult, I wanted to be their voice and a champion for people like them.” These histories, spoken and shared, were testimony to a lack of access to the full rights of American citizenship that is still felt by the Black community to the present day. Brown’s early desire to champion fairness and justice was to become a defining factor in the creation of the Dominion Energy Legal Diversity Goal Plan.

LEGAL DEPARTMENTS I wanted to be a voice for people who felt like they had no voice.” —Carlos Brown A CULTURE OF BELONGING

Ownership and belonging are central to the Legal Diversity Goal Plan. The culture that Brown has created in the legal team is predicated on the idea of belonging – of being able to show up as the best version of yourself and so reach your full potential.

It’s this personal, human aspect that cuts through the empty clichés too often spouted about culture and inclusion. For Brown, it’s about making inclusion a real lived experience, which is something that all organizations need to aim for: “When we say we want to be an inclusive and diverse company: are we doing everything that we can do to make that a reality or is it just rhetoric? I want us to have that integrity – that, if we say that we’re committed to diversity and inclusion, then we need to look like the communities that we serve. There’s no excuse for failing at that.”

In his own team, Brown’s emphasis has been firmly on people and their development. But a legal team’s culture has to reflect the company in which it operates, and Brown feels that a challenge for many law departments – and the law firms they work with – is not seeing themselves as part of the broader corporate enterprise. As a company, Dominion Energy has always prided itself on talent development. Brown has spent half of his career at Dominion outside of the legal department, working in the business. He wanted to bring that wider experience to the legal team, in making its culture more people focused.

“We spend a lot of time on succession planning and talent development. We implemented a talent review process where, twice a year, we talk about everybody in the department, from entry level to the vice presidents.

We assess them not necessarily on their performance, but rather on how they are developing. We want to know: Are they thriving? How are we doing in helping them to thrive?”

For Brown, this approach speaks to the heart of the culture of the organization. Leaders must understand that an engaged and thriving culture has to be about the success and development of the team, not just its leader.

While this idea has driven the internal culture in his legal team, it has also informed the creation of the Legal Di-

versity Goal Plan. The aim of this program is to effect real change by giving more opportunities to diverse talent.

THE STATUS QUO: LOTS OF TALK BUT LITTLE ACCOUNTABILITY

Carlos Brown has heard many companies make statements about diversifying their supplier base and many general counsel talk about diversifying their external lawyers and firms. But invariably, at the end of the year, most legal departments don’t meet the goals they set for themselves. When this occurs, what do they do? In Brown’s experience, they often identify a handful of immaterial matters they can send to diverse firms to check that particular box and so declare success. However, these tend to be solo transactions, not part of long-term substantive relationships with diverse counsel.

From Brown’s perspective, the underlying issue is a lack of accountability about legal diversity among lawyers charged with allocating work to external counsel. “The challenge is: How do we require accountability from our internal team to build deep and substantive relationships with diverse counsel?”

MAKING THE CONNECTION

Despite the program’s rigor, Carlos Brown is keen to emphasize that it comes from a starting point of assuming good intentions and of fostering collaboration between the legal team at Dominion and outside counsel, whether they are diverse-owned firms or larger law firms with whom Dominion is looking to foster relationships with more of their diverse attorneys.

With the internal team, the first step was making sure that they had the resources available to be able to find diverse lawyers and law firms. The team created a database and made sure that they had access to the resources of groups like NAMWOLF (National Association of Minority and Women Owned Law Firms) and MCCA (Minority Corporate Counsel Association).

A recurring theme in Brown’s approach is the importance of human connection. At regular intervals throughout the year, events are scheduled where diverse firms and lawyers can interact with the legal team, either at Continues on p. 26

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HOGAN LOVELLS, PROUD SPONSOR OF BIHC ANNUAL REPORT

Cultivating a culture of changemakers Hogan Lovells’ commitment to leading the firm through a diversity and inclusion (D&I) first focus lens has fostered an inclusive culture attracting top talent across practices and industries. From providing mentorship to D&I billable hours, prioritization of diversity and inclusion has built Hogan Lovells a reputation of empowering its people to become changemakers taking on complex legal challenges across the global market.

Black In House Counsel relationship partner Strategically perceptive, Lillian S. Hardy founded the firm’s Crisis Leadership Practice after recognizing a market need for legal services that account for reputation management. Her practice focuses on controversies and investigations emanating from a wide array of incidents across all industries. She has a particular focus on Foreign Corrupt Practices Act (FCPA) investigations, cybersecurity and data privacy-related investigations, consumer protection investigations and anything pertaining to fraud or misconduct. Recognized by Bloomberg Law, Global Investigation Review, National Law Journal and others Lillian S. Hardy as a leader and practitioner beyond her years, Hardy has managed incidents Partner, Investigations, and investigations for clients across five continents and is regularly sought out White Collar, and Fraud/ Crisis Leadership Team for representations where both government enforcement and threat of public 'cancellation' loom large. In addition to her practice, Hardy is one of Hogan Lovells’ most senior leaders as a member of the firm’s Global Board of Directors and a member of the Americas management team. More important than these roles is her role of sponsor to underrepresented lawyers at Hogan Lovells and beyond. She is a proud graduate of Spelman College and U.C. Berkeley School of Law and is an HBCU advocate.

Advancing Racial Justice

Our vision for Hogan Lovells is to make a meaningful, positive impact in our firm and on society and to establish ourselves as market leaders in diversity and inclusion.

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African American Lawyer Affinity Group leadership

Gejaa Gobena

Partner, Investigations, White Collar, and Fraud/ Litigation Services

Having served as Deputy Chief of the Fraud Section in the Criminal Division and a Trial Attorney in the Fraud Section of the Civil Division of the U.S. Department of Justice, Gejaa Gobena utilizes his experience as both a former senior prosecutor and a private lawyer to help companies and individuals thoughtfully navigate high-stakes, bet-the-company government investigations and enforcement actions. Gobena was part of the Hogan Lovells team that successfully obtained a dismissal with prejudice for a telecom company in a $10 billion False Claims Act case involving an FCC spectrum auction and negotiated a novel $600 million criminal and civil resolution for a pharmaceutical client involving claims regarding the marketing of its principal product.

Gobena co-leads the African American Affinity Group at Hogan Lovells and actively contributes to the firm’s inclusive culture.

Shelita Stewart focuses her practice on corporate compliance, investigations, and crisis management. She has extensive experience in designing and implementing compliance programs, conducting internal investigations, defending government enforcement actions, responding to crisis events and identifying and assessing legal and regulatory risks for multinational clients of varying industry, size and geography. Stewart previously served as Senior Deputy General Counsel of Comcast Corporation, where she developed compliance programs for its global businesses and provided compliance Shelita M. Stewart counsel on mergers, acquisitions, and investments. Having started her Partner, Investigations, career at Hogan Lovells, Stewart rejoined the firm in 2021, bringing her White Collar, and Fraud/ in-house corporate experience to provide clients with actionable, practical Crisis Leadership Team and strategic legal advice. In addition, Stewart is a diversity and inclusion champion both inside and outside of the firm. She is part of the Hogan Lovells team that joined several other groups in challenging Alabama’s newly drawn political maps for violating the 14th amendment of the U.S. Constitution and its congressional map for violating Section 2 of the Voting Rights Act of 1965. Inside the firm, Stewart co-leads the Hogan Lovells African American Affinity group.

Additional leaders

Tifarah Roberts Allen Partner, Capital Markets/ Corporate Governance/ Securities and Public Company Advisory

Recognized as a rising star in 2021 by Legal 500 US, Tifarah Roberts Allen is a go-to resource to public companies and private equity funds for their diverse securities matters. Clients depend on Allen, who has a particular focus on real estate investment trusts (REITs), for advice on SEC disclosures, securities offerings, corporate governance, and Section 16 matters. Allen also has experience advising sovereign and corporate clients across several industries in the issuance of high yield and investment grade debt in public and private offerings. Most recently, she represented QTS Realty Trust in its IPO, multiple subsequent follow-on common stock, preferred stock and debt offerings and in its acquisition by Blackstone funds. In addition to her general practice, Allen leverages her experience in securities laws and with real estate clients to work closely with fund sponsors to structure, form and raise capital for real estate private equity funds.

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HOGAN LOVELLS, PROUD SPONSOR OF BIHC ANNUAL REPORT

“As a firm that thrives on collaboration across practices and disciplines, Hogan Lovells has always understood the benefits of diversity. We know that diverse teams produce better and more enduring results for our clients.”

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Ari Fitzgerald has practiced communications law at the firm for over 20 years since serving as legal advisor to former FCC Chairman Bill Kennard and leads the Hogan Lovells Communications, Internet and Media practice. His depth of experience has made him a trusted leader that several of the world’s largest communications network operators, equipment manufacturers, industry trade associations, and telecom investors turn to for strategic and legal advice. In 2021, Fitzgerald was inducted into the Wireless History Foundation’s Hall of Fame for his Ari Fitzgerald path-breaking contributions to the wireless industry – making him just Partner, Communications, Internet, and Media/ one of three lawyers to receive this honor. Fitzgerald previously led Space and Satellite the African American Affinity Group and served on the firm’s National Diversity Committee. Outside of Hogan Lovells, Fitzgerald currently serves on the board of directors of Crown Castle International and has been an active participant in the D.C. Roadshow, introducing law students to Black lawyers in Big Law.

Nate Gallon

Partner, Mergers and Acquisitions (M&A)/ Private Equity/Corporate Governance

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Russell Hedman

Partner, Mergers and Acquisitions/Private Equity/Family Office/ Sports and Entertainment

Courtney Devon Taylor Partner, Commercial Litigation/Securities, Shareholder and M&A Litigation

Russell Hedman has advised on high-stakes private equity and M&A matters, with a particular focus on ownership transactions in Sports and Entertainment.

Hedman’s work has included both the buyout and subsequent sale of the Brooklyn Nets and representation of the San Antonio Spurs on the recent investment in the team by Michael Dell and Sixth Street Partners. Outside of the sports and entertainment space, Hedman is a go-to advisor to private equity firms and family offices on a large variety of investments, acquisitions, and joint ventures. As a Colorado native, Hedman is steadfast in supporting Black businesses and investors in the state and served for many years on the board of directors of the Colorado Black Chamber of Commerce (CBCC). Extending his leadership to the firm, Hedman co-leads Hogan Lovells Denver Diversity Committee and regularly facilitates and participates in panels that advance diversity and inclusion across the legal profession.

Courtney Devon Taylor leads the firm’s award-winning Philadelphia Litigation group. Taylor has built a reputation for skillfully and strategically navigating high stakes disputes. She regularly represents clients in commercial litigation and regulatory enforcement matters and has a depth of experience representing foreign- and U.S.-based companies in securities class action defense, shareholder derivative suits, M&A-related litigation, and litigation emanating from other transactions involving contests for corporate control. Taylor has tried a variety of cases to verdict. Most recently, she defended a broker-dealer in a year’s long FINRA Enforcement action that culminated in a two-week hearing before FINRA’s Office of Hearing Officers. The hearing resulted in a complete defense verdict. She is also a member of the firm’s Sports, Media and Entertainment team and represents various entities within the sports sector. In 2021, Taylor was recognized on the 40 & Under Hot List by Benchmark Litigation.

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The Dominion Legal Diversity Plan:

Sharing the Wealth Systematically BIHC showcases some of the Black talent that is benefitting directly from the Dominion Legal Diversity Goal Plan.

THE DOMINION LEGAL DIVERSITY GOAL PLAN is based upon giving consistent

and meaningful work to diverse lawyers in large firms and to diverse-owned law firms. This has grown via the whole Dominion legal team building relationships with diverse talent. These lawyers are at the forefront of many of Dominion’s matters and Carlos Brown and his team ensure that their worth is recognized and rewarded.

VINCENT COHEN

AUBREY W. FOUNTAIN, III

SHARON GOODWYN

ADAM HARRELL, JR.

RUDENE MERCER HAYNES

MICHAEL HERRING

COLETTE HONORABLE

MAKRAM JABER

Partner Dechert Litigation

Partner Hunton Andrews Kurth Finance

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Counsel Harrell & Chambliss Real Estate

Partner McGuireWoods Litigation

Counsel Hunton Andrews Kurth Labor and Employment

Partner Reed Smith Energy/FERC

Co-Managing Partner Harrell & Chambliss Real Estate

Partner McGuireWoods Environmental/Clean Air Act

LEGAL DEPARTMENTS

BRIAN JACKSON

GEORGE JOHNSON

I.S. LEEVY JOHNSON

APRIL JONES

WELDON H. LATHAM

COURTNEY M. MALVEAUX

GODFREY T. PINN, JR.

JONTILLE RAY

JULIUS REDD

JIMMY ROBINSON, JR.

TODD RUTHERFORD

JACQUELYN STONE

DANIEL SULTON

WENDELL TAYLOR

SHARITA WHITAKER

BEN WILSON

Partner Hirschler Fleischer Real Estate

Principal Jackson Lewis Corporate Diversity Counseling

Principal Beveridge & Diamond Environmental Justice

Shareholder, Ogletree Deakins, Employee Benefits/Executive Compensation

Managing Shareholder Johnson Toal & Battiste Litigation

Principal Jackson Lewis Workplace Safety & Health

Shareholder Ogletree Labor & Employment

Partner Hunton Andrews Kurth Litigation/Anti-Trust

Founding Shareholder Johnson Toal & Battiste Litigation

Partner Harrell & Chambliss Litigation/Eminent Domain

Founding Principal The Rutherford Law Firm Litigation

Partner Smith Anderson Real Estate

Associate McGuireWoods Utility Regulation

Partner McGuireWoods Utility Regulation

Partner McGuireWoods Labor & Employment

Chairman Beveridge & Diamond Environmental

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FROM LEFT TO RIGHT: Tierra Everett; Rich Wetzel; Gina Burgin; Carlos Brown; Sharon Burr and Troy Jackson / CREDIT Jay McClinton

Dominion’s offices or at the suppliers’ own premises. For Brown, the latter option is preferable as it helps to reshape the mindset of his team.

“I find it fascinating that, in many cases, majority communities are very happy to invite minorities to their majority space, to somewhere they continue to be treated as a minority. But it’s a very different dynamic when you’re in the majority if you have to immerse yourself in the space of a diverse population and walk into their office. That experience can really illustrate for my team the capabilities of a diverse firm and the unique talents and relationships that they can bring to bear. Going into a space which was not familiar was essentially ripping the blinders off some of our colleagues who may not have ever had an experience of working or being in a space that was not designed for them. What we found was that in those circumstances, we’ve had unique connections develop. Our lawyers are developing sincere relationships with the professionals they meet at these events because they connected on a human level.”

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What’s key, though, says Brown, is that the relationships created via his program are substantial and that they result in repeat matters. Despite the outreach and effort of initiatives like events and meetings, says Brown, feedback from diverse firms was essentially, “We can’t be expected to drop everything, including work for other clients, for one-off emergency assignments if they aren’t going to result in a substantive relationship.” Brown emphasizes: “It’s crucial that general counsel realize that a relationship has two parties and that they have to see the perspective of the firms they are working with. Any diverse supplier program is pointless if it’s merely paying lip service to building meaningful working relationships.”

“Part of the philosophy behind our system is that it encourages developing deeper, repeatable relationships.

For our lawyers to reach their points goal, they have to find somebody that they trust and that they’re going to be willing to give significant work to over and over again.”

This human connection fosters relationships which drive more work to diverse attorneys. But to make a differ-

LEGAL DEPARTMENTS ence, such a change has to be truly cultural, not just about a few committed individuals. As described in the boxout, each individual team member is also responsible for the whole team’s success. “Bonuses are tied to the success of this initiative and if one team member is not pulling their weight then, potentially, everyone in the legal team will lose a portion of their bonus. This drives collaboration towards the greater goal – a key aspect of cultural change.

We now have internal colleagues cross-referring diverse attorneys to other internal colleagues.”

GETTING THE BUY-IN

While other general counsel may talk about creating a similar change to that being championed by Dominion Energy, not many have actually taken the practical steps that Carlos Brown and his team have. One of the key lessons that Brown shares with other general counsel and chief legal officers is that, as leaders, they have to take full responsibility for DEI in legal. Whilst Dominion’s focus on DEI means that Brown has been supported by his CEO, he also did not feel he had to ask for permission at every step. That dynamic was central in driving meaningful change.

“Dominion Energy’s former CEO Tom Farrell made a statement that the company needed to do better in DEI and said that he felt not advancing more in this area would be failure on our part,” explains Brown. Farrell challenged his leadership to commit to improving diversity both within their ranks and also with suppliers. “I took him at his word,” laughs Brown. “I trust people, they tell me something and I believe it! So, I developed the program and I talked to him about it once and he said, ‘Great, we need to be doing more,’ and we never talked about it again except when I gave him an annual progress update.” This attitude is shared by current CEO, Bob Blue. “In fact, Bob has challenged us to do even more!”

For Brown, the key to the program’s success was not waiting to be asked to make a change but simply doing it, then being able to demonstrate to leadership the better outcomes that have been achieved as a result. It’s something he feels other general counsel need to become more courageous about in their own leadership.

COURAGEOUS LEGAL LEADERSHIP

Given the effectiveness of Brown’s program, why have more legal leaders not adopted something similar? Brown

The Dominion Energy Legal Diversity Goal Plan: Building Internal Accountability for Hiring Diverse External Counsel Carlos Brown has no interest in assigning immaterial matters to diverse counsel to just check a box. He wants to build substantive long-term relationships with diverse external counsel. In his view, the way to implement this change is by making his internal staff accountable for engaging diverse external firms.

To drive accountability, Brown: •

Created clear goals and measures. A diversity initiative point system assigns points to internal groups for awarding matters to diverse or veteran-owned firms or when hiring minority lead attorneys in non-minority owned firms. Sustained behavioral change is driven by increasing this goal year on year.

•

Clearly communicated these goals and measures. Brown has made sure that all legal groups and attorneys at Dominion Energy are fully aware of this program. He has made clear to his team, “You have an obligation to source and identify diverse counsel. You are accountable internally to meet the goal.” He has also empowered his lawyers to switch outside counsel if existing firms are not meeting Dominion Energy’s goals. When asked how many of Dominion’s lawyers participate in the legal diversity program, Brown responded, “They all do.”

•

Aligned incentives with achievement of the goals. Bonuses in the legal team are tied to achieving the diversity goals. The diversity program goal is a departmental goal; if the department falls short, everyone loses out. This gets everyone’s attention and aligns the whole team around achieving the goal. Says Brown, “If you have an opportunity to contribute [to achieving the goal] and you don’t do it, there’s a risk that you cause the entire department to lose out on a portion of their bonus.”

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We will never be different unless we choose to do things differently. And to measure them, like any other metric in corporate America. We set goals and we hold people accountable for them...” —Carlos Brown sees it as a lack of commitment, a matter of other priorities or a fear of upsetting what might be seen as a comfortable status quo.

“They don’t want to invest the time, or they’re not willing to go elbows deep into driving this change, because they may feel there are other things that are more important, or they may feel that there’s risk. If they have great relationships with their incumbent firms and they’re taking care of them, then why frustrate that by adding this additional accountability? Relationships and friendships may have developed between clients and their lawyers and it’s hard to take work away from your friends.”

What is imperative, says Brown, is looking at the bigger picture, particularly in terms of the legacy that will persist if legal leaders do not make substantial changes in how they allocate work: “Racism has persisted in America for some 450 years because changing it is hard, because it requires people to make difficult decisions. It requires that the majority give up their own interests to improve racial dynamics, and to champion equity and inclusion.

It requires those who are of privileged status to give up some of that advantage. Fundamentally, that is where some of our colleagues are challenged: Am I going to take something away from one colleague to transfer to another? So, because I don’t want to do it, I create rationalizations, be it skill, capacity, talent, or questioning whether a pipeline exists.”

To be a really great law department that utilizes true diversity of thought and experience, and that really moves the needle on DEI, says Brown, you cannot be afraid to be different and innovative. “We will never be different unless we choose to do things differently. And to measure them, like any other metric in corporate America.

We set goals and we hold people accountable for them. If you fail, then there is a consequence. If you’re successful, there’s a reward. That’s how we’ve created this program.”

THIS CANNOT TAKE FOREVER

For programs like the Legal Diversity Goal Plan to

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thrive, majority firms need to ensure there is a pipeline of diverse talent and that this talent has a pathway to success. A key part of achieving this, feels Brown, is the need to redefine the concept of talent in the legal profession – where what counts as ‘talent’ is too often simply a reflection of personal preference.

“The vast majority of lawyers did not go to the top 15 law schools, or to an Am Law 100 law firm. We have confused talent with personal preference, then we rationalize that.”

Brown believes that what makes for a successful lawyer is more about attitude and broader skills than particular academic experiences: “I look for talented, motivated people. I can take a lawyer who was a great personal injury lawyer, but who worked really hard and built the practice, and that lawyer can become a great regulatory or corporate lawyer because it’s about their attitude. It’s their commitment to the practice and to client service that ultimately will drive their performance, not their generic legal skill set. We have this culture that defines success in a particular way, but the truth is when you look behind the veil, the lawyers that are doing the work, who are winning and are most successful for us, are not necessarily the ones that conform to this myth of what talent is.”

To ensure that diverse talent is developed in majority firms, clients have to not only insist these lawyers get work but interrogate the metrics behind that.

For Brown, the metrics are: “Who is on all my matters; who are you hiring; who are you promoting; who is getting credit for matters?” But there also needs to be a personal commitment to the success of individual diverse talent. Brown will identify three to five people from his law firms that he can mentor, monitor and sponsor.

What drives him in this is the same desire to right inequality that he imbibed as a child at the feet of his great grandmother. “There has to be some degree of resolve on the part of general counsel who truly are committed to this to say, this change will not take forever.”

LEGAL DEPARTMENTS Lessons Learned Carlos Brown offers several lessons from his own experience implementing the Legal Diversity Goal Plan at Dominion Energy to inspire other general counsel colleagues: •

•

•

GCs must own diversity for the legal department. Developing and implementing Dominion’s Legal Diversity Goal Plan came about because Brown drove it. He was emphatic in stating, “As GC, I have accountability for the goal. My bonus is at risk as well.

I ultimately have responsibility for which outside firms get engaged and get work.” He developed the point system, communicated it, and closely measured the results. If not for his efforts, it would not have happened.

This is a lesson that GCs must take the lead in driving change.

GCs need to be disruptors. Brown sees many general counsel who are hesitant to disrupt the existing system. His response is, “If you follow the same rules, you’ll get the same results. You have to disrupt the system and not be bound by the old rulebook.”

GCs need to institutionalize their DEI program and make it part of the culture.

By using a point system where token one-off matters would not satisfy the DEI goal, the Dominion program encourages lawyers to identify diverse attorneys that could develop substantive relationships with for repeat business. For example, Dominion has moved entire practice areas such as real estate and labor and employment to Black lead attorneys. Brown has encouraged both formal and informal relationship-building activities to develop bonds between diverse attorneys and his lawyers. He makes it clear both through his tracking and through informal engagement with his team that strong performance on the DEI goal will considered when evaluating candidates for promotions and incentive pay.

•

•

•

•

Companies need programs like Dominion’s to move the needle. Dominion’s Legal Diversity Goal Plan forces law firms to be more conscious and intentional regarding who they hire and assign matters to. This plan allows private practice partners to be more aggressive within their own firms by asking for and looking at demographic information. It is programs such as this that drive systemic change.

Legal departments need to put pressure on majority-owned firms. Historically, majority-owned firms might bring a Black lawyer to a meeting, but that lawyer wouldn’t get credit for the billing and wouldn’t necessarily do the work. Dominion Energy’s plan closely tracks exactly what work is sent to minority lawyers at majority-owned firms. As Brown says, “We are going to look at majority firms and assess the opportunity to identify diverse talent in these firms. This program is going to be our lever to drive it. The point system puts accountability on my internal staff.”

CEO support. It is essential for a GC to have the strong support of their CEO and the entire executive team. At Dominion Energy, Brown has built that support over time.

He was given the latitude to figure out how to create a best-in-class legal department to serve the company’s needs. He has kept his leadership informed on the department’s diversity initiatives. As a result, he is not concerned that a firm will go around him to the CEO to override a decision.

Legal departments want long-term partnerships with external firms. Brown wants his team to develop ongoing relationships with firms that share Dominion Energy’s values. He wants to see these external firms hire young Black and other diverse attorneys, and train, develop and promote them.

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Personal Perspectives RUDENE MERCER HAYNES is a finance partner at Hunton Andrews Kurth. She believes that the Dominion Energy Legal Diversity Goal Plan – and GC Carlos Brown’s focus in ensuring it is applied in a meaningful way – is creating a tangible change for Black lawyers in big law firms.

As client relationship partner (or coordinating attorney, in Hunton’s terminology), Haynes is the first point of contact for Dominion work, responsible for generating new relationships between the firm and Dominion: “I coordinate other practices to present Carlos and his team with a diverse staff in order to see if there are other areas that we could assist in.”

Having such a key role with a major client has had a significant impact on Haynes’ own career and standing within the firm: “Without the introduction of this diversity plan, it would not have been as easy a journey for me in terms of progress at Rudene Haynes the firm. I do not know if I would be in this role, front and center, without Carlos’s Finance Partner insistence that the diversity plan is the blueprint for engagement.” What struck Hunton Andrews Kurth Haynes is Brown’s commitment to ensuring that the opportunities afforded to minority lawyers on his matters are real and not just performative diversity. She recalls that, when she was offered the coordinating attorney role, Brown wanted assurance that this was not merely a title and that she would receive origination credit for their matters.

Her role has enabled Haynes to build deeper relationships across the Dominion legal team – a key metric in the diversity plan – and to introduce more minority lawyers across Hunton to the company. The heft of the Dominion Legal Diversity Plan has seen Hunton become more focused on DEI as a business advantage: “The firm sees that this makes business sense. It can’t just be a tick-box exercise any more.”

It doesn’t matter what the caliber of your degrees, experience or reputation; as a Black lawyer, there’s always the question of ‘Where is the white guy? Who is supervising this?’”—Jimmy Robinson 30 BIHC ANNUAL REPORT

CREDIT Jay McClinton

JIMMY ROBINSON, Managing Shareholder at Ogletree in Richmond, leads a large proportion of Dominion’s labor and employment matters. Robinson says that what makes Brown stand out is his absolute belief in Black excellence – with no caveats. “It doesn’t matter what the caliber of your degrees, experience or reputation; as a Black lawyer, there’s always the question of ‘Where is the white guy? Who is supervising this?’ In my team, we’re excellent at what we do, we just needed the opportunity to provide our perspective and proposals. Carlos gave us that opportunity. We showcased our talent, the resources and the deep bench that we can bring to bear. We are now a trusted partner with Dominion. They call on us and work with us hand in glove every day.”

Robinson says that it’s not only Brown’s beliefs that make him unique, but his willingness to face the consequences of putting them into action. “There are other in-house counsel who are attempting to replicate what he’s done, but he is a trailJimmy Robinson blazer.” What sets Brown apart is the realization that change, no matter how posiManaging Shareholder tive, will not always be comfortable. “Frederick Douglass said, ‘If there is no strugOgletree gle, there is no progress.’ Carlos is not afraid to take risks to achieve something important like greater vendor diversity.” Brown understands his methods may create a backlash, explains Robinson, “But as long as he’s armed with the idea that we’re making progress, he’s comfortable with that.”

LEGAL DEPARTMENTS

It Takes an Ally Most major changes for greater inclusivity have needed the participation of the majority to succeed, from women’s suffrage to civil rights and marriage equality. That’s also true with changes in the legal profession.

Here two white allies speak about working for change as part of the Dominion Legal Diversity Program.

CREDIT Jay McClinton

JOE REID, an energy and regulatory specialist, is a leading trial lawyer and a partner at McGuireWoods, one of Dominion’s key outside law firms. He shares his thoughts on why the Dominion Legal Diversity Plan is so significant and why he is working as an ally to drive it forward.

“It’s the right thing to do and it really is in alignment with the shared core values of our respective organizations. The leadership of Dominion, including Carlos [Dominion General Counsel Carlos Brown], is fundamentally committed to these principles and the leadership of our law firm is likewise committed.”

One major area of discussion for Reid and Brown was that, for the plan to result in real progress, it needed to be more than just an exercise in numbers. Says Reid, “This is about creating pipelines and opportunities. It absolutely must be a longterm plan, not short term, because it takes a lot of work and a lot of time to be Joe Reid successful in creating more DEI.” Partner Change can be hard, and Reid agrees that there is an element of urgency and McGuireWoods disruption required. “I think that leaders always need to be thinking about how to enable the success of others. We’re a much stronger organization when we have capable players on the team who do excellent work and whose diversity mirrors not only our clients but the world around us.” It might seem counterintuitive, but for Reid a key sign of success is when he himself is not the first port of call for clients, despite his extensive experience. “When a client is asking a younger lawyer – and, in this context, diverse lawyer – for advice.

They’re providing sound advice and gaining the client’s confidence. As a leader, you should just sit back and embrace that and be very proud.”

RYAN BOGGS is Director of Ethics and Compliance at Dominion Energy, and has been one of the ambassadors for the Dominion Legal Diversity Plan.

Once Carlos Brown became general counsel, the focus on diversity accelerated.

At the same time Brown promoted Boggs into a leadership role. Boggs was now a leader reporting to a Black general counsel. Around the same time the team had some diversity training. What resonated with Boggs, a white man, during the bias training where the group was shown videos of interactions, was how often he did not spot the moments of bias. “I started to think maybe there's something going on; am I unconsciously hindering the development of minorities, either within our company or through our outside counsel relationships?”

Around this time Brown assigned Boggs to work on diversity initiatives and for Boggs, “It just kind of all came together!” It was also one of the first times, as an in-house lawyer, Ryan Boggs that he was not working on a legal matter but on an initiative that had a broader purpose.

Director of Ethics and For Boggs the program’s success is centered on giving opportunities and creating Compliance Dominion Energy collaboration. One example Boggs feels is particularly noteworthy is the strategic partnerships between big firms and smaller diverse owned firms. This creates further opportunities for diverse lawyers. Some diverse owned firms can be much smaller and that can limit which matters the Dominion legal team felt that they could send them, says Boggs. “But what we've done on a few of our big projects, is we've gone to our large firms who understand our diversity initiatives, and we've told them that we want them to partner with a small firm. It’s the responsibility of a Dominion in-house lawyer to manage, “To make sure that it's balanced and to make sure that the smaller firm is getting substantive work, not just getting the leftovers.”

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WEIL, PROUD SPONSOR OF BIHC ANNUAL REPORT

Weil’s Black Partners: Leaders and Changemakers Weil has a renowned practice comprised of talented attorneys, among them nine Black partners who stand out as top industry leaders across seven practice areas and five offices.

T

he power and professionalism that the recent lateral additions of Black partners bring to Weil’s partnership and clients has made a lasting impression in the industry. Why did they choose Weil? Chantale Fiebig – who joined Weil this past year in the Washington, D.C. office – offers her reasons, stressing Weil’s top-tier litigation practice and the firm’s culture: “Weil is a global powerhouse and, as a Washingtonian, it presented a unique opportunity to grow a world-class commercial litigation practice here in the nation’s capital on an already thriving global platform. It has exceeded all of my expectations, particularly because Weil’s fun, dynamic and enterprising culture makes it a really vibrant place to practice.”

WWW.WEIL.COM/WEILS-BLACK-PARTNERS

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Chantale is an accomplished trial lawyer who partners with sophisticated clients to navigate their most important legal disputes. Her recent work has tracked some of the most visible and consequential societal and business developments, from the opioid epidemic to Cambridge Analytica to alleged conspiracies in the financial industry.

Trey Muldrow, based in New York and another of Weil’s recent high-profile hires, points to the growth and development opportunities available at Weil: “Weil’s Private Equity practice is exceptional and the platform offers me the opportunity to continue to scale my practice to an even higher level. Equally important, the lawyers and administrative staff are approachable and team focused. I am glad that I left my comfort zone and joined the Weil team.”

“This group of Black partners is having a wide impact on Weil’s business and culture. To highlight these valued members of the partnership, the firm is leading the industry by celebrating the Black partners specifically on Weil.com, in a feature devoted to their accomplishments and thought leadership.”

Trey is known for his private equity prowess and has a stellar reputation in the legal industry. Trey advises corporations, sovereign wealth groups and private equity sponsors around the world on market-leading transactions, including cross-border merger, buyout, SPAC, spinout, carve-out and divestiture transactions.

In addition to Trey, Jeff Malonson in Houston stands out in the field of private equity law, advising infrastructure funds, private equity funds, portfolio companies, boards of directors and special committees in their most important strategic transactions.

Adé Heyliger in Washington, D.C. is a partner in Weil’s Public Company Advisory Group, and was recently honored as one of Savoy magazine’s “2022 Most Influential Black Lawyers.” He regularly advises public companies, corporate boards and foreign private issuers on a broad range of SEC disclosure and regulatory matters, securities regulation, corporate governance and compliance issues. He is also Co-Chair of Weil’s global Diversity Committee.

Barry Fishley in the London office leads Weil’s London Technology & IP Transactions practice and is a partner in the firm’s Privacy & Cybersecurity group. Barry also leads Weil’s London data privacy practice. His extensive experience advising major international companies and private equity funds on a range of issues, including their technology, IP and data privacy issues, has prompted clients to appreciate his “cutting-edge knowledge and keen commercial sense.”

Next-generation leaders at Weil are standouts in the profession as well.

In Restructuring, Candace Arthur is one of the top emerging leaders in bankruptcy and restructuring in the U.S., having advised companies such as J.Crew, AMC, Sears, Insys Therapeutics and Breitburn Energy, as well as the secured lenders in Hertz – and worked on the historic Lehman Brothers chapter 11 cases.

Adam Banks is a highly regarded appellate lawyer who has represented top global companies such as Sanofi and Morgan Stanley. He works with clients to develop trial and appellate strategies, and leads their appeals in courts around the country. His talent has been recognized by Euromoney, Legal 500 and the Minority Corporate Counsel Association, among others.

Bambo Obaro in Weil’s Silicon Valley office has more than 10 years’ experience litigating complex commercial disputes in state and federal courts across the U.S., with a focus on leading trade secrets, class action and breach of contract litigation for a host of global Fortune 500 companies.

Most recently, Jannelle Marie Seales has been promoted to partner in the firm’s Real Estate practice and has represented MGM Resorts International on nearly a dozen complex multibillion-dollar real estate transactions. She also regularly works with Amherst, Alliance Bernstein and Island Capital.

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WEIL, PROUD SPONSOR OF BIHC ANNUAL REPORT

With their presence across a number of offices, this group of Black partners is having a wide impact on Weil’s business and culture. To highlight these valued members of the partnership, the firm is leading the industry by celebrating the Black partners specifically on Weil.com, in a feature devoted to their accomplishments and thought leadership. Weil hopes to make it a regular destination for everyone who wants to stay current with the firm’s growth and innovation.

Upon launching its Black partner feature, Weil paid tribute to the legendary Marsha Simms, their first Black partner, promoted in 1987. She had an iconic career at Weil: She was instrumental in

Upon launching its Black partner feature, Weil paid tribute to the legendary Marsha Simms, their first Black partner, promoted in 1987. building the Banking & Finance practice, focused on mentoring lawyers of color for decades and was a leader in public service. By giving essential career advice and serving as a role model to so many, Marsha helped Black lawyers feel welcome at Weil and reach their full potential, making it a better, smarter firm that held a distinct advantage through its diversity.

Weil’s Black partners collectively are deeply committed to ensuring a diverse and inclusive culture at Weil, and celebrate the many strides the firm and its clients have made in advancing and promoting Black lawyers. Weil welcomes the chance to partner with clients that share its goals of ensuring diversity while achieving success on the world’s most sophisticated matters.

WWW.WEIL.COM/WEILS-BLACK-PARTNERS

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Candace M. Arthur Restructuring New York

Adam B. Banks Appellate Litigation New York

Chantale Fiebig Complex Commercial Litigation Washington, D.C.

Barry Fishley Technology & IP Transactions London

Adé Heyliger Public Company Advisory Group Washington, D.C.

Jeff Malonson Private Equity Houston

Trey Muldrow Private Equity New York

Bambo Obaro Complex Commercial Litigation Silicon Valley

Jannelle Marie Seales Real Estate New York

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Engine of Change Engine No. 1’s first General Counsel, Nate Saint Victor, talks about building the Legal and Compliance team in one of the most influential firms on Wall Street.

By Frank McCoy

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N MAY 2021 ENGINE NO. 1 SHOCKED EVERYONE WHEN THE YOUNG investment firm successfully placed three of its nominees on the Exxon Mobil Corporation board of directors.

The New York Times wrote that Engine No. 1’s winning strategy “was based on the idea that failing to plan for the impact of climate change could spell the demise of a business” – and ExxonMobil’s largest investors agreed.

As many speculate about what Engine No. 1 will do next, Nate Saint Victor, its recently hired General Counsel and Chief Compliance Officer, has been hard at work building the Legal and Compliance team of what has become one of the more influential firms on Wall Street.

Saint Victor, a strategic and innovative leader, is focused on aligning with efforts to diversify corporate legal and compliance departments. In doing so, he may provide a blueprint for others to follow.

Saint Victor says his team will play a critical role in helping Engine No. 1’s business and impact grow as it partners with ethically based clients to execute its Total Value Framework – “a data-driven approach to invest-

ing that allows the firm to place a tangible value on the environmental, social and governance (ESG) actions a company takes and then tie those impacts to long-term financial value creation.”

The growth and hiring strategy Saint Victor is implementing involves recruiting the most talented individuals with diverse skills to suit the needs of a growing business.

“We must hire and cultivate top talent,” he says. “Our team’s goal is to provide thoughtful evaluation and deliver innovative solutions.”

Born in Brooklyn, New York and raised in Lake Mary, Florida, Saint Victor has had a unique professional trajectory that allowed him to gain a wide range of skills. He says he prepared himself to become a general counsel by taking some strategic risks with his career. The first was deciding to leave Davis Polk & Wardwell after four years and moving to Morgan Stanley to join a mentor from his previous firm.

During his 15 years at Morgan Stanley, Saint Victor served in several roles, including his last as an Executive Director, where he focused on counseling the prime bro-

I ask myself, ‘How do I solve problems and build things?’ The goal is to lift others as you climb so younger lawyers can showcase their talent in their own way” —Nate Saint Victor 36 BIHC ANNUAL REPORT

LEGAL DEPARTMENTS Nate Saint Victor General Counsel, Engine No. 1

kerage, securities lending and fund administration businesses. He also previously counseled the Wealth Management Division on broker-dealer and investment advisory issues, with a focus on alternative investments. Morgan Stanley gave him invaluable broad in-house legal experience and, he says, “a new world of knowledge about retail investment products.”

When Morgan Stanley’s Chief Legal Officer Eric Grossman asked him to chair the Legal and Compliance Division’s Diversity and Inclusion Committee, he viewed it as both an honor and an important career move. He gave up 20% of his portfolio in exchange for the focused pursuit of his goal – to help to increase the recruitment, retention and promotion of diverse talent, as well as driving the implementation of better practices toward advancing diversity, equity and inclusion (DEI) within an in-house Legal and Compliance Division. He was also mindful that relinquishing a portion of his business responsibilities opened up new organizational opportunities and “created spots for colleagues to step up into other positions,” including diverse talent within the division.

Saint Victor saw this move as an opportunity to practice ‘corporate’ civil rights. Over his three years as Chair, he grew membership of the Diversity and Inclusion Committee from 40 to more than 200, creating a broader platform to support authenticity and belonging. During his tenure, the division strengthened its efforts around DEI and was properly recognized for it – with more than 15 awards for the division and its members during that period.

Reflecting on one of the diversity practices he has implemented at his new firm, Engine No. 1, Saint Victor says, “When we hire outside counsel, we negotiate engagement letters that require counsel to share the commitment to DEI and ESG principles.” Next year, this approach will step up a notch as the company will seek to

apply metrics to measure this commitment and understand what progress is being made. Saint Victor believes he can hold firms to these standards because there is data tying diversity to beneficial outcomes. He maintains that more investment is needed in consultation with local communities to ensure that there is fairness in hiring and business opportunities.

When it comes to recruiting, he says, “I reject the idea that there isn’t enough diverse talent available. Inequity continues because many companies still hold onto that outdated idea.” Instead of using old practices and methodologies, Saint Victor says new solutions are needed and new questions should be asked about where and how talent is sought out. He quotes Judge Penfield Jackson, who said, “When you discover you are riding a dead horse, the best strategy is to dismount.” Companies should consider diversifying their pipeline by recruiting candidates from not only the top 20 law schools or universities, but across the broader array of higher education, including Historically Black Colleges and Universities (HBCUs). If companies adopt better practices, they will get better results.

Over the long term, Saint Victor says his aspiration is to be a change agent. “I ask myself, ‘How do I solve problems and build things?’ The goal is to lift others as you climb so younger lawyers can showcase their talent in their own way.”

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Total Value Framework

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he Total Value Framework is a data-driven approach to investing that puts a tangible value on a company’s environmental, social and governance (ESG) impacts and then ties those impacts to long-term financial value creation.

The Total Value Framework seeks to makes sense of the proliferation of ESG data by directly connecting ESG impacts to economic outcome – showing companies and investors how to utilize that data and providing a valuable tool for both capital allocation and investment decisions.

The Total Value Framework was developed

by Engine No. 1 in collaboration with Witold J. Henisz, Professor of Management at The Wharton School, the University of Pennsylvania. It integrates reliable, independent ESG data into mainstream financial reporting and attempts to understand and assess how ESG performance affects future valuations. For example, potential changes in regulation, customer or employee preferences, technological disruption, and other relevant factors all contribute to a company’s risk and growth profile.

Armed with that data, Engine No. 1 can focus on how the value delivered to stakeholders affects the value a company delivers to its shareholders. The framework can help drive Engine No. 1’s investment decisions and can help identify actions companies can take on social and environmental issues to possibly increase their shareholder value while enhancing impact over time.

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This commitment to change and hiring versatile candidates is exemplified by Engine No. 1’s new (as yet unnamed) Deputy Counsel hire, who will join the legal team in January 2022. Saint Victor explains that this person has a breadth of legal and financial services experience that will help the Legal and Compliance team deliver on its goals. The addition has a broad range of securities law and compliance experience from more than 10 years at the SEC, including time served in the divisions of examination, enforcement and litigation, as well as service in a Commissioner’s office.

It’s not just at Engine No. 1 that Saint Victor is driving change. A Georgetown University Law Center graduate, he says one of his greatest accomplishments is being a mentor for Legal Outreach Inc., an organization that provides law-related courses and activities to prepare and inspire mostly minority, and/or first-generation, New York City youth. He was also a member of the New York City Bar Association board of directors and co-chaired its diversity committee. Community-minded Saint Victor has been a leader within other organizations such as the Council of Urban Professionals, My Brother and Sister’s Keeper, the Alliance of Securities and Financial Educators and the National Association of Minority & Women Owned Law Firms (NAMWOLF).

When reflecting on Engine No. 1’s mission and vision, Saint Victor says, “We want to help the world understand how we think about investments and encourage companies to align their goals with those of employees, customers, communities and the environment.” In sync with this mandate, the firm created an academic advisory board and seeks opportunities to engage publicly traded companies through public-private partnerships.

Saint Victor believes employing the lens of corporate civil rights can help corporations to elevate possibilities for everyone with investment alignment that benefits the companies, their shareholders and their stakeholders, while also creating a sustainable future for the next generations. That is part of what he wants to accomplish at Engine No. 1: “I want to continue to build and grow my Legal and Compliance team to always be mission-oriented and solution-driven.”

These ambitions are not small, but Saint Victor’s track record suggests they are possible: to create a team that has “the innovation and talent to change the world by creating a new framework on how people think about investment.”

LEGAL DEPARTMENTS

Legal Department Best Practices Delivering on Outside Counsel DEI Efforts Four leading legal teams, 3M, Meta, Home Depot and Intel, are adopting a best-in-class approach to diversity, equity and inclusion (DEI) with their firms. Here they share their top tips on progressive approaches to DEI in outside suppliers. Most of these ideas do not require huge amounts of investment – however, they do require legal departments to rethink existing practices with a more inclusive mindset. By Carolyn Brown

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Akshay Verma Director, Head of Legal Operations, Meta

LINK BILLING AND DEI SO IT’S A ‘MUST HAVE’, NOT A ‘NICE TO HAVE’

According to Akshay Verma, Director, Head of Legal Operations at Meta, its Legal Department added diversity requirements into its Billing Guidelines in 2017. Every firm that works with Meta is required to execute and abide by these guidelines as a condition of retention, so they carry the force of a contractual obligation. Section I of Meta’s Billing Guidelines states that at least 50% of the attorneys staffed on matters must be ‘diverse’ under the ABA definition of race, ethnicity, gender, sexual orientation, gender identity or disability. Secondly, this entire group of diverse lawyers must be given high value opportunities.

FOCUS ON THE QUALITY OF THE OPPORTUNITIES

The Meta legal team defines ‘high value’ opportunities as those that provide outside counsel the ability to engage more deeply with Meta’s clients, are high profile in nature and allow outside counsel to showcase their talents and further develop client relationships. Some examples include designation as the lead counsel on matters; opportunity to argue substantive motions in court; leading client meetings; and being identified as the relationship partner. Meta insists that firms are involved with the development of its diverse lawyers, which improves the retention and promotion of that diverse talent. It’s not just about diversity, but inclusion in significant ways.

FOCUS YOUR EFFORTS WHERE MOST NEEDED

Meta has concentrated on implementing its DEI criteria with its top 40 law firms by spend. These were the sup-

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“Meta has concentrated on implementing its DEI criteria with its top 40 law firms by spend.” pliers which needed more diversity and accounted for the majority of Meta’s legal spend.

MAKE DATA THE BASIS FOR CONVERSATION AND COLLABORATION

Many of Meta’s law firms reported that they were constantly providing data with no subsequent client follow up. The legal team made it a priority to sit down with each of the 40 law firms after the first year of data collection to discuss what was in the data with context around Meta’s efforts and goals. This provided opportunities for feedback and improvement and revealed some key learning lessons in the process. It also created opportunities to collaborate and work together to increase DEI. Examples include the creation of a program for diverse first year law students before they start law school and a 2L summer internship program.

The data collected for this process doesn’t have to be captured by your legal team. There are plenty of third-party organizations who capture law firm data.

Meta suggests that you don’t exhaust your resources on the data capture unless you have that capability. It also thinks it’s important to focus on what the data tells you and what you will do with those insights.

TAKE FEEDBACK AND KEEP LEARNING

In the conversations with its outside law firms on diversity data and goals, Meta also took feedback on various topics, including when it did not live up to its own aims.

LEGAL DEPARTMENTS

Evangelina Almirantearena Vice President and Associate General Counsel, Antitrust and Commercial Litigation, Intel

PREPARING THE NEXT GENERATION OF CORPORATE ATTORNEYS

Intel has always had a number of pipeline programs to provide the company with a larger pool of qualified candidates. This includes the Law & Policy Group’s summer associate program, which allows Intel attorneys to work with and mentor diverse students from various law schools. In 2020, Intel’s Law & Policy Group hosted virtually its inaugural Technology Law Summit for diverse law students. “The goal was to introduce students to opportunities and careers in tech law, and also hopefully provide some networking opportunities,” says Evangelina Almirantearena, Vice President and Associate General Counsel, Antitrust and Commercial Litigation.

Also, as a part of its DEI efforts, Intel has committed $5 million over five years to a partnership with the law school at North Carolina Central University (NCCU), a Historically Black College and University (HBCU), to create a new tech law and policy center. This will make NCCU the only HBCU and law school in the country with a Tech Law Center that focuses on technology disparities and social justice. The partnership also entails contributing legal and strategic expertise, training, summer internships and Intel mentors for both students and faculty members.

STRIVING FOR ABOVE AVERAGE DIVERSITY STANDARDS

In 2016, Intel launched an outside counsel program that focuses on ways to encourage and incentivize law firms doing work for Intel to support DEI initiatives and to increase the diversity and inclusion of the teams that represent Intel. “We set full representation goals and we collect quarterly data from the firms and provide incentives for improvement,” explains Almirantearena.

She adds: “The company added another component to the program that sets minimum diversity standards for the equity partnership of the firms Intel does business with.”

Beginning January 1, 2021, Intel opted not to retain or use outside law firms in the U.S. that are average or below average on diversity. Under the ‘Intel Rule,’ law firms must meet two ‘above average’ diversity criteria: (1) at least 21% of the firm’s U.S. equity partners are women, and (2) at least 10% of the firm’s U.S. equity partners are underrepresented minorities, defined by race other than white/Caucasian, self-identified as LBGTQ+, disabled or veterans.

FOSTERING INCLUSIVE LEADERS AND COMPANY CULTURE

Intel’s global Diversity and Inclusion program provides a source of community for employees, empowering them to drive inclusive practices in their work environment. This unique platform provides sharing of best practices, videos, podcasts and scenario cards used to encourage critical conversations. To help foster leadership skills needed to build diverse and inclusive, high-performing teams, the Law & Policy Group rolled out a broader Intel-wide initiative – the Inclusive Leaders program. As a part of the six-part program, colleagues interested in inclusive leadership gather monthly for facilitated discussions. “The goal is for everyone to learn from each other about how to be a better inclusive leader and to have frank and open discussions about inclusion,” says Almirantearena.

Intel also has developed a set of best practices to mitigate the influence of unconscious bias in the hiring process. These practices include posting formal requisitions using impartial descriptions of qualifications for all open jobs and having diverse slates of candidates as well as diverse hiring panels.

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Ivan Fong Executive Vice President, Chief Legal and Policy Officer and Secretary, 3M

RESPONDING TO THE URGENT NEEDS OF COMMUNITIES

The importance of 3M’s racial equity, social justice and workplace inclusion endeavors was thrust to the forefront by the events of 2020. The Legal Affairs Pro Bono Committee organized efforts to respond to the urgent needs of low-income neighbors, including housing eviction expungements. Pro bono volunteers contributed more than a thousand hours in partnership with local organizations such as the Neighborhood Justice Center and Twin Cities Diversity In Practice (TCDIP). In doing so, volunteers were able to help those who could not afford legal or other services to assert their rights and protect their homes.

WHAT GETS MEASURED GETS DONE

The Maturity Model Subcommittee of the Diversity & Inclusion Committee measures the progress of 3M Legal Affairs in advancing diversity and inclusion. “What gets measured, gets done,” says Ivan Fong, Executive Vice President, Chief Legal and Policy Officer and Secretary.

Since 2014, a Maturity Model Assessment has been conducted roughly every 18 months, where members of the Legal Affairs team are asked for their observations and recommendations.

In 2020, Legal Affairs expanded its reach to include international colleagues and to use more rigorous statistical methods to analyze and interpret the outcomes. Results of the Maturity Model are used to identify opportunities for improvement in areas such as recruitment, talent pipeline, training, development, promotions, leadership and community outreach. “It gives our D&I Committee a roadmap for where to prioritize and what to focus on the following year,” says Fong.

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HOLDING LAW FIRMS AND LEGAL DEPARTMENTS ACCOUNTABLE

In an effort to leverage transparency to help hold large law firms and legal departments in the Twin Cities accountable, in late 2020 a new organization was launched, called the Minnesota Coalition of Bar Associations of Color. Fong serves as an advisor to the group, which consists of leaders of the Minnesota Association of Black Lawyers, Minnesota Hispanic Bar Association, Minnesota Asian Pacific American Bar Association and Minnesota American Indian Bar Association. With the aid of 3M data analytics, the organization sponsored a project that collected and published disaggregated DEI data from large law firms and corporate legal departments in Minnesota.

The report revealed the representation of women and racial and ethnic groups in the legal market. “The benefit is that 3M’s Legal Department can see how it fares in comparison to other departments,” Fong says.

CREATING A CULTURE OF PSYCHOLOGICAL SAFETY

A key part of 3M’s inclusion advocacy work is psychological safety programming, which has proven helpful to support the well-being of employees in Legal Affairs and across the company. “By making it psychologically safe for people to speak up and contribute, we help promote a workplace where people have a sense of belonging, where people enjoy coming into work,” says Fong. “We want everybody to feel welcomed, to have a sense of being appreciated for who they are, and to be included. We actively promote it. We talk about it. We measure it.” Workers are rated in their annual performance review on the extent to which they show inclusive behaviors.

LEGAL DEPARTMENTS

Teresa Roseborough Executive Vice President, General Counsel and Corporate Secretary, The Home Depot

BUILDING SUCCESS TOGETHER FOR DEI

Legal Department committees develop initiatives designed to support The Home Depot’s DEI efforts through various feedback channels including focus groups, ‘courageous conversations,’ seminars, webinars, benchmarking and surveys. The Building Success Together Committee, responsible for designing programs that promote cultural awareness and inclusion within the law department, has launched a series of DEI fireside chats.

“The goal is to create interactions and interviews that allow us to get to know each other better, to understand similarities and differences in our life experiences, and to have a safe forum for asking questions and talking about difficult issues,” says Teresa Wynn Roseborough, Executive Vice President, General Counsel and Corporate Secretary. In 2020, amid the coronavirus pandemic and social justice unrest, the company held a series of ‘caring conversations’ where leaders heard from people of different backgrounds within the department who shared their experiences.

DEVELOPING COMMUNITY IMPACT THROUGH PRO BONO SERVICES

The Legal Department’s Building Success Together Committee for Pro Bono works with a broad spectrum of organizations including Equal Justice Works, Lawyers’ Committee For Civil Rights Under Law, the Partnership Against Domestic Violence, Atlanta Legal Aid Society and the Pro Bono Partnership. Home Depot Legal associates provide pro bono services ranging from preparing wills to adoption papers to protective orders in domestic violence cases. Also, The Home Depot’s General Counsel hosts an annual awards program that recognizes associates’ commitment and leadership in supporting pro bono legal representation.

PUTTING DIVERSITY TOP OF MIND AT MAJORITY LAW FIRMS

The Legal Department has designed outside counsel guidelines to promote DEI and to ensure the department is intentional about how it partners with third-party legal service providers. The Legal Department measures its utilization of women- and minority-owned law firms as well as the level of diversity and inclusion within large law firms that do business with The Home Depot, notes Roseborough. In an annual survey sent to outside law firms doing work with The Home Depot, diversity demographics are requested. To the extent that these law firms are using local counsel, court reporters and other vendors, the Legal Department expects them to put diversity top of mind in recruiting and promoting talent.

CREATING AN INCLUSIVE CULTURE THROUGH ENGAGEMENT

The company’s annual Voice of the Associate Survey helps determine what level of engagement associates have and how emotionally connected they are to their jobs, to leaders and to the company. Surveys have been conducted within the Legal Department to ask people how they’re feeling. “At the end of the day, it’s all about making everybody feel included,” says Roseborough. “So, if I tell you that 90% of the associates in the law departments feel included and that they can bring their authentic selves to work, it’s a problem that 10% don’t feel that same way. We have to work to get to the place where everybody feels comfortable at work, brings their authentic selves to work and contributes effectively to the success of the department.”

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To Manage Change We Need to Measure It How Justice Bid is putting data analytics at the forefront of DEI strategy BHIC caught up with Omar Sweiss, founder and CEO of Justice Bid to explore what Justice Bid is doing to further accountability around DEI in the legal profession and why this is so crucial. By Catherine McGregor

O

Omar Sweiss

Founder & CEO, Justice Bid, LLC

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MAR SWEISS IS A NATURAL ENTREPRENEUR: HIS CREATIVE MINDSET is coupled with an awareness of injustice and the desire to drive greater inclusivity. Born in Amman, Jordan, Sweiss came to the U.S. aged three, when his family moved to the South Side of Chicago. He initially studied for a business degree, followed by an MBA. He operated his own businesses, becoming interested in the pivotal role lawyers played in many of his matters. This led him to attend law school to get his JD, followed by a year’s LLM in corporate governance. He graduated from law school at the height of the recession in 2009.

At that time, a key issue for corporate legal departments was their budget – that remains true to this day!

This led Sweiss to his next venture: Justice Bid (JB), a sourcing technology for legal departments. While running JB, Sweiss became intrigued by the insights that data could provide on all aspects of legal matters. Driven by his experiences as an immigrant and his efforts to improve inclusivity in the Chicago community, he decided to extend JB technology to assist in collecting and analyzing diversity data.

Law departments can use filters, in combination with each through their own lens. If a law department doesn’t see their

LEGAL DEPARTMENTS

To get your free account, law departments should contact op PREVIEW

Data At Large

T

Note: data shown below

he Operation Empowering Change initiative was designed to enable law departments to skip the data collection and analysis process, and significantly reduce the number of firmwide surveys that law firms have to respond to, allowing both to get to what matters – focusing on DEI collaboration and actual DEI work. The below are illustrative samples of what is possible.

Justice Bid extended its technology to focus on DEI because it was already being used as a sourcing technology for RFPs and complex e-Auctions. “Because of my passion for diversity, I wanted to add a feature to collect the diversity attributes of the proposed teams on matters that got sourced with our technology. Firms might submit their proposals, pricing strategy, but also their teams, which would include diversity attributes,” says Sweiss.

However, there were issues: most matters don’t go through the RFP process. Despite getting some of the diversity data through the RFP process, the analysis was not privy to what happens afterwards. Were there changes in the staffing? What were the hours worked by those attorneys? That led Justice Bid to build a separate diversity module, which would collect and analyze the data

related to firmwide diversity, progression, attrition, and client-specific staffing, hours billed, etc. This new diversity module is the power behind the initiative Operation Empowering Change (OEC).

OEC has two components – firmwide (Part A) and client-specific (Part B). OEC does both parts. Part A (firmwide) focuses on general diversity information for firms.

This allows legal departments to access and analyze the data related to their panel firms and/or firms they are considering adding to their panel. That firmwide diversity data is available to every corporate legal department for free, so long as the law firm has accepted the legal department’s access request. Part B is the client-specific portion, where clients ask their law firms for their specific matter data.

BIHC ANNUAL REPORT 45

Part A is free and the reason for that is to make it easy, explains Sweiss. “We want to ensure that data is not only being collected but used. This is the only way to drive change in the legal profession.” Most corporate legal departments get diversity data on their own or from an industry survey. That means: build and distribute a survey; collect, normalize, analyze and score the responses, then generate meaningful data to take back to the law firms.

That’s a lot of work. Many law firms complain that they go through the entire exercise but never receive feedback.

“I don’t think it’s because legal departments don’t want to collaborate with their law firms about this, but that the process is difficult and making sense of the data can be almost impossible. They don’t know what to take back to the law firms.” Explains Sweiss, “Based on feedback from both legal departments and law firms, we decided to make the firmwide data available for free – and not just the data, the analysis. We are presenting the data, in the aggregate, in multiple dashboards, and we are handling the time-consuming and difficult aspects of the process. We give legal departments and law firms their time back. This allows for actual conversations based on the data. It’s those conversations that will really drive meaningful change.”

Collecting DEI data is not new, so what makes OEC different? It’s the breadth of data and the ease of use,

46 BIHC ANNUAL REPORT

says Sweiss: “Our approach includes data points that a lot of corporate legal departments and law firms are not looking at. This enables legal departments to have conversations with their outside counsel about things that, prior to now, they didn’t have access to data on. This is the main way that we distinguish ourselves.”

Intersectionality can be an issue for data gathering, particularly if this isn’t approached in a sensitive manner.

Justice Bid has taken intersectionality as foundational in how data is collected. “With traditional data gathering for DEI, the same attorney can appear in different tables, so is double or triple counted. This makes it difficult to get a true assessment of diversity. We’ve cracked that nut because of the way we’ve developed our survey.”

Tying data to individuals is not necessary to gain this insight, explains Sweiss: “We imbed privacy by design into our business practices by requiring the law firms to de-identify and encode the data before providing it to us. This de-identified and encoded data is presented to approved legal departments in the aggregate only; however, we do provide filters to find the numbers and the data points that they’re looking for and can break these down not only by diversity attributes, but by role at the law firms.”

Part B is where the power of corporate legal departments as buyers comes into play. It is a bespoke analysis for each

LEGAL DEPARTMENTS Our approach includes data points that a lot of corporate legal departments and law firms are not looking at. This enables legal departments to have conversations with their outside counsel about things that, prior to now, they didn’t have access to data on.” —Omar Sweiss

legal department, covering more specific client matter-related questions. The analysis tracks the data on diverse attorneys working on the client’s matters: number of hours billed; fees; billable credits; how credits are being distributed among attorneys. “Most importantly,” adds Sweiss, “we track the meaningfulness of the work that the diverse attorneys are doing on their matters.”

It’s one thing to say ‘we have diverse attorneys at our firm’; it’s another to say that you have diverse attorneys on a client’s matters. But it’s something entirely different to say that those attorneys are being given career advancing opportunities and work. “Our data collection is shining a light on that: reporting on not only the attorneys working on matters, but what kind of work they are doing from quarter to quarter.”

THE LIMITS OF DATA

While data is central to creating transparency and measuring progress, there can be issues if we assume that all data is objective. The objectivity of data can be affected by how it is collected and the biases and the agenda of those reporting it. How is Justice Bid mitigating for those issues?

It helps that the team are data experts. “We can easily spot disruptions in the patterns of data and then interrogate different data points to see what might be causing them,” explains Sweiss. “Also, the way we’re collecting data minimizes those risks. But I’m hoping that because law firms are committed to advancing diversity and to being transparent about the data, this shouldn’t be an issue.”

The cadence of this client-specific data collection is quarterly. This means clients will be able to diagnose issues and address these earlier on. Clients will also be able to report out on how firms are doing against their own departmental goals. “This means you can go back to the firms and talk to them – not anecdotally, about what you think is happening, but using the data points that you have from our platform. They can address issues then and there, rather than waiting a full year,” says Sweiss.

It’s also informative internally, helping with change management. This is because of the ability to drill down with filters, using practice areas and geography, for example. Often, the catalyst for having more diversity on one’s matters is the behavior of in-house attorneys. Giving them the data is just as important as giving it to the law firms, as it allows members of legal departments to use DEI data as a management tool. As the founder of modern management theory, Peter Drucker, said – what gets measured gets managed.

BIHC ANNUAL REPORT 47

OCS ADVISORY BOARD Connie Brenton VP, Law, Technology and Operations NetApp

OCS

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Lisa Gilford Partner Sidley Austin LLP

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Merle Vaughn Managing Partner Major, Lindsay & Africa Gerry Williams Partner DLA Piper LLP

Operation Transformation Legal Operators is a community of leading legal operations professionals that is uniquely focused on the use of data for DEI. We spoke to CEO and Founder Colin McCarthy to ask – can general counsel and heads of legal operations work together to use data to drive meaningful change? By Catherine McGregor

L

EGAL OPERATIONS IS AN INDUSTRY THAT HAS GONE FROM 0 TO 60 and then some over the past 20 years. All areas of business are more focused on process and efficiency, and legal departments are no exception.

Given the newness of legal operations as a discipline – and the varied backgrounds of those working within it – sharing information, and creating communities within which to do so, is important. One community which sprang up organically three years ago is Legal Operators, run by Colin McCarthy, who previously worked in legal operations roles at Rubrik and Twitter. It started small.

“We had 12 members,” recalls McCarthy. “We would do TED Talks to each other, sharing information and best practices, and use case scenarios. But by month six it had grown to 80 people!” The group grew quickly and spread from San Francisco to LA and then New York, where there were 350 registrants for its most recent in-person event. The group’s Slack channel saw more than 1,200 members join in its first year.

DIVERSITY & DATA COMING TOGETHER

But where did DEI come in? It has always been a passion of McCarthy’s, and one of the early members of Legal Operators was Akshay Verma, Head of Legal Operations at Meta, whose commitment to driving meaningful change is explored in another article. “Akshay felt a

50 BIHC ANNUAL REPORT

pillar should be diversity,” explains McCarthy. “I said I couldn’t agree more, but let’s make it meaningful. That’s how we came up with the Diversity and Empowerment pillar. Not just increasing diversity – we want to actually empower people.”

One of the innovations in legal operations has been the collection, analysis and use of data to drive decision-making around legal departments’ strategies, spend and processes. But such collection and analysis is also fundamental to increasing diversity. Getting more legal operations professionals involved in the DEI strategy of their legal teams may help progression, because these are people who know how to gather, analyze and make decisions based on data. They and their companies also recognize the power of diversity.

“Diversity brings unique experiences that help businesses build technologies that are thoughtful and inclusive of all potential users,” states Rajan Gupta, Head of Legal Technology and Compliance at Meta and one of Legal Operators’ members. This synergy has been part of the rationale for McCarthy in making Diversity and Empowerment one of the pillars of Legal Operators: “We have so much data at our fingertips, and more and more of it is becoming available. Many of us in legal operations are very used to using Key Performance Indicators (KPIs). As the collection of data on a range of diversity metrics is increasing, I think that legal operations profes-

LEGAL DEPARTMENTS sionals are going to be the change agents that make the difference with diversity.”

That’s going to be a result, McCarthy feels, of the general counsel role moving more toward a C-suite position, which leaves many legal operations professionals with the role of making decisions on what the legal team’s DEI strategy will be and which outside suppliers they will hire.

That, coupled with the fact legal operations professionals are comfortable analyzing and making decisions based on data, results in legal departments being better placed than ever not just to get DEI data, but to use it for empowerment. Elizabeth Miller, Head of Legal Operations at Dolby and a member of Legal Operators, agrees: “Legal operations professionals utilize data to find opportunities, set goals and measure progress. The lack of law firm diversity that has always been obvious is now impossible to ignore when armed with the statistics.”

COLLABORATING FOR CHANGE

As part of this drive to put the legal operations community at the heart of DEI, Legal Operators has partnered with data collection and analytics firm Justice Bid on its Operation Empowering Change initiative (which is covered in a separate article). Getting this data creates a basis for the Legal Operators community to have conversations based on facts, not supposition or performative diversity.

The intention is to ensure accountability and transparency, emphasizes McCarthy. “It’s meant to be more of a carrot than a stick approach, but if clients get this information, then they’re on the same page as their suppliers and they can ask questions that need to be asked. For example, a firm might have 2,000 lawyers and only four women of color who are partners – why is that? That’s a question that should be asked.”

McCarthy and the other members of Legal Operators, who comprise some of the biggest corporates in the U.S., agree that there’s no longer any excuse for DEI information being hard to access for buyers of legal services: “There’s hundreds of millions of dollars being spent on these firms every year; clients should have access to this information. It is absolutely normal to be asking questions based on that data.” Elizabeth Miller at Dolby agrees: “The legal departments I’ve been a part of truly believe that diversity is necessary to bring the best ideas forward. We’ve dedicated a lot of effort internally to measuring, benchmarking and course correcting from

Legal Operators’ Event, Dallas, Texas

pipeline to recruiting to retention. The same should be expected of the law firms who represent us.”

DATA TO PROCESS TO ACTION

Collection is only the beginning; it’s also about listening to the stories the data tells and using those to propel change. Legal Operators’ membership will be able to use data to benchmark across suppliers, identify where there are issues, and start conversations with firms about particular data points. This could also lead to collaborations where in-house legal teams and law firms work together to create change. But this can only start with having the right information, understanding that information and using this to establish behaviors that will change cultures.

Legal operations professionals excel at creating processes. In DEI, this means combining the story that the data tells with the systematic creation and implementation of processes to change that story for the better. McCarthy and his members believe that the current interest in DEI – and the way in which this can be used by legal departments to drive change – is going to lead to more systemic improvements. Says McCarthy: “It’s going to lead to an overhaul of the whole education system, getting more access to education and making a diverse workforce mandatory. But being systematic about this is going to be key and that’s something my members in Legal Operators can certainly bring!”

One thing is for sure: the genie of data and the stories it can tell is out of the bottle for these leading legal operations professionals – and it’s not going back in!

BIHC ANNUAL REPORT 51

2022 DIRECTORY

Black General Counsel in the

BIHC 500 As their numbers grow, the BIHC Annual Report presents a look at current Black general counsel in some of the largest public and private companies.

W

HILE MANY HOPED THAT THE EVENTS OF 2020 would be the start of a sustained push for more diversity in senior hiring, the number of new Black general counsel appointments actually fell.

In 2020, seven Black women and four Black men were appointed general counsel at Fortune 500 companies and a further 17 Black individuals were appointed to the role in Fortune 501 + privately held companies. However, through September 2021, there were only three Black men and five Black women appointed general counsel at

52 BIHC ANNUAL REPORT

Fortune 500 and equivalent independent companies.

Part of this decline in appointments can be attributed to the effects of the global pandemic of Covid-19 which paused or slowed many executive job searches including at general counsel level. As BIHC goes to press there have been some notable appointments of Black general counsel within leading U.S. companies, including Vanessa Sutherland’s appointment to the role of general counsel at Philips 66. So, it may be that the trajectory for Black general counsel will continue to rise once the business environment settles down post-pandemic.

LEGAL DEPARTMENTS

HUBERT ALLEN

HARVEY ANDERSON HP

Lincoln Financial Group

CRAIG BEAZER

APRIL MILLER BOISE Eaton

Guardian Life Insurance

CARLOS BROWN

MARCUS BROWN

TONIT CALAWAY

TRECIA CANTY

DOROTHY CAPERS

MONICA HOWARD DOUGLAS

DENEEN DONNLEY

SHERI EDISON

BRIAN ELLIS Danaher Corp.

Tractor Supply Co.

BURT FEALING

RHONDA FERGUSON

KODWO GHARTEY-TAGOE

NICOLE LAMB-HALE

KIMBERLEY HARRIS

Abbott Laboratories

Dominion Energy

The Coca-Cola Company

Southwire Co.

Entergy Corp.

Consolidated Edison

Allstate

BorgWarner

Amcor

Duke Energy

PBF Energy

Cummins

KERMITT BROOKS

Xylem

NONI ELLISON

NBC Universal

BIHC ANNUAL REPORT 53

REGGIE HEDGEBETH The Capital Group

MICHAELBRYANT HICKS

CHEREE JOHNSON Dentsply

KIKELOMO LAWAL

Canadian Imperial Bank of Commerce

MARK NICHOLS Saab

THOM JACKSON

PRESTON HOPSON

Elanco

DUANE HOLLOWAY

United States Steel

Tetra Tech

Schneider International

NICOLE JONES

REGINA JONES

RASHIDA LA LANDE

NATALIE LAMARQUE

CIGNA

CHRISTOPHER LEWIS Edward Jones

CHONDA NWAMU

54 BIHC ANNUAL REPORT

Ameren

Baker Hughes

LANESHA MINNIX Flowserve

ARNOLD PINKSTON Edwards LifeSciences

Kraft Heinz

New York Life

STEPHANIE ZAPTA MOORE

BRANDON NELSON

HALIMAH DELAINE PRADO

JULIETTE PRYOR

Vistra Energy

Google

JetBlue

Albertsons

LEGAL DEPARTMENTS

KPMG

SANDRA PHILLIPS ROGERS

SAVALLE SIMS

DENISE R. SINGLETON

DEIRDRE STANLEY

VANESSA SUTHERLAND

AUDREY TILLMAN

STEPHANIE TILLMAN

VANESSA WILLIAMS

WANJI WALCOTT

CHAD WALKER

DESIREE RALLSMORRISON

ANNA RICHO

PHILLIP ROLLOCK

TERESA ROSEBOROUGH

McDonalds

TIAA

LEWIS STEVERSON Corning

ANGEL SHELTON WILLIS Sealed Air

Cargill

The Home Depot

Phillips 66

Discover Financial Services

ANNE ROBINSON Vanguard Group

Discover Inc.

AFLAC

Morton Salt

TONYA ROBINSON

Toyota

WestRock

Flower Foods

KELLYE WALKER

Eastman Chemical Co.

Estée Lauder

Kelly Services

TONY WEST

Uber Technologies

BIHC ANNUAL REPORT 55

MILBANK, PROUD SPONSOR OF BIHC ANNUAL REPORT

Developing The Next Generation of Lawyers

Patrick Campbell

Alex Romain

Patrick Campbell is a partner in Milbank’s Washington, D.C. office and is a member of the Transportation & Space practice. He moved to Milbank due to its established space practice.

The move also offered mentoring opportunities.

“That’s one of the most fulfilling parts of being at Milbank: the ability to work with a dedicated team of associates who are looking to the partners for leadership, mentoring and training, from the first time they walk in the door to when they are trying to make partner.”

Alex G. Romain is a partner in Milbank’s Los Angeles office and member of the Litigation and Arbitration Group. He enjoys the opportunity Milbank offers to practice with people who share his passion for trial law. “Litigation is a team sport. It is attractive to be with folks who are constantly finding ways to get it right; to persuade, to win, and to exonerate our clients.”

He recognizes that, as a Black partner, he can be an inspiration “not just in the context of my practice, but of working anywhere in the industry.”

This resonates with the firm’s ethos. “Firm leadership is committed to ensuring that we retain diverse talent at Milbank, but that we also work to promote diversity across the legal profession.”

Romain says the firm is committed from the top down to diversity, equity and inclusion (DEI).

“Meaningful change is different from mere action; you get fewer prizes for it, and it requires more work.”

“What I have looked to do is to be available, as well as committed to sharing my experiences, so that others can learn from my mistakes. You need to not only bring people in but to support them so that, years from now, they have a business case to become a partner.”

— Alex Romain, partner, Milbank

Kamal Nesfield

Jerome McCluskey

New York-based partner and member of the Leveraged Finance Group Kamal Nesfield played football at the University of Pennsylvania.

That team spirit is in evidence at Milbank, where he defines his practice as having “a commercial approach, with the goal of getting deals done in a way that makes all parties happy.”

New York-based partner and member of the Leveraged Finance Group Jerome McCluskey says Milbank differentiates itself “through being a transparent place with a low tolerance for showboating or a lack of teamwork.”

He recognizes the challenges of acting for clients who are themselves in the client service business. “Instead of trying to win the most points or defeat the other side, my job is to protect my client while helping them provide services to their own commercially savvy client.

When done right, it is deeply rewarding work.”

He credits the appointment of Mikeisha Anderson Jones, Chief DEI Officer, as illustrating how serious Milbank is about being an agent for positive change. “The legal sector is woefully behind on diversity. We need to hold ourselves accountable to improving percentages of equity partners of color and do a better job of building the next generation. As a firm, we are willing to experiment and bring new thinking to the issues.

This openness to try is heartening.”

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LEGAL DEPARTMENTS

DRIVING DIVERSITY WITH DATA

By Akshay Verma and Allen Lo, Meta

D

espite years of focus on the subject, diversity, equity and inclusion (‘DEI’) in the legal profession remains a significant concern. The National Association for Law Placement’s (‘NALP’) most recent report reveals that the percentage of Black or African American law firm associates surpassed 5% for the first time since NALP began collecting data in 1993.

This compares to 14.2% Black or African American in the U.S. population. While the share of associates who are Black women (3.04%) exceeded the 2009 figure of 2.93%, this means that over the past 11 years, representation of Black women at the associate level has increased by only 1/10th of a percentage point.

The percentages for Black and Latinx partners are below 1% and 2%, respectively.

BIHC ANNUAL REPORT 59

Analysis of the data with a custom, evolving algorithm allows us to compare and contrast firms and recognize high performers.

Who we measured and why With our goals and basic metrics in place, we decided to measure our top 40 US-based firms by spend to maximize our impact.

Akshay Verma

Allen Lo

Diversity in equity partnership within the largest, most profitable firms in the country continues to be a challenge. Within the legal profession, equity partners – law firm leaders and decision-makers – are widely considered role models for law students and junior lawyers, making the need for diversity of backgrounds and perspectives within this group even more critical. Regardless of whether some firms move away from the ‘equity partnership’ terminology, we need to ensure there is progression by diverse lawyers into the highest ranks of partnership.

Given the importance of diversity in leadership, Meta Legal has made a commitment to drive changes in diversity in the equity partnership ranks of those firms that provide us with legal services. This is a first step in our journey to improve diversity in the legal industry overall.

Meta Legal implemented diversity requirements for all US-based firms into our Billing Guidelines in 2017. This means that at least 33% (now 50%) of attorneys staffed on our matters must be ‘diverse’ under the ABA definition and that diverse lawyers must be given ‘high-value’ opportunities on our matters, including substantive motions practice and arguments, secondments and serving as a relationship partner.

These opportunities provide diverse lawyers with important, substantive work and visibility, and assist them with developing and expanding their portfolios.

THE META DIVERSITY ALGORITHM More than the Billing Guidelines In an effort to track our progress and ensure accountability for change, we’ve developed an algorithm at Meta.

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How we collect data To be sensitive to the high volume of data requests many firms receive, our survey uses the same diversity criteria as the American Bar Association Model Diversity Survey, which many of our firms complete annually. Mirroring the ABA Model Survey creates consistency where possible; we also added a section that requires firms to provide data related specifically to their work on Meta matters.

Factors that Make Up the Algorithm At inception, three main factors comprise the algorithm: (1) diverse staffing on matters; (2) diverse attorneys’ access to high-value opportunities; and (3) law firms’ broader DEI activities (e.g., a written diversity strategy, at least one diverse lawyer candidate in hiring decisions, etc.).

After our first year, we recognized the need to measure more directly whether we had made progress on our goal to see more diverse lawyers promoted to partnership. We subsequently added a fourth factor – the diversity makeup of the incoming partner class – as one of our measurement criteria.

We also added survey questions to better understand the diversity profile of lawyers who receive ‘origination credit’ for Meta matters. We intend to incorporate this metric into our algorithm over time.

What the data shows us In Year 1, most of our firms (30/40) satisfied our diversity requirements for staffing. The results in Year 2 demonstrated significant improvement, where nearly all firms (39/40) met our minimum staffing requirements.

This time, the average diversity makeup of the teams was 63%, a 19% increase from Year 1. The top performing firms in Year 2 distinguished themselves by providing more higher value opportunities to diverse lawyers working on our matters.

LEGAL DEPARTMENTS At Meta, we believe that holding ourselves and our law firms accountable is the way forward – and that data can enable us.”

These trends improved in Year 3, where all firms (40/40) met our minimum diverse timekeeper requirements. Again, the top performing firms distinguished themselves by providing more higher value opportunities to diverse counsel working on our matters.

Most recently, we revised our algorithm to weigh more heavily the staffing and leadership opportunities given to Black, Latinx and LGBTQ+ attorneys and gave greater weight to firms who assigned a diverse relationship partner to Meta.

GOING BEYOND THE METRICS Collaboration for Change: The importance of ‘doing more’ than giving an award Each year, our collection and scoring of diversity data culminates in the naming of a Law Firm Diversity Champion. In addition to the overall winner, we also recognize the next three highest scoring firms.

Annual Diversity Debriefs with Our Firms After our inaugural recognition event in June 2019, we embarked on a several months-long debrief conversation with each of the 40 firms that we surveyed. We shared with each firm their rankings and provided specific and actionable suggestions for them to improve. Our approach for creating accountability is based on the premise that we’re far more likely to change behavior by providing context, creating empathy and bringing our firms along on the journey. The meetings with our firms also revealed some key learning lessons.

First and foremost, almost every single firm told us that many of their clients had started to request diversity data, and that some asked for this data more than once a year. Despite these requests, there was little or nothing happening in the way of feedback or constructive conversations about the data supplied. Our firms told us that while scoring, ranking and recognition are important, understanding our long-term vision helps them to structure their own efforts around diversity.

Our firms also shared that staffing requests from clients increase opportunities for diverse lawyers. Based on this feedback, we now encourage our lawyers to make specific staffing requests for matters.

Our firms also pointed out that there had been several instances where clients were presented with a strong

diverse lawyer for a high-value matter and selected a non-diverse lawyer instead. This highlighted the need for us to create awareness in our legal department and started an important internal conversation about our own role in improving diversity in the profession.

Pipeline Programs Separate from the law firm conversations, we wanted to launch a set of initiatives that would improve the diversity pipeline for the legal profession, as well as foster additional opportunities to develop diverse lawyers.

In 2019, we partnered with our inaugural champion, Kilpatrick Townsend, to launch the Legal Scholars Program on the West Coast. This is a two-day event that gives incoming diverse 1Ls insights and a primer to law school before they start classes. We have also launched a Summer Associate Program, which gives diverse rising 2L students an opportunity to shadow a Meta attorney for two weeks while attending seminars and networking events to get an inside view of in-house legal work.

Lastly, we launched the LeaderSHIP Connections program, which pairs diverse mid-level and senior associates with Meta lawyers so the associates can further develop client relationships and deepen their understanding of our business. Our hope is that more junior lawyers are able to leverage this experience when it comes time for them to make partner at their firms.

WHAT COMES NEXT? At Meta, we believe that holding ourselves and our law firms accountable is the way forward – and that data can enable us. We’ve seen the benefit of continued iteration – the metrics we measure, the weight that we allocate to different data we collect and how we push our firms to change – as a critical component to make progress toward our goal of improving diversity within the equity partnership ranks in the AmLaw 100.

We have and will continue to learn more about our own efforts and results. We are excited to see our law firms make improvements on our metrics each year and we will continue to push them to do even better. We hope to work with other in-house departments to measure and track progress, and ensure accountability for creating more diversity and driving meaningful change in our profession.

BIHC ANNUAL REPORT 61

Verona Dorch: An Appreciation A. Verona Dorch, energy sector leader, Executive Vice President and Chief Legal Counsel at Providence Health, sadly passed away in Seattle in late February 2021. By Jodi Bartle

D

ORCH, WHO JOINED PROVIDENCE IN MID-2020 amid the global Covid crisis, had been applauded for the seamless navigation of her new role, despite the challenges the pandemic posed. Katina Thornock, VP, Senior Litigation Counsel at Providence, spoke of Dorch in the highest terms. “Verona was an insightful and dedicated colleague, leader, and friend. Her commitment to the mission of Providence and the Department of Legal Affairs and its caregivers was evident by her thoughtful and courageous leadership and demonstrated commitment to innovation and diversity, equity, and inclusion. While Verona’s time with Providence was all too short, her impact is felt to this day, and we are blessed by her service to our organization and our mission and values.”

Prior to her role at Providence, Dorch was at the legal helm of Peabody Energy for four years, and was previously at Harsco Corporation in Pennsylvania over a nineyear tenure. She also had experience in corporate and securities law following a multi-year secondment in Tokyo, Japan with Sumitomo Chemical and top-tier law firms.

62 BIHC ANNUAL REPORT

LEGAL DEPARTMENTS Dorch’s professional abilities and leadership experience over her career did not go unnoticed. She was named among the Most Powerful Women in Business 2017 by Black Enterprise magazine and shortlisted by the Financial Times for Most Innovative Legal Team and Most Innovative General Counsel in 2016. Savoy magazine named Dorch as one of the Most Influential Women in Corporate America in 2016 and she was recognized as a Pennsylvania Diverse Attorney of the Year in 2013. She was also a Fellow of the American Bar Foundation and

“Verona died young and had a lot more to give and to do, and so we wanted to ensure that she was remembered for her incredible commitment to the profession and to the community. She really was a legend. We want everyone to remember her name and her story for years to come, to continue her legacy for her children and for the broader community. We hope that young Black and brown girls will be inspired by her story and will be encouraged to live their own dreams,” says April Miller Boise.

The fund has so far raised more than $55,000, which

Verona died young and had a lot more to give and to do, and so we wanted to ensure that she was remembered for her incredible commitment to the profession and to the community.” — April Miller Boise was involved in board memberships with the Pennsylvania Chamber of Commerce, Harrisburg, Pennsylvania Public School Foundation and the YMCA. One way that Dorch’s legacy has been honored is through the Verona Dorch Memorial Fund, created to raise money for Girls Inc. of St Louis, an organization running professional and educational programs in St Louis. The donor advisor committee of the fund includes April Miller Boise, Eaton’s CLO; Rana Jewel Wright, GC of Harris Associates; and Vanessa Allen Sutherland, EVP and CLO of Norfolk Southern Corporation.

will be used each year to support a programming scholarship for five high school girls (to be known as the Verona Dorch Scholars) to participate in the Girls, Inc. St. Louis programs. The scholars will work together to identify a problem in their community and a potential solution, to help them develop teambuilding, community advocacy and engagement skills. There will also be opportunities for the scholars to engage in mentoring and career discussions with Black women GCs, enabling the GCs to learn more about the scholars and their hopes and dreams, and to answer questions related to potential careers.

The fund has so far raised more than $55,000, which will be used each year to support a programming scholarship for five high school girls (to be known as the Verona Dorch Scholars) to participate in the Girls, Inc. St. Louis programs.

BIHC ANNUAL REPORT 63

At The Top of Their Game: Black Professional Sports General Counsel

By David Moreno, Partner, Brown Rudnick Professional Sports General Counsel now face a range of new opportunities and challenges. These include:

AN EXPANDING ROLE

Some general counsel in professional sports have leveraged their range of skills into broader leadership roles such as general manager. Some general counsel have seen their roles grow and expand on the business side. An even smaller group has leveraged these experiences into seats on public and private boards.

ADVOCATES FOR SOCIAL JUSTICE

Social justice has been adopted by many professional sports players worldwide; teams and leagues are being asked to be more accountable. Sports fans and the public expect more now from their teams. What role do Black general counsel need to play in this?

CAPITALIZING ON EMERGING TRENDS IN THE BUSINESS OF SPORTS

NFTs are an increasing source of monetization for both teams and their fans. How will general counsel in sports take more of an active role on decision making around innovations like these?

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Such developments will be discussed in the Black General Counsel Roundtable: Professional Sports Chapter. All general David Moreno counsel pictured are founding members of this group.

In 2018, Black In House Counsel Network (BIHC) launched the Black General Counsel Roundtable. That group now includes more than 60 general counsels at companies worth $3 billion or more in revenue. Now BIHC is launching a network of Black general counsel in the highest ranks of the professional sports community – The Black General Counsel Roundtable: Professional Sports Chapter.

This network is intended to create a space where complex and unique issues pertaining to professional sports are discussed, and creative and proactive solutions are developed. The community is designed to offer its members opportunities to enhance their professional development through a series of quarterly roundtables with a network of supportive peers.

LEGAL DEPARTMENTS

MYKA BELL

SAN FRANCISCO 49ERS Associate Counsel

ED GOINES

ADOLPHO BIRCH

TENNESSEE TITANS Sr. Vice President of Busness Affairs and Chief Legal Officer

DAVID KELLY

SEATTLE SEAHAWKS Chief Legal Officer

GOLDEN STATE WARRIORS Chief Legal Officer

GABRIELLE MCKEE

RICHE T. MCKNIGHT

DETROIT PISTONS Associate Counsel

ULTIMATE FIGHTING CHAMPIONSHIP General Counsel

SHAMEEKA QUALLO CHICAGO CUBS Associate General Counsel

LEN BROWN

PGA TOUR Chief Legal Officer and Executive Vice President

NONA LEE

ARIZONA DIAMONDBACKS Chief Legal Officer and Executive Vice President

BOBBY PEREZ

SAN ANTONIO SPURS Chief Legal Officer and General Counsel

ELAINE STEWARD BOSTON RED SOX Vice President and Senior Club Counsel

D’LONRA ELLIS OAKLAND ATHLETICS Vice President and General Counsel

SEKOU LEWIS

DALLAS MAVERICKS General Counsel

JOE PIERCE

ATLANTA FALCONS Sr. Vice President and General Counsel

KALEISHA STUART DALLAS COWBOYS Deputy General Counsel

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REED SMITH LLP, PROUD SPONSOR OF BIHC ANNUAL REPORT

The Reed Smith Difference Liza V. Craig New York-born, Washington DC-raised Liza Craig, is a partner, the Firm’s Deputy Chair for Diversity Equity and Inclusion and a member of Reed Smith’s Global Regulatory Enforcement Group. She was inspired to practice law by her father’s impressive legal career which involved both federal and private sector service. Liza began her career by clerking for a judge at the Court of Appeals for the Armed Forces and spent nearly 15 years working for the Department of the Navy prior to joining the Firm.

She taps ESG and cybersecurity trends as those to watch, particularly regarding the way the procurement function impacts them. “We’re part of a global community and businesses need to ensure that they have the proper governance structures in place to meet the needs of their stakeholders and protect the critical information that they possess from those seeking to exploit technological vulnerabilities in this rapidly evolving space.”

Tyree P. Jones Jr. When asked what sets Reed Smith apart, Tyree Jones, chair of its Global Labor and Employment Group and member of the firm’s Executive Committee and ESG practice, points to its core values of excellence, impact inclusion, and teamwork. “We operate with one partnership across our global platform as collaboratively as possible to deliver the best client service we can.”

Growing up during the civil rights movement in a communityminded family led to Jones’ interest in law, government and public policy. He describes his practice as civil rights-related employment law with a focus on claims of discrimination, and on developing policies that help ensure DEI principles. He sees key trends for 2022 as being issues of pay equity under the umbrella of ESG, and the ways employers will adjust to the ongoing impact of the pandemic.

Terence N. Hawley Terence Hawley, partner and diversity chair for the San Francisco market, focuses his practice on consumer class action defense and complex business disputes, which he anticipates will continue to be an active area in 2022. “I’m expecting significant class action filings focusing on pandemic-related issues, privacy and cybersecurity, and false advertising, among other fields,” he says.

His long career with Reed Smith has taught him to appreciate the firm’s broad platform in terms of subject matter expertise and geographic reach. He praises the “collaborative culture among professionals within that platform to facilitate the delivery of top-tier legal services and develop long-term client relationships.”

“What differentiates Reed Smith? Steadfast commitment to our core values of integrity, excellence, teamwork and respect, innovation and impact. These values permeate everything we do as a firm and are the very foundation of our strategic plan. It is through integrity, excellence and innovation that we drive superior, equitable and authentic results for ourselves and our clients; through teamwork and respect that we build inclusive teams across our entire platform that prize our differences and excel in working together to drive success for our clients; and through impact that we strive to not only deliver on behalf of our clients and ourselves, but also support and advance the communities where we operate around the world.”

– Chauncey M. Lane, Partner

Chauncey M. Lane Chauncey Lane, Dallas-based partner, finds the greatest enjoyment in helping clients solve complex issues that affect their bottom line: “Having clients trust that I can deliver for them on a range of issues while staying focused on the overall business imperative is at the heart of my practice.”

He predicts 2022 will see increased deal activity as companies re-examine strategies adopted during the economic slowdown, “resulting in strategic acquisitions and divestitures after redirecting management resources and funds into those parts of the business with the highest growth potential.” He adds that financial buyers are racing to take advantage of favorable market conditions before the inevitable correction occurs or there is an implementation of fiscal policies by a new presidential administration.

The Black Diamond Dinner Series

More Than Just Dinners: Making Connections Easier Grow your network and your opportunities with The Black Diamond Dinner Series.

NETWORK

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he Black Diamond Dinner Series is a project to strengthen regional networks and to create a cohesive national community of black inhouse counsel who hold influential positions in law departments around the country.

At these carefully curated regional dinners of only 20 attendees, senior in-house counsel will be able to: • Meet and build connections • Be stimulated by new ideas • Share solutions and create change.

Black In-House Counsel Receptions: Networking with Likeminded Peers Increase your network and connections further by experiencing the Black In-House Counsel Receptions. These gatherings of Black in-house counsel will be held regionally in selected cities throughout the US. These receptions will be an additional opportunity for Black In-House lawyers to make connections with peers and experience the Black In-House Counsel Network.

Exclusive Events: Carefully Curated

Each reception will host numerous Black in-house counsel from that region of the US.

The dinners will allow senior Black in-house lawyers to reinforce relationships with peers in their region they already know and to extend their network with new connections.

ATLANTA – APRIL - Dinner - Reception

CHICAGO – JUNE - Reception - Dinner

NEW YORK – MAY - Dinner - Reception

SILICON VALLEY – SEPTEMBER - Dinner - Reception

These events are by invitation only and are carefully curated by the Black In-House Counsel Network, the premier network for Black corporate counsel in the US.

More Than Just Dinners: Making Connections Easier.

You can see who the other attendees at our dinners will be via the Black Diamond Portal. On the portal we upload biographies of those who attend. You will also be able to connect with other attendees via the portal.

BOSTON – JUNE - Reception - Dinner

For more information please visit: tinyurl.com/4z4yk7ah

EXECUTIVE LEADERSHIP LEADING WHILE BLACK LEADING WHILE BLACK IS DIFFERENT. This is explored in the Executive Leadership section: what are the unique challenges faced by Black leaders? Too often, Black people find not only that getting on the ladder to leadership is more difficult, but that when they do succeed, they are then held to different standards than their white peers. How do successful Black leaders navigate these issues?

While legal leadership in a general counsel or chief legal officer role might be considered the pinnacle of achievement by many lawyers, more general counsel are finding that their skills are opening the door to other executive titles. Black lawyers who have transitioned to leadership outside of legal positions share what really matters when doing so.

In the wake of racial reckoning triggered by the death of George Floyd, diversity in corporate America became a hot topic. A growing number of Black lawyers are now being tapped for board director roles. Given that boards have been traditionally averse to having lawyers in their numbers, what has changed? And will this trend continue – or even accelerate – given the increasing focus of shareholders and some regulators on board diversity?

One initiative aiming to ensure that Black talent is primed to take advantage of these opportunities is the Santa Clara University Black Corporate Board Readiness Program. One of its founders is Barry Lawson Williams, a retired corporate executive who has become an advocate for increasing Black representation at board level.

Williams shares what it really takes to get on to a corporate board and how more Black leaders can do so.

When it comes to leadership, the most visible role of all must surely be that of leading the country. President Biden’s cabinet has been lauded as one of the most diverse ever, so we take this opportunity to profile those Black lawyers who have stepped into cabinet and subcabinet level positions, both leading and serving.

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THE UNIQUE CHALLENGES OF BLACK LEADERS Despite recent, highly visible drives to increase diversity in business, Black leadership remains rare at the general counsel level. And when people of color do reach a senior position, they are still too often held to a much higher standard than their white peers. But, driven by social justice movements and the demands of a younger demographic, are we finally seeing the beginning of real and long-lasting change? By David Lindsay

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EXECUTIVE LEADERSHIP

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USINESSES THAT AVOID DIVERSITY DO so at their own peril, statistically speaking. In 2015, management and consulting business McKinsey & Company looked at financial management and top management and board of director data from 366 public companies in Canada, Latin America, the U.K. and the U.S. They found that businesses in the top quartile for racial and ethnic diversity are 35% more likely to outperform the financial medians in their national industry. The research also found that U.S. companies witnessed a 0.8% increase in earnings (before interest and taxes) for every 10% increase in senior executive leadership racial and ethnic diversity.

With stats such as these – just two of many documented business benefits of diversity – there is hope that more businesses will view the ascent of Black executives to senior leadership roles as necessary. Traditionally, progress for African Americans has come in fits and starts. But in a postGeorge Floyd world, are we on the precipice of change? Does corporate attention to social justice issues spell the end of the ‘need to be twice as good’ tendency that has kept so many Black corporate lawyers from top positions?

“There has been a lot of good talk,” says former UPS General Counsel and Chief Human Resources Officer Teri McClure, “but I’m not sure the numbers have changed the way we would want them to.” Covid has been an unfortunate, if in some ways understandable, impediment to corporations accelerating the types of initiatives that would propel more qualified Black candidates into the C-suite.

For Maria Green, former general counsel for Illinois Tool Works and Ingersoll Rand, much of the challenge rests in the assumption that a Black or minority candidate will have nothing in common with a CEO or other members of the C-suite.

“When I first went to Illinois Tool Works, the general counsel was white, male, 6’6”, blond, blueeyed, went to Choate, Princeton and Harvard Law

– a blue blood as different from me as night and day,” says Green. “But we figured out pretty early on that we had a lot of similarities. We both had long commutes, we both liked to listen to ‘Morning Edition’, we both like opera.”

Building a relationship with the general counsel starting with shared interests helped in an organization where Green had few Black peers. “I was his direct replacement.

He was always advocating for me, and I don’t think that was because I was African American, but because he saw a lot of himself in me.”

Appearing to be different from members of leadership can be a barrier, according to Green: “They look at you and they don’t see themselves.” By finding the common ground with the general counsel she would eventually replace at Illinois Tool Works, Green built a relationship of trust as both she and the general counsel realized that “what united us is a lot more important that what separated us.”

C-SUITE BLUES

Even once in position, Black general counsel often face very different expectations than their peers in the C-suite.

Black lawyers can be made to feel they have to work harder to prove they deserve their position. Their weaknesses – whether real or perceived – may be judged more harshly. The consequences of mistakes can be more severe and have long-reaching repercussions, with Black general counsel given less leeway to learn from their failures than their white peers.

“There is less of a presumption of earned position,” says Teri McClure. “There is a harsher fallout when there is a failure, with an undertone of, ‘Prove to me you deserve to be here.’”

Maria Green agrees: “When white executives make a poor decision, there is a sense of ‘that didn’t work, let’s try something else.’ With Black executives, it can be the downfall of their career. One mistake will follow that person. White individuals can have a poor performance or a poor year and it doesn’t follow them.”

Arlene Roane, a Black executive who channeled her experiences from a career in management into Redhouse Performance Consulting, recognizes the same pattern.

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You’re in a meeting, you say something, it doesn’t get acknowledged. Five minutes later somebody else says the same thing, and all of the sudden it is the best idea anybody’s ever heard.” — Maria Green

“All too often, we make a mistake and it’s catastrophic,” she says. “Other people make a mistake and it’s called the learning experience.”

This treatment plays out over the course of a career, Roane explains: “The typical scenario may be where the white, straight male with high potential gets that lead in their career relatively early. So, they’re starting in a management development program and within five to seven years, they’re already at director or senior level director, and then within 10 years, they are VP.” By contrast, “Maybe that BIPOC high-potential person is promoted within the first five to seven years, but then stays stuck at the director level. They’re not promoted to be the VP, the SVP, the EVP until another seven, eight, nine years. That is way too late in a career to develop the kind of exposure that is needed in order to compete with straight white talent at the C-level.”

Roane’s business specializes in diversity and inclusion work. She emphasizes the need to recognize the patterns that keep diverse employees from advancing in their careers. She notes that businesses tend to create additional hurdles for people of color in or seeking leadership roles.

For example, she has been helping a company seeking to formalize a sponsorship program for Black executives.

The risk with some programs is that they put the burden of work on the Black individuals. Explains Roane, “A Black executive who is seeking a mentorship to advance their career thinks, ‘I’ve got to put in all this extra effort in order to get the same promotion that [a white executive] is just going to get naturally. I have to go to these meetings, and I have to do all this development stuff.’”

Roane helps organizations take a better approach. She explains: “The breakthrough is when an organization re-examines mentoring and sponsorship and decides that

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the people who need to do the extra work are the sponsors themselves.”

Maria Green points out that white executives often do not recognize their own blind spots. “On the surface no one would believe [Black executives] are held to a different standard,” she says. “That’s where unconscious bias comes in.”

CEO SUPPORT FOR THE BLACK GC

Unconscious bias and so many other factors may make it difficult for Black general counsels to be treated like everyone else in the C-suite. But fulfillment in the role can and does happen. For Green, having a supportive CEO was the key.

Many Black general counsels may have had a similar recruiting experience as Teri McClure had with UPS: The company had a Black board member who emphasized the need for Black recruiting at a time with UPS was moving its headquarters to Atlanta – a majority-Black city. Green’s ascent to her first general counsel position, on the other hand, did not come with as much of a racial factor. “Did I feel I was held to a different standard? I didn’t, frankly,” she says. “At Illinois Tool Works, I had been there 18 years, so by the time I became the leader, I knew them well. I never felt that people believed I didn’t deserve to be there.” By the time Green went to Ingersoll Rand – a job she was recruited for – “I had been the general counsel at a larger company, so the feeling was, ‘you know what you are doing’.”

That said, there were the familiar microaggressions to face. “It is a phenomenon all Black leaders experience,” Green notes. “You’re in a meeting, you say something, it doesn’t get acknowledged. Five minutes later somebody else says the same thing, and all of the sudden it is the best idea anybody’s ever heard.” Frustrating as that is, it can be

EXECUTIVE LEADERSHIP countered by support from senior management. In Green’s case, she had the important backing of the top executive: “A CEO who would respond by saying, ‘wait a minute, that is a good idea – but Maria said it five minutes ago’.”

A conscientious CEO can do more than notice the challenges Black general counsels face – they can enact change from the top. Also important is the way younger people in an organization – talented new hires who may represent the exact opposite of the CEO in terms of power or authority – can influence change on a macro level. Teri McClure, the former UPS general counsel, points out that “There is social pressure coming from younger employees, even if not everyone in the C-suite is convinced.”

George Floyd and Breonna Taylor’s deaths and the resulting Black Lives Matter protests have helped push Black equity into a top-of-mind issue, although McClure rightfully hedges about momentum, as companies deal also with the fallout of the pandemic. “Covid has dampened companies’ activism,” she explains, while stressing there is hope organizations will pick up the charge as the pandemic subsides.

Many publicly traded corporations already cater to a younger investor/shareholder community that is more likely to base their support of a company on a broader range of measures than solely financial metrics. Such environmental, social and governance (ESG) measures cover a range of issues that includes diversity and inclusion. As a result, there is more pressure for those corporations to be seen as fair and equitable to communities, and employees, of color. “ESG has the attention of senior leadership and that has been helpful to Black general counsels,” McClure says.

“When you have Gen X employees, they want to know about diversity in recruiting,” says Green. “Everyone wants to say, ‘We are a diverse workplace.’ There is all the data showing diverse workplaces perform better than non-diverse. And everyone is focused on that, because there is so much competition for talent.”

McClure, Green, and Roane all agree on the need for corporations to cast a wider net and consider more diverse candidates – for general counsel or for any other senior role. And while a Black lawyer reaching the general counsel role may well have a lonely view in a C-suite that is likely to be majority white, doing so has benefits that go beyond personal fulfillment.

As Green found during her tenures at ITW and Ingersoll

Rand, “having a diverse person in the department created more diversity. Leaders looking for new hires might say, ‘I don’t know any African American securities lawyers,’” she recalls, “and I would say, ‘well, I know one!’ The diverse lawyers of the departments I worked in would know other diverse lawyers.”

But she counsels that it’s important for a Black lawyer to consider carefully why they are being hired: “Don’t go anywhere to be window dressing. But, if there is no African American leadership, you can do more help on the inside than the outside. If you can, go there and be the difference.”

And why be the difference? Because, despite decades of efforts to ensure Black lawyers are not treated differently,

“There is a harsher fallout when there is a failure, with an undertone of, ‘Prove to me you deserve to be here.’”

— Teri McClure Former UPS General Counsel

things have not significantly changed, and won’t until more people of color hold the general counsel role. “I started in a law firm 30+ years ago,” McClure notes. “My daughter started at a law firm last year, and she’s dealing with some of the same things I did.”

Black lawyers that have an opportunity to become general counsels and become the only Black person in a corporation’s C-suite have to step up, says McClure, “If we don’t commit to being the only person, nothing will change.

I understand that people get tired of that, but it will continue to be necessary.”

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More Than a Lawyer

Beyond the GC Role

The tumultuous events of the last 18 months have seen a drive to increase corporate diversity in the executive suite – and led to many Black general counsel being tapped to take on senior roles that go beyond just legal. Executive Search Consultant Sonya Olds Som spoke to Black leaders about their career journeys and the advice they would give to those navigating the path to the C-suite. Is being a general counsel the perfect background for a board role – or does stepping out of the legal department require a fundamental shift in mindset? By Sonya Olds Som

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NE OF THE FIRST THINGS THAT BECOMES APPARENT speaking to Black leaders is that there is no set career path. Having been nominated by President Biden into the role and confirmed by the United States Senate, Donald M. Remy serves as Deputy Secretary of the Department of Veterans Affairs. Yet his career has included roles at the non-profit National Collegiate Athletic Association, Fannie Mae and the Department of Justice, as well as in law firms Latham & Watkins and O’Melveny & Myers. It’s a career without an obvious trajectory, but one driven, Remy says, by “a passion for the work and the mission.”

He explains: “Nothing really connects to anything else, except my leadership skills were always on display.”

Group President, Lifecycle Solutions & Chief Administrative Officer at Deere & Company, Marc Howze, tells a similarly varied story. “I didn’t have a traditional legal career – I didn’t start out as a lawyer.” Howze has held multiple roles at Deere, from Associate General Counsel to successfully running a factory. He entered the legal profession while in the military, going from being a Field Artillery officer to the Judge Advocate General’s Corps.

For some, the connection between law and business felt natural from the start. Sharon Barner is Vice President and Chief Administrative Officer at Cummins, where she

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previously held the general counsel role. Prior to this, she served as Deputy Under Secretary of Commerce for Intellectual Property and sat on the Management Committee at Foley & Lardner. She explains: “Because my subject area was intellectual property, that allowed me to really think about my clients from a business perspective even as a lawyer. My focus was, ‘if we get this right, it will increase the value of your company, and have a significant business impact.’ I felt very fortunate that as a lawyer I could be involved in proactive ways to help the business gain value.”

A willingness to try different roles can be vital in building the skillset to move into leadership. Kodwo Ghartey-Tagoe, who was born in Ghana and studied in the U.S. and Quebec, leads the Office of the General Counsel at Duke Energy, where he currently serves as Executive Vice President, Chief Legal Officer and Corporate Secretary. He has held various roles in the company, including on the business side, and feels those experiences made him a better candidate for a general counsel role, as well as more able to move to other leadership positions. A broad grounding in the business ensured he was in alignment with the company’s goals: “I thought being well rounded in legal better positioned me, but it was also about the CEO’s vision of what she wanted in a general

EXECUTIVE LEADERSHIP counsel – one who understood the business and would bring some practicality to the provision of legal services. Because what’s the point of the legal advice if it’s not going to be used to advance the mission of the corporation?”

Progression may require the courage to take on roles that at first glance aren’t a promotion. Howze recounts how his progression involved accepting positions that were technically at a lower grade, as well as being willing to expand his education – in his case, going back to business school to get an MBA – in order to tackle them successfully. He has developed criteria for deciding on such moves: “My framework is: will I learn something I don’t know? Will I develop relationships I don’t currently have? Will this allow me to be impactful? Will this make me more marketable in my company, and in other places? It’s not just about the money.”

Sharon Barner, Vice President and Chief Administrative Officer at Cummins

OVERCOMING THE CHALLENGES

If this proactive flexibility can propel a lawyer beyond the GC role, what are the main challenges that come with the move – particularly for a Black individual in a landscape that remains predominantly white?

Crediting “growing up with a mom and four sisters who believed women can do anything” for imbuing her with self-belief, Sharon Barner nonetheless recognizes “the diminished expectations some people have of Black people and of women.”

She has learned it’s important to establish her capabilities from the start. “It doesn’t matter what other expectations of you are – it matters what I know I can deliver. I bring that attitude into the room straight away.”

As a young Black man from the South, and an HBCU graduate, Donald Remy also found himself facing preconceptions in his early career: “People made assumptions about my competence, and those weren’t positive assumptions,” he says. He found that focusing on commonalities and fostering relationships produced results: “You can’t force people to think differently; you have to engage with them where they are.

You have to grow a relationship of trust that can get you to a space where you’re all working together to achieve the same goal.”

The importance of building relationships came up frequently in the discussions.

This includes utilizing the unique network you may have as a Black lawyer. Explains Howze: “There are so few Black people in senior positions still, those networks can be very impactful.” It also means being willing to engage with a wide range of people – including those who might count as opposition. This is where lawyers – many of whom, after all, have been trained to argue – can excel. “I called myself the Persuader-in-Chief when I was president of our South Carolina utilities,” jokes Ghartey-Tagoe, recounting his keenness to always be the one who got to talk around whoever is on the other side of the table. “I count it as a core competency, my ability to relate to anybody.”

Barner stresses the importance of managing and mentoring junior colleagues – something law firms often don’t prepare lawyers to do. “Law firms tend to have a culture of ‘eat your young lawyers’ rather than invest in them, but I’ve always been interested in how to bring out the best in the people working for me. As a business, people are your value and differentiator.” She believes that a commitment to helping Black colleagues thrive will ensure the current push for more diverse management is a movement, not just a moment.

“Corporate America moves on very quickly. But what we have now that we didn’t have during, say, the 70s, is that there are more of us in senior positions. There are

Kodwo Ghartey-Tagoe, Executive Vice President, Chief Legal Officer and Corporate Secretary, Duke Energy

Marc Howze, Group President, Lifecycle Solutions & Chief Administrative Officer at Deere & Company

Donald Remy, Deputy Secretary of Veterans Affairs

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more of us who understand the criticality of influence and power, building diverse relationships, mentoring and sponsorship. There are more of us to open those doors for other people to walk through.”

All of the interviewees recognized the value that different perspectives bring to the C-suite. Explains Barner: “When you have diverse views at the table, you get a better work product, better outcomes and certainly a better environment.” Howze agrees: “You have lived a life that your average white colleague has not. If you’re the only Black person in the room, be a Black person in the room.

Bring that perspective to bear.” He also believes that the Black experience builds a tenacity that makes for good leadership: “We know what it’s like to be told no, to be told, ‘you don’t belong here.’”

MORE THAN ‘JUST’ A LAWYER

While those are valuable attributes, does it take a change of mindset to move beyond the GC role into other executive positions? Do lawyers need to rebrand themselves – in their own minds and those of senior management – as more than ‘just’ a lawyer?

To Marc Howze, it’s crucial to move away from the perceived idea of lawyers as the ones just there to say no: “Instead, say, ‘Here’s how you can do it. Here’s what it will take.’ That gives them options. It helps change the

ADVICE

Into a New Role

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riven by social justice movements and an overdue recognition of the need for change, many companies are seeking to move Black people into senior roles.

What advice can Sonya Olds Som offer Black GCs looking to move into a non-legal C-suite role?

• Make it clear you understand how the business works.

Says Donald Remy, “For someone to transition from the legal side, you have to consider things the way your business teammates do and help them solve problems beyond the legal issues.”

• Be willing to think and communicate differently: “I had to start thinking in bullet points,” sums up Marc Howze.

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mindset.” For Sharon Barner, that’s about bringing the skillset of a lawyer to bear in a business setting: “We’re trained in the Socratic method. We ask questions – why was it done that way? Can we change it to make it work better?”

This is echoed by Donald Remy: “You have to make yourself part of the business solution team. Make sure that you’re doing more than dispensing legal advice.

You’re dispensing practical advice, you’re dispensing risk analysis, you’re dispensing business judgment. Do that throughout your career so that people see you as a solution-oriented teammate.”

Moving into a non-legal role may mean you are leading people who have more experience on the business side than you do, which can be tricky. Approaching with a willingness to learn – one thing, as Howze points out, that lawyers excel at – is key. Howze not only expanded his formal qualifications but got hands-on experience running one of Deere’s factories, ensuring a ground-up understanding of what the business actually does. For Remy, it was important that he didn’t lean on his title for authority: “You can’t just say, I’ve got this big title, I’ve got this big set of responsibilities, you must do what I say.

It does not work that way, particularly when there may be presumptions that go against your leadership and authority. You have to say, ‘I want to learn from you.’ You have

• Treat your different experiences and perspective as a superpower, not a weakness. As Remy says, “Don’t be afraid to bring your whole self to the table.”

• Consider roles that don’t look like promotions.

Says Howze: “You might need to set your ego aside, take a step back to learn some things, demonstrate some things that you have not demonstrated before, in order to be able to go forward.”

• Ask for feedback. Explains Sharon Barner: “Women and people of color don’t have the same opportunities to fail and recover. They are less likely to be given feedback so that they can develop. I am adamant about asking for constructive ‘negative’ feedback so that I can continue to improve.”

• Build relationships at every stage of your career and leverage the network you have as a Black professional. But focus on meaningful connections: “It’s about developing relationships, not just collecting contacts,” stresses Kodwo Ghartey-Tagoe.

EXECUTIVE LEADERSHIP to listen. You have to build a team philosophy around what you all want to get done and then you become a critical component of the success and the progress of the organization.”

The more lawyers move into business roles, the more it becomes an accepted career progression. As Kodwo Ghartey-Tagoe found at Duke, there’s little resistance to such moves when there’s already an established track record: “That’s been a long-settled issue here. We’re not afraid to put lawyers in business roles, because they’ve

proven that they can do the right kind of thinking and the right kind of things to be successful.”

Sonya Olds Som is a partner in the Chicago office of Heidrick & Struggles, one of the country’s leading senior-level executive search and leadership consulting companies. She focuses on executing searches for general counsel/chief legal officer and other senior leadership roles within corporate legal departments and law firms across industries and geographies, as well as on executing board searches and providing diversity, equity & inclusion advisory services.

She spoke to leading Black figures in Government and business on their experiences and how they see the landscape for GCs changing.

CAREER ADVICE

Building Relationships, Building a Career Despite efforts to improve diversity at a senior level, any Black lawyer navigating the upper levels of the corporate world will face challenges. By Sonya Olds Som

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S SOMEONE WHOSE CAREER RELIES on an extensive and active network – placing talented candidates in career-advancing roles and helping companies improve their performance by giving them access to a more diverse pool of talent – I see every day the importance of building and maintaining relationships. It’s something the interviewees all agreed on.

Marc Howze is Group President, Lifecycle Solutions & Chief Administrative Officer at Deere & Company. He stresses the importance of fostering relationships at every stage of a career. As someone who has held multiple positions at Deere, he has built contacts in every corner of the operation, from production to sales and marketing to legal.

This makes him a stronger leader and gets better results for the business. “You can take a team of disparate people and bring them together in order to solve the most important problems we have,” he explains.

MORE THAN COLLECTING CONTACTS Donald M. Remy is Deputy Secretary of the Department of Veterans Affairs and has previously worked in government, non-profits, law firms and business, including Fannie Mae. His varied career means he’s keenly aware that “it’s important to build real relationships, mentoring and sponsoring relationships, where you can bounce things off people, where you can engage as you grow. Because you never know when you might need advice, or someone needs you to give advice, or where you’re looking to explore a different opportunity and someone in your circle has valuable insight and relationships.”

Although such relationships can pay off in surprising ways as career goals and trajectories change, they must be more than just transactional. The need to create genuine connections is core to Executive Vice President, Chief Legal Officer and Corporate Secretary for Duke Energy, Kodwo Ghartey-Tagoe: “It’s about developing relationships,

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There are more of us who understand the criticality of influence and power, building diverse relationships, mentoring and sponsorship.” — Sharon Barner

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EXECUTIVE LEADERSHIP not just collecting contacts. Relationships require time, they require investment. So maybe it’s about one person at a time in the office; when you go into a room at an event, pick one person at a time and focus on them. People love to talk about themselves – ask them questions and listen to the answers. To paraphrase Maya Angelou, people might not remember what you do or say, but they remember how you make them feel. Empathy is key in building relationships.”

He shares a tip he got from Cornell Boggs, Chief Legal Officer and Group Vice President at Coors Brewing Company. “One of the things he taught me was his practice of, when he met somebody for the first time, following up with a handwritten note. That is so impactful. I’ve been trying to do that ever since.” While to some that might seem old-fashioned, it’s a practice I’ve seen the benefits of firsthand – there is more than one person that owes their job in part to the fact that I had a card from them on my desk, which reminded me of them at just the time when an appropriate search opportunity came in.

help make better decisions and actions.”

Kodwo Ghartey-Tagoe recalls how the BLM protests illustrated that, as someone who grew up in the majority-Black country of Ghana, he had been shaped by a very different upbringing than his colleagues in the U.S. “My experience is not necessarily my Black brothers’ and sisters’ experiences. And so, I’ve got to be open to listening to them.” In turn, as an immigrant, he may approach things differently from those native to the U.S. Leaders, in particular, must accommodate a broad spectrum of viewpoints.

Says Ghartey-Tagoe: “We’ve got to make room and create space for everybody in this regard.”

EMPOWERING CHANGE

For Sharon Barner, Vice President and Chief Administrative Officer at Cummins, a career-long commitment to people development has translated into strong business leadership. Her passion for bringing out the best in those who report to her not only creates fruitful relationships but

... There are more of us to open those doors for other people to walk through. Don’t leave it to others. Commit to yourself that you are going to make a difference.” — Sharon Barner GOOD RELATIONS MAKE GOOD LEADERS

Donald Remy feels a key part not just of building relationships but of leadership is “being open minded. Listen to your colleagues’ perspectives, just as you’d expect them to listen to yours. I don’t care what your role is, I don’t care where you sit in the organization or your race or your gender or your LGBTQ+ status. I want to know what you’re thinking. I want all those thoughts together. I’ll be responsible for that final decision, but I need to have all of those data points from a diverse set of advisors to make a good decision.” It’s also about recognizing the need to work together. Says Remy, “Collaboration is critical to your success. Nobody does this on an island.”

Humility also is vital. Explains Remy: “You have to stay humble and recognize that everyone has a voice that should be heard. Everyone’s perspective can be useful: can

also makes good business sense. “For any business, people are your value and differentiator.”

But such investment in relationships can also be an engine to bring about real and lasting change. Barner believes that Black leaders can use their influence to make sure the current drive for diversity in management doesn’t become another false start, consigned to history once the issues fade from the headlines.

“Corporate America moves on very quickly, but here’s the thing we have now that we didn’t have in the 70s: there are more of us in these positions. There are more of us who understand the criticality of influence and power, building diverse relationships, mentoring and sponsorship. There are more of us to open those doors for other people to walk through. Don’t leave it to others. Commit to yourself that you are going to make a difference.”

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COVINGTON & BURLING LLP, PROUD SPONSOR OF BIHC ANNUAL REPORT

Protecting Civil Rights

Senior partner and former Attorney General Eric Holder and White Collar Defense and Investigations practice group Vice Chair and partner Aaron Lewis discuss how Covington helps address risks related to racial discrimination and bias in the corporate world through civil rights audits and investigations.

Why do you think companies are focusing now on civil rights audits?

Eric Holder advises clients on complex investigations and litigation matters, including those that are international in scope and involve

significant regulatory enforcement issues and

substantial reputational concerns. Eric rejoined the firm after serving for six years as the 82nd Attorney General of the United States.

Eric Holder (EH): The evidence is clear at this point that the businesses that have undertaken assessments — AirBnB and Starbucks among them — are better off for having done so. We’ve all heard the saying, “What gets measured gets done.” Businesses can, and should, evaluate how they’re doing with respect to issues of equity and social responsibility, both within their own workforces and in the larger communities they serve. These assessments can be an important component of that work.

How does Covington approach these types of audits: is there any difference between these and traditional investigations?

Aaron Lewis (AL): We approach these projects focused on building the strongest possible factual basis for our conclusions and recommendations. We develop facts objectively and thoroughly, we evaluate risks thoughtfully, and we recommend remedial measures or enhancements as warranted. It’s just that the surface of risk that we’re evaluating in this space is not just False Claims Act risk, not just Foreign Corrupt Practices Act risk, it’s really this set of emerging norms about whether or not your people feel like they can show up at work, be treated fairly and thrive and have an equal opportunity to rise.

“We approach these projects focused on building the strongest possible factual basis for our conclusions and recommendations.”

— Aaron Lewis

Have you been surprised by the commitment companies are making to these issues?

AL: When I graduated from law school many years ago, I don’t think that companies were nearly as focused as they are now on ensuring that all of their workers have an equal chance to thrive and advance. But over the last few years, it’s become clear that the boards that engage us and the law departments that reach out to us are unwilling to tolerate conduct that pushes people from underrepresented backgrounds out of the mainstream experience of those businesses.

That’s a remarkable evolution. And it happened really, really fast.

How do you feel about leveraging Covington’s deep-bench of skilled attorneys to advance social justice in this practice?

EH: This isn’t what you’d expect necessarily from a big, established, unbelievably credentialed law firm. We’re doing things here that I think are societally beneficial. And all of this work really is consistent with what I think lawyers at their best, law firms at their best, can do.

Aaron Lewis is a leader of the firm’s Institutional Culture and Social Responsibility practice and Vice Chair of Covington's White Collar Defense and Investigations practice group. In addition to investigations and risk assessments related to alleged discrimination or bias, Aaron represents clients in sensitive, high-stakes government investigations, internal investigations, and regulatory enforcement matters. Aaron also is an Assignments Partner and serves as one of the Black Lawyer Affinity Group Co-chairs.

GCs on

Boards As efforts to increase diversity on corporate boards intensify, Black general counsel and chief legal officers have an opportunity to be among the top candidates selected to serve as board directors. Frank McCoy looks at why GCs are suited to these roles, and how Black GCs can take advantage of these new opportunities.

By Frank McCoy

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EXECUTIVE LEADERSHIP

A

LTHOUGH PROGRESS IN GETTING BLACK INDIVIDUALS appointed to boards has been sluggish at best, a significant boost in appointments in 2020 and recent pressure from regulators and institutional investors has many hoping for real progress.

BIHC research shows that there were 21 current Black general counsels or chief legal officers serving on boards of Fortune 500 companies in 2021. What is crucial now is examining how that number can be maintained and expanded upon.

Cynthia Lee Dow, an executive search and assessment consultant at Russell Reynolds Associates, says that when

worked in multiple industry sectors and/or at large law firms, or have performed government service. That array of experiences shows depth and breadth and is attractive to most boards.

Black board members also have “the ability to ensure that management lives up to its stated diversity goals and objectives. That’s part of the proper oversight of management, as diversity of the workforce is and likely will continue to be a strategic imperative,” says Ellis.

April Boise is Executive Vice President, Chief Legal Officer at the Eaton Corporation, and advises Eaton’s board and leadership team. She was appointed to the board of Trane Technologies in 2020.

It has been exciting to see greater board of director diversity and to see Black general counsels and chief legal officers gain more opportunities to serve on public boards” — Cynthia Lee Dow general counsels and chief legal officers are selected to serve on boards, the chosen candidates are often those with the broadest skillset coupled with diversity of background, perspective and experience. Boards are keen to increase their environmental, social and governance (ESG) and diversity, equity and inclusion expertise (DEI), and sometimes will look for general counsels that also have corporate affairs or other types of experience in addition to legal.

“It has been exciting to see greater board of director diversity and to see Black general counsels and chief legal officers gain more opportunities to serve on public boards,” Dow says.

Brian Ellis has been Senior Vice President and General Counsel of the Danaher Corporation since 2016. He was appointed to the board of the Entergy Corporation, an integrated energy company, in 2020. Ellis says Black general counsels possess multiple attributes that are critical on a corporate board. Many Black general counsels have

Boise, who has a business degree in accounting and finance, says that general counsels with MBAs may also be seen as board assets and potentially strong candidates for audit committees. She notes that lawyers are known to be logical, strategic thinkers and problem solvers. GCs and CLOs also understand the board directors’ role versus management, which can help communication between the two.

“General counsels have been in boardrooms and committee meeting environments for a very long time – more often than most other corporate executives. These individuals have broad responsibilities and deep knowledge of strategy, enterprise risks and board governance,” explains Boise.

There is no denying the challenges that Black GCs face when stepping into board positions (elsewhere in this report, we look more closely at the different – and often far harsher – expectations Black candidates may face when moving into leadership roles), but pressure for change is mounting.

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Black Attor

EXECUTIVE LEADERSHIP

NAME

The Rise of Black General Counsel on Boards

By Melba Hughes

Gone are the days of considering only friends and colleagues for your board’s open seat.

The need to increase diversity in corporate America has forced boards to cast a wider net to find sophisticated leaders who offer new perspectives beyond the traditional profiles of CEOs and CFOs. General counsel are eminently qualified for board roles, but are often overlooked as ‘just a lawyer.’ But companies are waking up to the idea that lawyers, especially general counsel, are an excellent source of talent. Public companies’ Nominating and Governance committees and CEOs are actively seeking people of color to add diversity to their boards. This means that this is an opportune moment for Black general counsel to move into board roles.

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WHY GENERAL COUNSEL?

Nominating and Governance committees are typically looking for new directors who have board and leadership experience and are able to think strategically. The general counsel is typically seen as a business partner and the leader of the legal function. But they also serve as advisors and partners to the rest of executive team. General counsel have extraordinary board experience gained from being active in board meetings, seeing a wide range of issues and how to manage them.

Many general counsel went to the best schools and trained in leading law firms. While they started with expertise in one or two areas of the law, as in-house lawyers they broaden their skillsets, develop increasing business acumen and gain a greater understanding of the risk appetite in various companies. They also develop their own leadership styles.

Boards are noticing that the general counsel community is filled with trained talent – and they are impressed by what they see.

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TRENDS

According to an analysis by ISS Corporate Solutions (ICS), from July 1, 2020, through May 19, 2021, 32% of all newly appointed directors were Black. As of May 19, 2021, Black directors make up 10.6% of S&P500 directorships.

As boards diversify, they are tapping more Black female than male general counsel. Partly this is so companies can address gender and racial diversity at the same time, though Black men should not be overlooked, as there are a number of board-ready Black men general counsel. These lawyer directors are not just bringing visible diversity to the table; they are leveraging their work as an organization’s risk manager and strategic advisor to bring new ideas to the boardroom.

GETTING THE FIRST BOARD ROLE

Getting your first board role will always be the most difficult. My biggest tip: Do not overlook your own network. Make it known that you are looking for a board role and enlist the support of board members you know. While search firms play a big part in expanding the pool of candidates for public companies, many boards hire through referrals. There hasn’t been any noticeable slowdown in board recruiting due to Covid-19. Openings are happening, and people are aware of the need to diversify the boardroom. My experience tells me that Black general counsel on boards is a trend that is here to stay.

Melba Hughes is a partner at Major, Lindsey & Africa and the Executive Director of In-House Counsel Recruiting.

She is also the National In-House Practice Diversity Leader. Hughes shares her insight into the increasing opportunities for Black general counsel to move into board roles.

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Gena Ashe Monica Azare Kamil Ali- Jackson Sharon Barner Paula Boggs April Miller Boise Sharon Bowen Denise Cade Tonit Callaway Pamela Carter Kimberley Chainey Paulette Dodson Sarah Dodds-Brown Sheri Edison Brian Ellis Ken Frazier Maria Green Jason Groves Reggie Hedgebeth Colette Honorable Zabrina Jenkins Jeh Johnson Joia Johnson Nicole Lamb Hale Charisse R. Lille George Madison Tekedra Mawakana Singleton McAllister Teri McClure Ron McCray Cheryl Mills Lanesha Minnix Stacey Mobley Roderick Palmore Richard Parsons Deval Patrick Sandra Phillips Rogers Juliette Pryor Desiree Ralls Morrison Anna Richo Teresa Roseborough Kim Rucker Teresa M. Sebastian Zuhairah Scott Washington Teresa Sebastian Rodney Slater Sherrese M Smith Dierdre Stanley Vanessa Allen Sutherland Deborah H Telman Larry Thompson Leslie Thornton Reginald Turner Kellye Walker Paul Williams Barry Lawson Williams Keith Williamson Ben Wilson Andrea Zopp TOTALS

* Attorneys currently serving one, three, or

rneys Serving as Directors CURRENT EMPLOYER Anterix Board Position Aclaris Therapeutics, Cummins Multiple Boards Eaton Intercontinental Exchange IDEX Borg Warner Multiple Boards Aptor Alight Solutions American Express Amcor Danaher Merck Multiple Boards Medifast The Capital Group Reed Smith Starbucks Paul, Weiss Multiple Boards Cummins CRL Consultants Redwood Trust Waymo Multiple Boards Multiple Boards Multiple Boards Multiple Boards Flowserve HP Multiple Boards Multiple Boards Multiple Boards Toyota North America Albertsons McDonalds Cargill Home Depot Multiple Boards Dominion Asset Group Five Below Multiple Boards Multiple Boards Paul Hastings Estee Lauder Phillips 66 Organon Multiple Boards Multiple Boards Verizon Eastman Chemical Multiple Boards Multiple Boards PPL Beveridge & Diamond World Business Chicago

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• 9BIHC ANNUAL 2 2 85 REPORT

CHANGING LIVES, ONE PLACEMENT AT A TIME. Major, Lindsey & Africa is proud to be changing lives and the legal community one placement at a time.

In 2021, our U.S. In-House Counsel Recruiting team placed 465 in-house lawyers into new roles, of which 25% were diverse. Included in this ad is a representative selection of these placements we made last year.

We are committed to improving diversity, equity and inclusion in leadership roles and on legal teams by presenting talented diverse candidates to our clients. We build relationships with diverse attorneys and support prominent organizations that promote diversity in the legal profession. We are proud of the progress being made and possibilities the future holds.

Lois Bingham

Daynor M. Carman

Nicole Clement

Libbey Inc. SVP, General Counsel & Corporate Secretary

Possible Finance VP, General Counsel

Beacon Communities LLC General Counsel

Danielle Cooper Daughtry National Urban League General Counsel & SVP, Legal Affairs

Ona Dosunmu

Joi Garner

Sybil Hadley

Mustafa Hersi

National Association of College and University Attorneys President & Chief Executive Officer

The New York Racing Association Inc. SVP, General Counsel & Corporate Secretary

Southern Poverty Law Center General Counsel

RagingBull.com Chief Compliance Officer

Kendall Isaac

Natasha Luddington

Desiree Ralls-Morrison

Nate Saint Victor

Clark University VP, General Counsel & Secretary

Fulton Financial Corporation SEVP, Chief Legal Officer & Corporate Secretary

McDonald’s Corporation EVP, General Counsel & Corporate Secretary

Engine No. 1 General Counsel & Chief Compliance Officer

Brendan St. Amant Synlogic, Inc. VP, Head of Legal

Marquitte C. Starkey Vanessa Allen Sutherland The University of the South VP & General Counsel

Phillips 66 EVP, Legal, Government Affairs, General Counsel & Corporate Secretary

MLAGLOBAL.COM

Melba Hughes Partner, Executive Director & National In-House Diversity Practice Leader melba@mlaglobal.com office: +1.404.601.1618 mobile: +1.404.664.3011

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Margot Jackson Managing Director, In-House Counsel Recruiting majackso@mlaglobal.com office: +1.949.432.3295 mobile: +1.626.991.7071

Vernon Jordan: A Life Lived Making A Difference Vernon Jordan, civil rights activist and Washington, D.C. power broker, was a man who lived his life in headlines. Former President Clinton called him a “wonderful friend” and, on his passing at age 85 in Washington in early March 2021, tributes flooded in from such luminaries as former President Barack Obama and House Speaker Nancy Pelosi.

By Jodi Bartle

B

UT JORDAN’S LIFE WAS ALSO ONE LIVED IN THE MARGINS. Without drawing attention to it, he worked tirelessly to wield his influence and power to enable young Black lawyers to rise up and be given a shot at becoming something more. These were often small gestures, but small gestures from Vernon Jordan were more like those of a giant.

Leslie T. Thornton, retired energy company general counsel, sitting corporate director and author, recalls meeting Jordan for the first time during the presidential transition of ‘92. “I was literally in the volunteer pool, and somebody said to me I needed to find a way to meet Vernon Jordan and that he needed to know who I was. He was like God for young Black lawyers like me.” Thornton was assigned to Jordan as a driver for an appointment at the FBI, but Jordan ended up driving her there himself.

“He introduced me to people at the FBI as ‘a diamond hotshot lawyer’ and said they would do well to remember me.” He asked for her resume at the end of the day, which directly led to her employment with the Clinton administration. Thornton credits Jordan’s influence and his long-term support of her as a foundation that impacted her throughout her career. “Anything I did that helped others? A lot of that came from what I learned from Vernon,” she says.

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EXECUTIVE LEADERSHIP Dr. Wayne Frederick, President of Howard University (Jordan’s alma mater), also remembers Jordan’s mentorship, noting that he leaves behind a legacy of vast and immeasurable impact, “not only because of all the work he did as an individual, but also because of the countless people he mentored and influenced throughout his life.” A true mover and shaker, Jordan is likened by Frederick to a chess player, albeit one who cared just as much for the pieces he moved as the ultimate goals he moved them for.

“He never caused people to act by force or guile, but with love and truth. Mr. Jordan treated me like a son and showed me love for reasons that I will never understand but will live the rest of my life trying to deserve. He helped persuade me to become president of Howard University, an institution that he loved and cherished and worked so hard to improve.”

Vernon Eulion Jordan Jr.’s bio reads like a fictional story. He was raised in segregation-era Atlanta to a postal worker father and a catering business-owner mother. He began his civil rights career after graduating from Howard University School of Law in 1960 and was only in his 30s when selected to head the National Urban League, holding that post when he survived an assassination attempt in 1980, nearly dying on the operating table and undergoing six surgeries. Jordan become a lawyer-lobbyist at Akin Gump and went on to serve on more than a dozen corporate and non-profit boards.

Lloyd Johnson, CEO of Chief Legal Executive and founder of the Minority Corporate Counsel Association (MCCA), added his thoughts in appreciation of Jordan.

“Without Vernon Jordan, there would be no MCCA. Everybody mentors somebody. When MCCA was launched in 1996, our first event was highly successful because Vernon paved the pathway with all of the key law firms in Washington, D.C., the site of the first dinner. As the founding executive director, through Vernon, I had access to any executive in the Fortune 500. In addition to providing this access, he inspired talking points through stories, humor, and at times, tough love. His grit, wisdom and foresight are woven into the DNA of many people and, more importantly, many organizations.”

Despite this high level of professional and personal achievement, Leslie Thornton remembers Jordan as a humble man. “There are literally countless stories like mine, but Vernon never told people how he helped me. He unselfishly lifted others up. He believed that was his charge.”

Meta’s Strategic Communities Program Manager, Media Partnerships, Michelle Mitchell, remembers Jordan as

being “the coolest person in the world, who, even though he was getting older, was still someone who just ‘got it,’ without a wrinkle or a falter. He was funny, he was a storyteller, and he taught me that if you find yourself at the table, then you really ought to be there.” Mitchell says Jordan encouraged her to make the move into tech when she first considered her role at Facebook. “Mr. Jor-

AUSTIN, APRIL 9, 2014 — Mark Updegrove, director of the LBJ Presidential Library, with former President Bill Clinton and Vernon Jordan, former adviser to President Clinton, at the Civil Rights Summit.

Photo by Lauren Gerson.

dan helped me see for myself all that is possible, in every space. He pushed me to take risks.”

Robert Williams, Managing Counsel at Walmart, fondly remembers his time spent with Jordan, whom he describes both as “a gentleman” and “a giant of a man.” Explains Williams: “He would often be in the company of Presidents, CEOs and the like, but he always made time for those of us – even at junior attorney level – who were up-and-coming. He was committed to our growth and development. When I worked with him at Akin Gump, every Friday we would have a touch base with him and other senior members within the firm to talk about legal matters but also issues of the day. The impact of those hours and the wisdom he imparted was something we all really cherished.”

Asked why Jordan helped young Black lawyers in this way, Williams answered simply: “Because someone did it for him.

Mr. Jordan was in very, very rare company as an African American, and he was dedicated to opening doors for others like him. There will never be another Vernon Jordan, but we should all aspire to pay it forward just as he did.”

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Barry Lawson Williams – What Does it Take to Get Invited Onto a Board?

Barry Lawson Williams is a retired corporate executive who has become a tremendous advocate for increasing the number of Black directors on corporate boards. Having served on 14 boards during his career, including PG&E, Northwestern Mutual, and R.H. Donnelley & Company, the Harvard Law School graduate offers his insights on what it really takes to be invited to serve on a corporate board. By Matthew Scott BLACK IN-HOUSE COUNSEL: What are the systems and traditions corporate boards really use when it comes time to fill a board seat?

BARRY WILLIAMS: The key thing people have to understand is that the majority of searches do not involve outside executive search firms. The majority of searches that were done in the past, and that will be done in the foreseeable future, are internal referrals, where they simply go around the boardroom and ask people to put names in a hat.

The second thing is, to the extent that people go outside the board and ask for names from friends, there is a preference for certain types of people. You will see that the majority of people who are getting on boards are former CEOs, Chief Operating Officers or Chief Financial Officers. I say CFOs, because they’re needed for the audit committee, but there’s not a broad look for different types of people. They go for the label.

There’s also a predisposition to select people who are sitting on other company boards. They just look and see who’s on other boards. And then finally there are the search firms.

The only new thing I’m seeing is that I think boards respect the training that occurs in the military. The military is good at developing leadership for its purposes. It does a fine job, and I see that boards are now looking at retired military persons. That’s fairly new.

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PHOTOGRAPHED BY CRAIG LEE

EXECUTIVE LEADERSHIP BIHC: If this is the system by which board candidates are selected, what needs to change in order to get more Black people on boards?

BW: I think what has to change is that we have to get into this internal referral system. We have to encourage boards to go beyond the limited criteria of certain types.

We have to encourage them to look for skillsets that they need for the future. And if you look at those skillsets, those are not necessarily in – or exclusively in – the sandbox of the types of people they’ve been looking for, like CEOs and COOs. They are not the sole people who know about data security, cybersecurity, data management, digital transformation, and things like that.

The other thing that has to change is people of color and women have got to get themselves known to the search firms.

BARRY LAWSON WILLIAMS HAS MADE AN OUTSTANDING CONTRIBUTION TO THE ONGOING EFFORTS TO INCREASE THE REPRESENTATION OF BLACK MEN AND WOMEN ON CORPORATE BOARDS. AMONG HIS MANY ACCOMPLISHMENTS ARE:

700

BOARD CANDIDATES

56

BOARD SEARCHES

BIHC: How can people of color get boards to look beyond their limited criteria? And how do candidates make the right connections so that they can get invited to join a board?

BW: There are three things that are important for getting on a board. You’ve got to have the right skillset. You’ve got to be a good fit – and by fit, I mean you have to demonstrate that you have good leadership skills and that you have the ability to collaborate so that you can operate in the boardroom with others. You also need the right relationships.

To make the right connections, the traditional way has been working on nonprofit boards where you sit on a board with people who already sit on boards, and they can get to know your work and refer you. I think the way of the future is that there are numerous people developing lists of candidates, and you’ve got to get on those lists and make sure they’re disseminated to board governance committees and to CEOs. BIHC: What should potential candidates do to increase their chances of getting on a board?

BW: You’ve got to do the work. It starts with having a board-ready resume and continuing to build your skillset.

And you must be intentional about increasing your networks. And finally, you’ve got to identify a sponsor to help you. And I say sponsor, in the sense that they’re somebody who will do something for you and not just listen to you. This would be somebody who’s already serving on a board, or who has served on a board.

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BCBR ALUMNI

50%

SUCCESS RATE

Williams has compiled a list of more than 700 aspiring candidates in his database. He focuses on placing 30 to 40 top candidates on his shortlist, but has information on many more who are very qualified to sit on corporate boards.

Williams hasn’t kept count of successful placements, but he has informally been involved in more than 56 board searches. Candidates who are not successful in their first approach typically get subsequent offers. He also works directly with 12 to 15 mentees and is finding that Black candidates are increasingly being approached, including by VC/PE backed company boards.

Williams’ involvement with the Black Corporate Board Readiness Program (BCBR) at the University of Santa Clara produced three cohorts of board-ready candidates in its first year, totaling 82 alumni.

More than 50% of the members of Cohorts 1 and 2 of the Santa Clara Black Corporate Board Readiness Program are now on corporate or non-profit boards.

As you know, we have an organization of experienced Black directors. We’ve got to get them to mentor the next group of people coming through the system. And we’ve got to get more Black people into these board readiness programs where there are advisors and mentors that can help them. So those are a couple of ways that would help.

BIHC: Exactly how critical is your skillset to getting on a corporate board?

BW: You’re not going to get on a board unless you have an attractive skillset. So, I tell people to do two things. First

BIHC ANNUAL REPORT 91

of all, recast your skillset in terms of the kind of skills that boards currently think are attractive. For example, people who might say they’re a General Counsel; I would recast that and say you have experience in risk management, or you have experience in regulatory affairs, because things like risk management and regulatory affairs are more in demand now.

And I think you’ve got to continue to build your network and your skillset. Over my career, I developed more skillsets than I had starting out. You have to be alert for opportunities that allow you to build your skillset. If I heard about anything dealing with compensation, I took it on and I became pretty fluent in compensation because it was important to boards. Taking on committee assignments was important in that respect. That’s where you can get experiences that build your skillset.

BIHC: Are there any types of behaviors that a Black board candidate might need to be aware of and possibly learn to mimic in order to be considered for a board seat?

BW: Sure. Remember the starting point, that most of these white board members have never dealt with a Black board member with the capabilities that we’re going to have walking into that room. So, it’s not a question of racism. They just don’t consider us peers because they haven’t had that experience.

So, Black board members will have to establish their credentials, but we’ve done that in our jobs where we’ve had to be twice as good to be considered an equal. But beyond that, there are certain things that you have to learn to be effective on a board. You have to be collegial, you have to be a good listener, you have to know when to speak and you have to figure out when there are op-

Over my career, I developed more skillsets than I had starting out. You have to be alert for opportunities that allow you to build your skillset.”

BIHC: You’ve said that candidates should identify a sponsor to help them get on a board. What else should they know about sponsors?

BW: There are two points I’ll make about sponsors. First, sponsors are different from mentors. I always point to what somebody told me years ago – there is a difference between coaches, mentors and sponsors. Coaches yell at you, mentors listen, but sponsors do something for you.

Now those definitions are probably too restrictive, but they make a point. I’ve always had good mentors, but I didn’t focus on who were the people who would do something for me as opposed to just listening to me. And that’s the importance of figuring out a sponsor.

And then second, you have to realize that as much as these people – be they mentors or sponsors – may like you, they’re not staying up at night worrying about you getting on a board. You have to ask them. You will have to make it be known that you want to get on a board and then you have to make it easy by saying, “this is the type of board I want to be on, and this is the skillset I bring.

Can you do something to help?” So, identifying a sponsor and figuring out how to effectively use them are important.

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portunities to contribute because that’ll directly relate to becoming a peer. And I always say you have to be willing to work in-between meetings, both to get to know other board members better, but also because a lot of the work of the board happens informally between meetings.

BIHC: As Black candidates continue strengthening their qualifications, is there anything else that can be done to increase the number of Black people appointed to corporate boards?

BW: One of the areas of action is to continue developing lists of more board-ready minority candidates. I think we’ve shown that there’s no shortage of supply. But now, how do we get that supply teamed up with decision makers so that we’re getting more Black people on boards?

We might need some money to really make those lists effective. There’s a lot of work to do.

Also, there’ve been a lot of supportive pronouncements and financial commitments by large corporations in reference to diversity. I think we have to have a system to measure the follow-through on those commitments.

And I think we need to make ourselves available to help those corporations figure out what effective board diversity programs might be.

EXECUTIVE LEADERSHIP Graduates of Black Corporate Board Readiness Program Raise Funds to Establish Endowment to Sustain Effort for Future Generations

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embers of the first three cohorts of the Santa Clara University Black Corporate Board Readiness Program (BCBR) have come together to donate more than $100,000 to establish an endowment fund that will keep the program, which has the goal of increasing Black representation in the nation’s boardrooms, operating well into the future.

The first three cohorts of the program produced 82 alumni, who have contributed to what will be called the Barry Lawson Williams BCBR Fund. Dennis Lanham, Senior Assistant Dean and Executive Director of the Silicon Valley Executive Center and co-founder of the BCBR Program, says the fund honors more than two decades’ worth of work Williams has done advocating for the placement of more Black executives on corporate boards (see sidebar).

The fund will be established with an initial contribution of $113,000. Proceeds from the endowment fund will be used to identify and support more aspiring Black candidates to participate in the program and to help get them placed onto significant boards. The proceeds will also ensure that there is an ongoing support ecosystem for program alumni.

Lanham says the members of Cohort 3 encouraged the idea of establishing the endowment, but alumni of all three cohorts from the inaugural year of the program made donations to establish the fund. Lanham and Thane Kreiner, PhD (BCBR co-founder and Executive Director Emeritus of the Miller Center for Social Entrepreneurship at Santa Clara University) always had the intention to endow the program’s work in Barry Lawson Williams’ name from its launch in February 2021. They see the endowment of this program as a major advancement for board diversity and corporate governance.

“We will be focused on building the fund to the $10

Dennis Lanham

Thane Kreiner, PhD

million to $20 million range so that the endowment income can support Black leaders on their board journeys in perpetuity,” says Kreiner. The program will focus on obtaining major gifts from foundations, corporations and philanthropists to reach that funding goal.

The incredible concentration of Black leaders who participate in the BCBR Program obliterates the excuse that there is a lack of qualified talent to fill directorships. “Authentic diversity in corporate governance leads to better business outcomes and social justice,” says Lanham. “The ultimate goal of this program is simple – get Black executive voices and networks into boardrooms across the corporate governance spectrum. Changing boardrooms in this way has the potential to drive systems-level change in business. What we are doing is fully aligned with our Jesuit university value of commitment to social justice.”

The next cohort (C4) of the BCBR Program will complete their certification in March and the fifth cohort (C5) will commence in June of this year. The program leaders realize that there is much more work ahead; however, with the program now endowed, they are confident that it will continue growing in a healthy way.

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DAVIS POLK & WARDWELL LLP, PROUD SPONSOR OF BIHC ANNUAL REPORT

Invested in Success including how enforcement agencies will view certain contemplated mergers or acquisitions.

UA: As someone whose practice involves government investigations, I also think the new administration will be more aggressive on the enforcement front, especially in heavily regulated areas.

Organizations need to be prepared for that. We’re helping companies by conducting compliance reviews, ensuring they have robust internal policies and controls.

Sheila R. Adams is an Antitrust & Competition partner based in New York. She is Co-Chair of the Diversity.Advanced Committee of the ABA Antitrust Law Section and a member of the Board of Directors of the Columbia Law School Association.

In 2019, she received National Bar Association ‘40 Under 40 Nation’s Best Advocates’ awards, including for ‘Excellence in Leadership.’

What are the key trends in your practice area for 2022 and what do GCs and boards need to think about?

SA: The antitrust space has seen significant activity over the past several years and we can expect con-

tinued aggressive enforcement in both merger re-

view and conduct investigations, as well as potential legislative changes at both federal and state

levels. In-house counsel should be closely aligned

with antitrust counsel because there is so much

uncertainty about how the landscape is changing,

How has Covid-19 affected the way you work?

UA: We’ve realized that many things that used to be done face-to-face can be done remotely. But you have to work creatively to keep your team engaged in a remote environment and it’s harder to get in front of new clients where there’s no existing relationship.

SA: The advent of virtual proceedings, particularly depositions, has shown that these things can be accomplished remotely. But there’s fatigue in the medium, and a hunger to reconnect in person. There’s value in being face-to-face with both colleagues and clients.

Tell us about your pathway to partnership.

UA: From a young age, I wanted to be an advocate.

I love distilling the facts into a compelling story.

“Davis Polk is invested in my success, and I am invested in the firm’s.”

—Sheila R. Adams, Partner, Davis Polk

I went to law school, then to a corporate law firm.

I’ve always believed in public service, so as a fifthyear associate I left to become a federal prosecutor in the U.S. Attorney’s Office for the Eastern District of Virginia, where I learned a lot. I joined Davis Polk as a partner a year ago.

SA: I come from a humble background; I’m a first-generation college graduate and the first in my family to pursue an advanced degree. I did some entry-level legal jobs prior to law school and learned that I love litigation, including the ability to piece together a story and to advocate.

I attended Columbia Law and summered at Davis Polk, during which I split my time between the firm and the NAACP Legal Defense and Educational Fund. I then clerked for Judge Raymond A. Jackson (E.D. Va.) and then-Chief Judge Carl E. Stewart (Fifth Circuit). I came back to the firm as a third-year associate, was promoted to counsel in my ninth year, and became a partner this past July, after one year as counsel.

What characterizes diversity at Davis Polk?

SA: Everyone from firm management down fundamentally believes in the importance of DEI. We also have a healthy sense of introspection about how we can be better. We’ve done things such as sponsorship of professional development programs geared toward diverse pipelines and required training on how to identify and counteract biases.

The senior partners also have been immensely supportive of me as a new partner. That’s a strength of the firm’s culture – they don’t just make you a partner and then leave you to it. Davis Polk is invested in my success, and I am invested in the firm’s.

UA: Davis Polk understands it’s a not just a moral priority, but a business imperative to hire and develop diverse talent. Diversity of people leads to diversity of perspectives, which enriches our culture and delivers better results for our clients. I’m also

Uzo Asonye is a White Collar Defense & Investigations partner based in Washington, D.C. Before joining Davis Polk in 2020, he was Acting Chief of the Financial Crimes and Public Corruption Unit in the U.S. Attorney’s Office for the Eastern District of Virginia. He also served in the Office of Special Counsel Robert Mueller during its investigation into Russian interference in the 2016 election.

particularly proud of our affinity groups. I’m on the Steering Committee of our Black Affinity Group.

What is your advice for junior attorneys?

UA: Assess where you are every few years, and don’t be afraid to go in a new direction. Take a proactive role in your own professional development.

Be respectfully vocal about the types of experiences you’re looking for and types of matters you’d like to work on.

SA: Believe in yourself. Let other people say no to you but don’t say no to yourself. Don’t rule yourself out. Whether it’s work you want to do or professional development opportunities – ask for it.

Remember ‘no’ might just mean ‘not yet.’

Leading and Serving: Black Lawyers in the Biden Administration President Joe Biden’s administration has been lauded as one of the most diverse ever. His picks for key roles include a number of Black lawyers. Here we profile these exceptional individuals.

By Vikki Conwell and Sherie Holder

Kamala D. Harris Vice President of the United States

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AMALA D. HARRIS MADE HISTORY when she became the 49th Vice President of the United States of America as the first woman, the first Black person and the first South Asian-American ever to serve in that role. Harris has a track record of making history both in her career as a lawyer and in serving in the U.S. Senate.

As the Attorney General of California, she won a $20

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billion settlement for Californians whose homes had been foreclosed on. Along with overseeing the largest state justice department in the U.S., Harris won a $1.1 billion settlement for students and veterans who were scammed by a for-profit education company.

As the Vice President, Harris is charged with an ambitious portfolio that includes immigration policy, voting rights reform, labor rights and women’s rights.

EXECUTIVE LEADERSHIP Cabinet and Cabinet Level Appointments Marcia Fudge Secretary of Housing and Urban Development

After serving as the U.S. representative for Ohio’s 11th congressional district for 13 years, Marcia Fudge relinquished that role in March 2021 to become the Secretary of Housing and Urban Development (HUD) for President Joe Biden. Fudge was also a pioneer, serving as Chair of the Congressional Black Caucus and co-sponsoring the Voting Rights Act of 2014.

Sub Cabinet Level Positions Wally Adeyemo

Bonnie D. Jenkins

Deputy Secretary of the Treasury Department

Undersecretary of State for Arms Control and International Security

Adewale ‘Wally’ Adeyemo served as Chief of Staff to Jack Lew in the Treasury and then was a chief negotiator for the Trans-Pacific Partnership. He was Chief of Staff under Elizabeth Warren at the Consumer Financial Protection Bureau.

Ambassador Bonnie Jenkins’ eight-year stint in the Obama administration as a Special Envoy and Coordinator for Threat Reduction Programs in the Bureau of International Security helped pave the way for her current role.

Prior to his latest role, Adeyemo was President of the Obama Foundation. Before that, he was a Senior Advisor at the Center for Strategic and International Studies and at BlackRock.

At the State Department, Jenkins was the lead for the 2010 and 2016 Nuclear Security Summits, and representative to the G7 Global Partnership Program.

Enoh T. Ebong

Brenda Mallory

Chief Operating Officer, U.S. Trade and Development Agency

Chair, Council on Environmental Quality

Enoh T. Ebong is the Chief Operating Officer of the U.S. Trade and Development Agency (USTDA). This marks a return to USTDA where, from 2004 to 2019, she served in a variety of roles, including as the Agency’s General Counsel, Deputy Director and Chief Operating Officer.

Tina Flournoy Chief of Staff to the Vice President of the United States

Veteran Democratic strategist Hartina M. ‘Tina’ Flournoy has more than 25 years of experience in management, government relations and legislative matters in the public and private sectors. The Georgetown University Law School graduate was the Chief of Staff to former President Bill Clinton.

Don Graves Jr. Deputy Secretary of Commerce

Donet Dominic Graves Jr. has worked in the U.S. Treasury department as a policy advisor. Graves amassed decades of business and economic experience in the public and private sector. He then served as the executive director of the President’s Council on Jobs and Competitiveness under President Obama.

Brenda Mallory is the first African American to serve as Chair of the Council of Environmental Equality (CEQ). She has a long track record of working on environmental issues with organizations such as the Southern Environmental Law Center.

Donald Remy Deputy Secretary of Veterans Affairs

Appointed by President Biden to serve as the Deputy Secretary of Veterans Affairs, Donald M. Remy was previously a Deputy Assistant Attorney General for the Department of Justice, Assistant to the General Counsel for the United States Army and law clerk at the 6th U.S. Circuit Court of Appeals. A veteran, Remy served as a Captain in the U.S. Army.

Cedric Richmond Senior Advisor to the President of the United States

As the President’s Senior Advisor and Director of the Office of Liaison, Congressman Cedric L. Richmond was one of the first appointees to the Biden administration.

The five-term Louisiana representative, who was a member of the House Judiciary, Ways and Means Committees and the Congressional Black Caucus, was first elected to the Louisiana State legislature at age 26.

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Damon Smith General Counsel of Housing and Urban Development (HUD)

Prior to his confirmation as General Counsel of Housing and Urban Development (HUD), Damon Smith served as Senior Advisor to HUD Secretary Marcia Fudge.

Before joining HUD in 2021 as Principal Deputy General Counsel, Smith served as Senior Director of Advocacy and Counsel at the Credit Union National Association (CUNA).

U.S. Attorney Positions Kristen M. Clarke

Stephanie Hinds

Assistant Attorney General for Civil Rights, U.S. Department of Justice

Acting U.S. Attorney, California Northern

Kristen Clarke is the first woman ever nominated to run the Civil Rights Division at the U.S. Department of Justice (DOJ).

Clarke came to the DOJ as a civil rights attorney in 2006. She worked on cases defending the constitutionality of the Voting Rights Act and became head of the Civil Rights Bureau in the New York State Attorney General’s Office in 2011.

Duane A. Evans Acting U.S. Attorney, Louisiana Eastern

This is Duane A. Evans’ second tenure as Acting United States Attorney for the Eastern District of Louisiana.

Evans was appointed Assistant U.S. Attorney in 2000. His first assignment was in the Violent Crimes Unit, and he progressed to become the Unit’s Chief.

In 2008, he was assigned to the Executive Unit of the Office, and in 2010, he became Chief of the Strike Force and Anti-Gang Unit.

Sandra J. Hairston Acting U.S. Attorney, Middle District of North Carolina

Sandra J. Hairston has been appointed Acting United States Attorney for the Middle District of North Carolina for the second time.

Hairston joined the United States Attorney’s Office in 1990 as an Assistant U.S. Attorney. She led the Organized Crime Drug Enforcement Task Force (OCDETF) Section in the Middle District of North Carolina.

Francis M. Hamilton III Acting U.S. Attorney, Eastern District of Tennessee

As Acting United States Attorney for the Eastern District of Tennessee, Francis M. ‘Trey’ Hamilton III serves as the chief federal law enforcement official for his district. He joined the office in 2002 as an Assistant U.S. Attorney.

Hamilton was awarded the Attorney General’s Claudia J. Flynn Award for Professional Responsibility.

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Stephanie Hinds was named Acting U.S. Attorney for the Northern District of California, making her the third woman to hold the Bay Area’s top federal prosecutor position in 170 years.

Over 25 years, Hinds’ professional journey has included roles as Deputy U.S. Attorney and Deputy Director of the Organized Crime Drug Enforcement Task Force National Program.

Dawn Ison United States Attorney, Eastern District of Michigan

Dawn Ison was sworn in at the end of 2021 and is the first Black woman to serve in this role.

Ison spent 12 years as a criminal defense attorney. She was then an Assistant United States Attorney for the Eastern District of Michigan since 2002. During that time Ison focused on exposing public corruption and has prosecuted drug trafficking offenses at the highest level in the Office’s Drug Task Force Unit.

Breon S. Peace U.S. Attorney, Eastern District of New York

President Joe Biden nominated Breon Peace as the United States Attorney for the Eastern District of New York.

As a partner with law firm Cleary Gottlieb, Peace advised boards and audit committees on compliance and corporate governance issues. He represented clients such as domestic and multinational corporations in anti-corruption, fraud allegations, insider trading, money laundering and corruption and criminal investigations.

Channing D. Phillips Acting U.S. Attorney, District of Columbia

Channing D. Phillips is serving in his third term as Acting U.S. Attorney for the District of Columbia, a position he previously held in 2009 and 2015.

Phillips previously served as Senior Counselor to the Attorney General and Deputy Associate Attorney General for Diversity Management. His career spans more than three decades in the U.S. Department of Justice.

EXECUTIVE LEADERSHIP Kenneth Polite Jr.

Damian Williams

Assistant Attorney General for the Criminal Division, U.S. Department of Justice

Having been nominated by President Barack Obama to serve in 2013 as the U.S. Attorney for the Eastern District of Louisiana, Kenneth A. Polite Jr. is well prepared for his new role as head of the Criminal Division of the U.S. Department of Justice. After being nominated for the post by President Joe Biden, he received bipartisan support in the U.S. Senate, confirmed by a vote of 56–44.

U.S. Attorney, Southern District of New York

Upon confirmation as U.S. Attorney for the Southern District of New York (SDNY), Damian Williams became the first Black U.S. Attorney in the Manhattan district.

Williams previously served as an Assistant U.S. Attorney at SDNY. He has been involved in several high-profile cases, including the prosecutions of former New York State Assembly Speaker Sheldon Silver on corruption and former U.S. Rep. Chris Collins on insider trading.

Inspired by Example Wintta Woldemariam Deputy Assistant Attorney General, U.S. Department of Justice

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tlanta native Wintta Woldemariam grew up against the backdrop of the Civil Rights Movement. She learned about Constance Baker Motley, Charles Hamilton Houston and Thurgood Marshall, who inspired her to pursue this path.

Woldemariam joined the Department of Justice (DOJ) under the Obama administration as Deputy Assistant Attorney General, providing strategic counsel to help lawyers engaged with Congress. Last year, she rejoined the DOJ in the Office of Legislative Affairs to advance the Biden administration’s focus on restoring the rule of law and aligning the legislative priorities of the DOJ with Congress. She also prepares the Attorney General and other senior leaders to appear before Congress.

Woldemariam believes that her previous experiences during a historic recession equipped her to help the current administration meet the challenges of a global pandemic.

“This is a critical time in our nation’s history,” says Woldemariam, referring to the large number of Black lawyers in key decision-making positions. Such leadership roles require good listening skills, taking ownership of legal training and development and seeking to gain new skills every day. She explains: “As their work is highlighted, more Black lawyers will discover that they also have something to contribute to the greater good.”

Funmi Olorunnipa Badejo Special Assistant to the President and Associate Counsel at The White House

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uring the summer of 1991, a young Funmi sat glued to the television watching the Clarence Thomas judicial hearings. Although as a preteen, she was not fully aware of the magnitude of the moment, she knew she wanted to play a role in such important work.

Today, she holds a leadership position in the White House Counsel’s Office, where she advises on ethics and compliance issues and enforces policies about engaging with individuals and organizations.

Lawyers are analytical problem solvers who continuously work to sharpen their professional judgment and critical thinking skills.

Such core competencies and an in-depth knowledge of the law are essential for careers in government. “Governments excel when they solve people’s problems, so having lawyers who are predisposed to analyzing problems and figuring out solutions is an asset,” says Olorunnipa Badejo.

Having more Black lawyers in prominent positions strengthens the government’s ability to create policies that will improve the lives of all their citizens, not just a narrow segment of the population.

“Their array of perspectives and lived experiences make the collective work stronger, and that is something that all Americans can be proud of.”

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DLA PIPER LLP, PROUD SPONSOR OF BIHC ANNUAL REPORT

DLA Piper: Diversity and Inclusion as core values Diversity can mean many different things, but what may matter most is how that meaning is put into action. With its far-reaching diversity and inclusion (D&I) efforts, DLA Piper is appreciated by its Black attorneys for the effort and commitment the firm makes to be inclusive.

“DLA Piper does a few things that are best practices for the industry, and even goes beyond that to provide things I think are unique,” says Jamila Justine Willis, a DLA Piper partner based in the firm’s New York City office. This includes having a dedicated diversity team, a national diversity partner, and resource groups for women, minorities and members of the LBGTQ communities. The firm’s brand values are ‘be exceptional; be collaborative; be bold; be supportive.’ It recognizes that people can only achieve these values if they are supported in being their authentic selves.

The firm takes its commitment to being an agent of growth and change seriously. Its efforts may begin with recruiting, but it goes well beyond

Kim Askew, Dallas-based partner who represents clients in employment matters involving claims of race, disability, gender and age discrimination and sexual harassment.

that, providing mentoring and professional development at every point of associates’ and partners’ careers.

Diversity “is not just about identifying talent,” states DLA Piper partner Naana Frimpong.

“When you get the talent, it is about the type of access and support that is afforded to that individual.” Continues Frimpong: “It is often said that talent is everywhere, but opportunity is not.” In her view, DLA Piper seeks to bridge the opportunity gap that often impacts women and minorities in the legal profession. “I have been very impressed with the way in which I have been supported and positioned to succeed. In my personal experience, I have been given a seat at the table from the start.”

Cara Edwards, New York-based partner in DLA Piper's Product Liability and Mass Tort practice group. She is the Co-Chair of the firm’s Leadership Alliance for Women (LAW).

WWW.DLAPIPER.COM/DIVERSITY

Naana Frimpong, Atlanta-based partner who is a former federal prosecutor and trial lawyer with experience conducting public and private sector investigations. She is a member of the firm’s Africa Board.

“A LOT OF FIRMS TALK ABOUT DIVERSITY, BUT I DON’T THINK YOU SEE IT PRACTICED THE WAY IT IS AT DLA PIPER...”

— Kim Askew, Partner, Dallas Office

Ferlillia V. Roberson, a partner based in Chicago, appreciates that DLA Piper invests in efforts that support the successful professional development of diverse attorneys. “The firm has been, and continues to be, intentional about diversity and inclusion,” she explains. “It is about making significant efforts, with action instead of just words.”

One such investment that Roberson cites as having a positive personal impact on her career trajectory is DLA Piper’s Lawyers of Color Emerging Leaders program (LOCEL). This innovative leadership development program is aimed at providing a cohort of early career partners with opportunities to enhance their business acumen and client development skills, while intentionally exposing them to key leaders, so providing a better understanding of leadership within the global law firm.

Holly R. Lake, Los Angelesbased Employment and Litigation partner who is a trial attorney with a experience defending clients across industries.

When it comes to D&I, Holly R. Lake, a partner in the Los Angeles office, appreciates DLA Piper’s “willingness to engage attorneys to get their thoughts on how to succeed and grow and not be stagnant. The firm has done a very good job, and I love the fact that there is always eagerness to do more, to think more and to be a leader.”

“A lot of firms talk about diversity, but I don’t think you see it practiced the way it is at DLA Piper,” affirms Kim Askew, a partner in the Dallas office who joined DLA Piper in January 2020. “We believe in diversity and inclusion,” says Askew, “and you see it in the collaborative global platform which offers lawyers of color the opportunity to do significant work for highly visible firm clients that enables attorneys to build successful careers at DLA Piper.”

Ferlilla Roberson, Chicagobased Litigation partner, is a trial attorney specializing in complex intellectual property cases.

Jamila Justine Willis, New York based restructuring partner. CoChair of the Consumer Goods and Retail sector and Chair of the New York Office Diversity & Inclusion Committee.

DLAPIPERCAREERS.US

Corporate Governance Week 2022 The Black GC Roundtable is hosting a session with State Street on June 7th 2022 at Corporate Governance Week in Boston.

Human capital concerns are now a major focus point for boards and a significant trend in corporate governance for 2022 and beyond.

Our session is co-hosted with State Street, one of the world’s largest institutional investors, for whom diversity, equity and inclusion is at the core of their strategy.

Beyond The Numbers: Driving Inclusive Boards and Organizations This session will examine the converging focus on human capital by numerous stakeholders, from institutional investors to activist investors, regulators, employees and consumers.

For more info please visit: tinyurl.com/4z4yk7ah

LAW FIRMS

DIVERSE PERSPECTIVES NEEDED MORE THAN EVER

IN MODERN BUSINESS, POTENTIAL CRISES are around every corner. We live in unprecedented times, and clients need trusted outside counsel as never before. The necessity of ensuring that law firms have the diversity of thought and experience to navigate a rapidly changing landscape means that diverse legal talent is at a premium for clients. Legal departments are increasingly focused on diversity, equity and inclusion (DEI) and understanding how their law firms’ strategies for hiring, developing and retaining diverse talent align with their own.

Reporting on data is the first step to understanding DEI – how things stand, and how they need to change. ‘Bring the data’ is not a request that is going to decrease in this space. We examine why this is now table stakes for many leading clients in their relationships with their law firms.

But bias and lack of accountability can still make achieving true diversity in law firms a challenge.

‘Performative diversity’ is one thing but its evil twin, malicious compliance, is even murkier. What superficially looks like championing of diversity can be undercut by law firms’ own actions, which can in practice further undermine Black lawyers and lawyers of color.

However, such biases – and the actions that may stem, consciously or unconsciously, from them – don’t serve the imperatives of modern business and clients’ needs. The ambiguity and range of challenges facing companies today means that diverse perspectives are more crucial than ever. This can be seen clearly in our Emerging Trends feature, where leading Black partners give their thoughts on the key trends that general counsel and their boards need to consider in 2022 and beyond.

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BRING THE DATA

Where Next for Data, Transparency & DEI To move the needle on DEI we need to know what is working and where the challenges remain. With more clients now requiring DEI data from law firms, what are the best practices around asking for and using this information? And do legal suppliers that resist this move to transparency risk being left behind? By Catherine McGregor

LAW FIRMS Uber has a Preferred Counsel Program (PCP), and we ask for DEI data as part of that.”

— Tony West

PHOTOGRAPHED BY LONNIE TAGUE

DATA: MANAGEMENT BEST PRACTICE

Data and its analysis are central not only to good management practice, but to managing DEI. W. Edwards Deming, whose work with Japanese companies in the 1970s helped make that country an industrial superpower, saw the significance of data to leadership when he said: “Without data, you are just another person with an opinion.” As an industry, law needs to make progress on diversity. Data is central to this, says leading consultant and strategic advisor Peter Zeughauser: “Unless we’re reporting and know where we are, how can we measure progress? If the legal profession wants to be more diverse, transparent data on DEI is an essential element of making progress. Sunlight is always the best antiseptic.”

Increasingly, leading general counsel and chief legal officers see that the collection, analysis and use of data in

management – both of their own teams and outside counsel – is going to be fundamental to meaningful change in DEI. But what sets apart those legal departments who are embracing the use of DEI metrics in the most forward-thinking ways?

BUY-IN FROM LEGAL LEADERSHIP

Firstly, it’s buy-in and involvement from the GC in discussions about DEI. If law firms choose not to participate in diversity data tracking and reporting, GCs will see that first-hand and have a lot of discretion that they can wield.

For example, Tony West, the CLO of Uber, says, “Uber has a Preferred Counsel Program (PCP), and we ask for DEI data as part of that. If firms do not share their data, we’ve said, ‘Although we’d love for you to be a part of the program, getting that data is a prerequisite. Hopefully next year you’re able to share some information.’”

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they do not want to collaborate for change in DEI. A willingness for companies to examine their own data is fundamental for success in transparency around DEI, feels Don Liu at Target: “We need to walk the talk. We’re asking law firms to become transparent and benchmark with each other; why would that logic apply to law firms, but not legal departments? There was some reluctance at first because how would we look comparatively, since we don’t know exactly what other legal teams look like? Our HR department was also nervous that this might start a trend for segregating and reporting based on departments: legal, finance, HR. That hasn’t happened and I do think that because the legal industry is far behind on DEI, this transparency and accountability is needed.”

Uber’s Tony West also feels it’s crucial for clients to model the same behaviors they are demanding of their suppliers: “There are 15 attorneys on my leadership team. Twelve of them are women, four of them are women of color. You have to model the values you say are important, through concrete actions, if you’re going to lead with credibility.”

Don Liu, Chief Legal Officer at Target, agrees that for data requests about DEI to be meaningful, the leader of the legal department must be fully involved.

In the rare instances when Uber’s lawyers want to engage counsel outside of the PCP for very specialized services, that request must be escalated to West or the Chief Deputy General Counsel, Tammy Albarrán, and one of them must personally sign off on the engagement. This level of evaluation shows his team that it’s a significant choice to go outside of the PCP and also demonstrates to law firms the centrality of the PCP program. “It keeps us true to what we’re trying to achieve,” states West.

Don Liu, Chief Legal Officer at Target, agrees that for data requests about DEI to be meaningful, the leader of the legal department must be fully involved. “There’s no doubt; law firms can tell when this is a mere exercise that legal departments go through, and that the GC is not involved. When we started the project for sharing DEI data for legal in Minnesota, it was the three of us: Ivan Fong at 3M, Anna Richo at Cargill, and myself. The three of us have been very personally engaged in activities; not just reporting, but also sharing best practices – even worst practices, to the extent that an organization tried something and it hasn’t worked.”

COLLABORATION NOT PUNISHMENT

For many years in DEI in law there have been discussions on whether it’s better to offer the carrot or the stick. What’s happening now is that clients are moving to a much more collaborative approach with their law firms, where the end goal is neither a reward nor a punishment, but rather figuring out practical solutions together.

This collaborative approach means that many of the most forward-thinking legal teams are collecting and analyzing their own legal department data as well as asking their law firms for theirs. This sends a strong message that ‘we are in this together.’ Law firms that do not want to share their data are potentially signaling to clients that

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“NetApp have been collecting metrics on diversity for a decade.

We are at a different point in the evolution of the DEI, so now the metrics are deeper; they’re more pervasive; they have taken on a new life and a new focus.”

— Connie Brenton

LAW FIRMS Connie Brenton, Head of Legal Operations at NetApp, is used to working with data. Her organization is ahead of many of its law firms in this regard: “NetApp have been collecting metrics on diversity for a decade. We are at a different point in the evolution of the DEI, so now the metrics are deeper; they’re more pervasive; they have taken on a new life and a new focus.” She feels that law firms need to wake up to the fact that metrics are not going away and that they are invaluable in getting to the heart of an issue: “Metrics are a beautiful thing. They identify issues that organizations didn’t have any idea they had; issues that can be deep and pervasive and destructive.”

But Brenton feels it’s important for law firms to understand that it’s not a punitive issue, so long as they are committed to learning and change and realize that their clients are on the same journey: “Nobody likes to report out metrics that are not flattering. It makes it easier to report out these metrics when we appreciate that we’re all in the same boat, unfortunately: both in-house legal departments and outside counsel.”

Firms that do not share DEI data are just delaying the inevitable, as well as missing a valuable opportunity for collaboration, feels Peter Zeughauser, long-time strategic advisor to many leading global law firms: “Sooner or later, more likely sooner, to maintain many important client relationships, firms are going to have to share their data with clients. Better to do it sooner and when you do that, engage the client in ways that you can work collaboratively to improve the data at the firm.” This can create a real competitive advantage: “Firms that are sharing data are also using their data to convince their partners that the firm needs to do better if they’re going to maintain and expand important client relationships,” he explains.

AN ASSERTIVE STANCE

Legal departments that are at the leading edge are taking a more assertive position with law firms. The mes-

sage is clear that data equals transparency, accountability and, ultimately, progress. But it’s broader than just the data, asserts Don Liu; it’s about shared values. He says, “Firms who do not wish to engage in sharing of information on DEI make it virtually impossible for us to assess how they’re doing in DEI. It means it’s not a core value for that firm, and if we’re not aligned on values, we won’t work together. There’s no requirement that we have to work with firms that don’t believe in what we believe in.”

Connie Brenton feels that clients using their purchasing power is the best way to create change: “Law firms have consistently been responsive to requests from the customer that affect their business.” It’s also a great opportunity to deepen relationships with clients by seeing DEI as an opportunity for greater collaboration. She expands: “Working together will enhance our partnership.

And this is an area where we really can combine forces with law firms and create joint solutions.”

Steady improvement and taking the long-term view are essential to DEI. Clients and firms need to measure progress and feel that both sides are committed to meaningful change. That’s why clients like Tony West at Uber feel that engagement and sharing metrics must be ongoing and backed up with meaningful discussions: “What we’re looking for is not a snapshot on diversity, where folks are in a given year, or at a given moment. We’re looking for a sustained commitment to diversity over time, with sustained improvement, and a genuine desire to move the needle.”

MOVING FORWARD

Over the next 18 months, the focus on data, transparency, and accountability regarding DEI in the legal profession is likely to grow further, mirroring a general trend in both business and wider society. Clients are not going to decrease their requests, particularly as operational efficiency becomes a greater area of scrutiny, believes

“Law firms that do not share data and therefore cannot establish that they are making progress will lose work, lose clients, and lose diverse lawyers: it’s a triple whammy.” — Peter Zeughauser

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uals are visible on platforms like LinkedIn. All this data is readily available for data scraping; this is a worldwide activity in which law firms cannot control the accuracy of the data or what happens to it. Some of the emerging technologies, such as Outside Counsel Search, even give diverse attorneys the ability to promote themselves and be more easily found. Firms shouldn’t hide from what is already out there for anyone to see. Many firms complain about survey fatigue – but are not trying to solve the problem, or voice complaints only when asked questions they don’t want to answer. Many want credit for transparency when they are picking and choosing what to share and what to keep to themselves. Such selective transparency isn’t really transparency at all.

This disconnect is going to cost law firms in the talent market, feels Macey Russell, a partner at Choate, Hall & Stewart, and a leading DEI advocate for many years.

Younger generations are used to a world of greater transparency. For them, values such as DEI (and openness around this) may trump the traditional ‘money and prestige’ rewards of a career in Big Law. Law firms are not the only career options for ambitious lawyers, she cautions: “The flipside of Big Law firms being so white is that inhouse legal departments, the SEC, DOJ, they’re all becoming more and more diverse. In the SEC, about 33% of their in-house staff are minorities: a lot of them are people who left law firms. So, if you have that type of dynamic on top of a matter before the court, there’s the potential to see the other side of the fallout of all of this – how a lack of diversity can be a disadvantage.”

Peter Zeughauser agrees: “Law firms that do not share data and therefore cannot establish that they are making progress will lose work, lose clients and lose diverse lawyers: it’s a triple whammy.”

Fortunately, most law firms are transparent about their DEI data and see the value in this both for their own organizations and the wider legal profession. These firms also understand that the corporate landscape has changed.

The rise of ESG means that metrics which even ten years ago were seen as ‘nice to have’ are now central to the success of global brands. This contributes to the inevitability

“The flipside of Big Law firms being so white is that in-house legal departments, the SEC, DOJ, they’re all becoming more and more diverse.”

— Macey Russell Connie Brenton at NetApp. She feels that DEI metrics are challenging for law firms, as are lots of other data requests, as firms are not evolved enough in how to capture and use data. Part of the issue is an unfamiliarity with the process and lack of resourcing: “Anytime you start capturing data at this level, you also have to put resource in.

That’s what we’re chasing in this evolution. We know the identity of the problem: we have a systemic problem. You can’t just change this on a dime. But capturing metrics allows us to make that first determination of where effort should focus.”

The increasing importance of ESG in business is likely to make DEI (which falls under the ‘S’ for ‘social’) an area where there is more emphasis from both clients and law firms’ own potential future talent. Happily, most law firms are courageous change agents who see the value in these changes. However, some are still reluctant.

RESISTANCE IS FUTILE

While the majority of corporations in the U.S. could be more transparent around their DEI data, that is starting to change – the number of firms which hold themselves to account through transparency and accountability around their DEI data has doubled since 2019. As this trend grows within those who comprise most law firms’ clients, how can the firms themselves resist? Why, indeed, would they want to?

One of the historical arguments against sharing data was that the firms’ HR systems used to be the only place where the data was available; it was private, with no other means of sharing. Now it’s everywhere. Most law firms already post a significant amount of information about their people on their websites, including photos, from which the ‘obvious’ type of diversity attributes can be reasonably identified. Entire work histories for individ-

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LAW FIRMS of DEI data being normalized, says Zeughauser: “There is going to be more pressure to be more transparent on reporting on DEI and ESG. There’s a growing awareness throughout business and society of the importance of this, so that the lack of diversity, the lack of ESG awareness and activity, mean that the consequences of looking

the other way, or keeping it murky so that nobody really knows what’s happening, are becoming starker.”

Transparency and accountability will be the yardsticks by which ESG metrics, including DEI, will be measured, and the reporting of data is a central tenet of this. The message is clear: bring the data.

EXPERT INSIGHTS

Data Resistance For that minority of firms that are slow to embrace transparency, these are the most common objections raised to sharing diversity data. We asked clients and leading industry commentators to give us their perspectives on these perceived problems – and why they needn’t be barriers to change.

1) DATA PRIVACY CONCERNS

This is usually the first objection raised. But many of the companies collecting data, whether they are clients or third parties, undertake rigorous data privacy assessments. Indeed, some of the clients involved in these efforts are data-focused, marketleading technology companies whose awareness of data privacy outpaces many law firms’ behavior in this space. The data analyzed for most projects is only used as aggregated data and all subjects need to agree for their data to be used.

Increasingly, refusing to provide their data is going to put law firms out of sync with the move to embrace transparency in a data-rich world.

2) SECURITY ISSUES

Again, many of those involved in analyzing DEI data are tech companies, whose awareness of security issues is more enhanced than many law firms. Full evidence of security protocols and proper use of data is always shared prior to data collection projects.

3) ‘IT’S OUR POLICY TO NOT SHARE THIS DATA WITH ANY THIRD PARTY’

Can this attitude really last in a world that is being so driven by data? Especially when the decision to share – or not to share – can be seen as reflecting where the firm’s priorities lie. Explains Macey Russell: “For those law firms who share their diversity data publicly, you know that DEI is a true core value of their organization. Because what they’re basically saying is, ‘This is important to us. It is a core value and not an aspirational value. We may take some hits, we may be criticized, but that’s okay. As opposed to firms that say, ‘We don’t want to put our data out there; if our clients don’t ask and don’t make any decisions based on our data, we’ll just keep it to ourselves.’”

Not sharing DEI data also makes the analysis of supplier DEI impossible and shows a lack of cohesion on shared values.

That’s now a deal breaker for many high-profile clients.

4) PROTECTING THEIR PEOPLE

Some firms worry that in small data groups, such as female Black equity partners, people can be identified because there are only one or two individuals to whom those descriptors apply. However, such lawyers are often equally identifiable from a quick scan of the firm’s website. There’s also the question: Do people want this protection? From what, exactly – getting more work?

Russell, as a successful Black partner, feels that this attitude is laughable: “Corporations over the years have asked law firms to see bios of all the diverse partners so they can be profiled internally such as on an internal website. Clients wanted to be able to go to the firm’s relationship partner and say, we’d like this diverse partner on our matters. Some firms would say, ‘We can’t give you that information, that’s private information.’ But the joke is if the client asked the firm to send a bios of associates who work on transactions, they would send that to you in two seconds. That’s hypocritical. It also contributes to this growing sense of a continued reluctance to develop and empower diverse lawyers because it challenges traditional notions of how things work within a law firm.”

Don Liu also finds this argument hard to understand, since clients like himself are asking for reports of who is working on matters regularly and getting reports of that billable data. Since legal teams know mostly who their lawyers are, they can join the dots. It’s also crucial that clients know who the diverse talent is to be able to advance change: “We have a program where we try to identify promising diverse lawyers. We’ll work with law firms identifying the diverse lawyer and say, ‘We think Joe Smith is a fantastic lawyer and is very promising. Can we help you to develop that lawyer?’ How can we do that development work if law firms hide who their diverse talent are?”

Connie Brenton at NetApp agrees: “The information is readily available on their website. It just makes it more difficult for us, the client, to obtain because now we must do more. We can’t go to a central location to obtain this information. “Or we can run an RFP and we can ask for this information as part of that: we can get the data. It’s just a matter of how we ask for it.

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LAW FIRMS

No Comment?

Questions legal departments want to ask, but law firms don’t want to answer Many law firms are still skittish about drilling down and providing information and data on some aspects of what they do and who does it. But these are areas where structural inequalities have been most evident and for many clients this information is no longer just ’nice to have’, but a deciding factor in who gets their business.

By Catherine McGregor

T

HERE IS STILL A RETICENCE from some law firms in providing clear answers and data on certain areas, particularly those that might be considered sensitive or where the facts may be unflattering. But these are the very topics that clients increasingly want answers on. Businesses know that without understanding what is happening, they will not be able to work with their law firms to create meaningful change in Diversity, Equity and Inclusion (DEI). That is the key message from leading legal departments: these metrics are not meant to be a big stick for punishing law firms. Rather, asking these questions is a way to understand where there are DEI challenges and how clients and their firms can partner to create lasting change that works for both sides.

Below, we examine the questions that law firms often do not want to answer and explain why leading clients want this information. But it’s important to also recognize there is a responsibility for legal departments not only to ask for the

data, but to ensure they create meaningful responses to issues raised. To be most effective and really create a new model for the legal profession, these responses need to be created in collaboration with law firms. Part of this drive for understanding is to get less reactive about DEI and more proactive. As the late Archbishop Desmond Tutu said: “There comes a point where we need to stop just pulling people out of the river. We need to go upstream and find out why they’re falling in.”

1. ATTRITION DATA HR experts know that there are different types of attrition. The most concerning is voluntary attrition – and more so, demographic-specific voluntary attrition.

High levels of attrition generally reflect a progression and/or cultural issue at the organization. This can speak to challenges or flaws in the way that employees are being developed and nurtured. Demographic-specific attrition can speak to blocks in developing specific groups of people. This can also be a sign of an organizational culture in which its harder for some employees to feel they belong and can succeed.

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For many corporates, culture and shared values are increasingly metrics that are driving their choice of suppliers. Law firms may worry about sharing attrition numbers because they would rather draw attention to the successes of lateral hires, not places where things have not worked out.

For clients, if there is attrition which correlates to specific groups and particular moments in lawyers’ career paths, that can flag cultural issues. It may be that ‘success’ is defined or being measured in ways that are biased. These are challenges that many client organizations will be facing in their own legal department or more broadly. Understanding what is happening will allow clients and law firms to work together to create best practices in shaping inclusive workplaces where ALL lawyers can thrive.

of these may be informal. Mentoring and sponsorship opportunities are much harder for diverse lawyers to obtain, given the majority white, heterosexual, cisgender, male demographic of law firm partners. It’s therefore likely that those mentored by the beneficiaries of today’s origination credits will be those who receive tomorrow’s origination credits. For clients who want to change the face of DEI with their suppliers and in the profession, understanding their origination credit is fundamental to doing that.

Clients such as Walmart and Dominion Energy are inserting themselves into the origination credit discussion and ensuring that at least one client partner is diverse. For Dominion, ensuring that one of their new client relationship partners who was a Black woman would receive full origination credit was crucial to the relationship with that firm.

3. TOP 10% OF EARNERS

For many corporates, culture and shared values are increasingly metrics that are driving their choice of suppliers.

2. ORIGINATION CREDIT How origination credit is decided is opaque at best. A 2019 survey by Diversity Lab found that across 70 leading US law firms, only half tracked how origination credit was handed out. Origination credit also works as an annuity, with many firms giving it in perpetuity to the partner who gets it, irrespective of whether that partner continues working for the client or not. Many clients have no idea who gets their origination credit. This is an outdated structure which does not reflect the way most clients now want to work – using greater collaboration and team-based approaches.

Origination credit opportunities are often handed down as part of a mentoring or sponsorship relationship; many

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Who is making the most money in a law firm is a good indicator of who has the best access to key clients and the most meaningful (and profitable) work. If your legal department is one of a law firm’s biggest clients, it’s not unreasonable to find out where your money is going!

Law firms may be wary of sharing this information because it foregrounds the cultural norms that have historically defined the structures of big law firms – there are more white men in equity partner roles and in law firm leadership. Even firms that are trying to change this are up against many years of certain lawyers getting the best opportunities and therefore earning the most money.

Who is making the most money in a firm will also be a good indicator of where the cultural priorities of an organization lie and who is in line for the best opportunities in the future.

If the top 10% of earners are all white men, law firms and their clients need to look with some urgency at how they are developing the next generation of top talent and what the demographic of that is.

Law firms and clients also need to interrogate how they define success. Clients can have a voice in this and proactively look for partners of color for major matters.

4. MATTER LEADERSHIP (the kind of work being done by attorneys on clients’ matters) Understanding who is getting the best and most meaningful work is critical for associate development. In some

LAW FIRMS

cases, law firms have loaded diverse associates solely onto matters for clients who speak up about diversity, only to then use lack of breadth of client experience as an excuse for not promoting those lawyers.

Clients now realize that they cannot be passive about this, but to partner effectively with law firms for change they need to have and understand this data.

Meta, for example, now measures the types of opportunities on its mandates that diverse associates are given to ensure that those attorneys are being given career-enhancing opportunities leading to equity partnership in their firm.

5. ELIGIBLE FOR PROMOTION V ACTUALLY PROMOTED As clients focus on ensuring diverse associates have career-enhancing opportunities, they need to be sure those efforts are having an effect.

By understanding who is eligible for promotion versus who ends up being promoted, clients and their firms can ascertain if there are issues around how success is being defined and measured. Are those deciding on promotions a diverse enough pool? Do those deciding have biases which may prevent certain groups from progressing because they do not fit an outdated vision of the qualities a law firm partner should have?

6. NUMBER OF CLIENT RELATIONSHIPS PER PARTNER As with origination credit, understanding how client relationship roles are distributed will give clients a better idea of cultural imperatives at their law firms. If the demographics of lawyers who have multiple client relationships skew predominantly white and male, this is a structural issue that clients may wish to question. Law firm leaders may also have an appetite for change, but the challenges of reworking long-held structures, particularly within an equity partnership model, are myriad. Again, this is where a shared perspective and collaboration between client and law firm will be key – but that can only happen if clients understand where change is needed.

Surveys such as the annual Altman Weil survey of law firms’ clients show vastly different experiences from law firms versus their clients regarding satisfaction with the relationship. Now law firms face competition from providers with different business models and have a client base who express disaffection and a desire to spend less with law firms. The competitive advantage of greater diversity of thought and experience is needed to create new operating structures that are fit for purpose. Clients can help their law firms with this change – but to do so, they need answers to their questions!

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“Our mediators and arbitrators bring a wide range of viewpoints and ideas to each engagement. The rich diversity of our roster means that our neutrals are better positioned to understand the varied perspectives and experiences of parties in dispute, which can only lead to better outcomes,” says Marcie Marcie Dickson CEO, Alerity ADR Dickson, founder, and CEO of Alterity. “Outside Counsel often hire mediators and arbitrators whom they ‘know and trust,’ but this practice reinforces incumbency bias and groupthink,” says Dickson. “Our name Alterity, which derives from the Latin ‘other,’ is a signal that we give clients other options — more choices, different perspectives, transparent procedures, and the creative thinking that our diverse practitioners bring to mediation and arbitration proceedings.”

Dickson is a trailblazer in this space as the first Black woman to own and lead a national ADR firm with arguably the most diverse panel of conflict resolution specialists in the country. With a commitment to promoting inclusion within the profession and society, as well as within Alterity’s leadership, Dickson has positioned the firm to redefine alternative dispute resolution for the better.

Before launch, Alterity conducted extensive research with general counsel, external counsel, and claims professionals, and acquired input from current and former GCs on its advisory board, including Bradley Gayton, the chairman of the Alterity ADR Advisory board.

Recently, the firm expanded its roster of panelists, making Alterity the largest national dispute resolution company owned by a person of color. Alterity now has over 30 highly

Alterity now has over 30 highly qualified mediators, arbitrators, and conflict resolution experts based around the US, including former trial lawyers, judges and general counsel with significant experience.

qualified mediators, arbitrators, and conflict resolution specialists based around the US, including former trial lawyers, judges and general counsel with significant experience.

By keeping clients’ needs at the heart of its business, Alterity believes that its unique approach can help companies resolve disputes more effectively.

Julie Jun offers significant experience managing toxic torts and commercial disputes, including product liability, life sciences, intellectual property, and antitrust.

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LAW FIRMS

EMERGING

2022

TRENDS

In this section we consider the main issues that will be shaping the corporate landscape in the U.S. and beyond in 2022. What should GCs and their boards be thinking about? We ask Black lawyers who are world-class experts in these areas to share what they think is key. By Catherine McGregor

118 ANTITRUST

Patrick A. Bradford, Bradford Edwards & Varlack LLP John Gibson, DLA Piper

122 FINTECH

Franca Harris Gutierrez and Tiffany J. Smith, WilmerHale

119 CYBERSECURITY

Travis LeBlanc, Cooley LLP Devika Kornbacher, Vinson & Elkins LLP

120 ENERGY REGULATION

Monique Watson, Steptoe & Johnson LLP

122 123 FAIR LENDING MEETS SHAREHOLDER FINTECH ACTIVISM Jonice Gray Tucker, Buckley LLP

121 ENVIRONMENTAL, SOCIAL AND GOVERNANCE (ESG)

Petrina Hall McDaniel, Squire Patton Boggs Danielle Reyes, Goodwin Procter

Adé Heyliger, Weil Gotshal

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ANTITRUST PATRICK A. BRADFORD is a founding partner of Bradford Edwards & Varlack LLP in New York. He has represented clients in multibillion-dollar, cross-border transactions before the Antitrust Division of the U.S. Department of Justice and the FTC and has appeared before the SEC, the Financial Industry Regulatory Authority and various state agencies on behalf of clients.

Patrick A. Bradford, Bradford Edwards & Varlack LLP

What are the main things that GCs and boards should be thinking about regarding antitrust in 2022?

The Government’s enforcement posture is moving away from the Chicago School’s econometric ideas that have dominated federal antitrust jurisprudence for the past several decades, toward an embrace of a New Brandeis School of thought, with its larger ideas of social welfare. Below are some key considerations: • DOJ and FTC antitrust enforcement will be more aggressive. For example, the DOJ recently filed complaints challenging Penguin’s acquisition of Simon & Schuster and the American Airlines/JetBlue partnership.

• The technology industry has been in the crosshairs of regulatory agencies and Congress for several years.

Practitioners are mindful of the recommendations in the House of Representatives’ 2020 Report “Investigation of Competition in Digital Markets,” given its scope and the specifics of its recommendations. The House Report should be considered with proposed antitrust legislation, such as the American Innovation and Choice Online Act, the Platform Competition and Opportunity Act and the Merger Filing Fee Modernization Act. • President Biden’s Executive Order on ‘Promoting Competition in the American Economy’ is as clear an antitrust policy statement as one could imagine. The President thinks antitrust laws are critical to promoting competitive markets.

• New enforcement trends may renew interest in the efficacy of Section 5 of the FTC Act regarding its standalone authority to regulate business conduct beyond the Sherman and Clayton Acts.

• States are going beyond federal antitrust legislation.

For example, a proposed New York State statute

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would make “abuse of dominance” the standard for unilateral conduct violations, and it would eliminate defences based on efficiencies.

• Federal regulators will likely train more focus on how employers have evaded antitrust scrutiny while using market dominance to suppress wages, especially in low-wage industries such as fast food restaurants.

The pandemic has focused the nation’s attention on low-wage workers, both with their sacrifice in having to physically go to work (and risk Covid) and also in the context of worker shortages.

To read more of Patrick’s insights into critical trends in antitrust, go to: https://www.outsidecounselsearch.com/ counsel/patrick-bradford-206 JOHN GIBSON is a partner in the LA office of DLA Piper. He focuses on antitrust, commercial, healthcare and technology litigation, including class action and multi-district litigation.

What are the main things that GCs and boards should be thinking about regarding antitrust in 2022?

John Gibson, DLA Piper

Everything is changing.

As the world relies more and more on technology, rapid innovations to transform society are powering the Fourth Industrial Revolution. But these innovations are also spawning concerns, leading to a paradigm shift in antitrust thinking and enforcement.

In the U.S., we are seeing a decades-long antitrust focus on prices, efficiency, and harm to consumers (under the Chicago School of antitrust thought) give way to a renewed focus on market structure (under the New Brandeis School of antitrust thought). There will be a lot more focus on antitrust and aggressive enforcement action.

As a result, GCs and corporate boards should be thinking about how the following will affect their companies and markets: • The rescission of Trump-era Vertical Merger Guidelines, which will mean that there will be fewer antitrust ‘safe harbors’ for proposed mergers • Heightened scrutiny of pricing in the pharmaceutical industry, including rebate practices • More international coordination between enforcers

LAW FIRMS What are some of the best practices in relation to antitrust?

concerns that the company has with a competitor’s or supplier’s current or contemplated future practices; and (2) bringing appropriate antitrust claims in IP and/or contract litigation with competitors.

Preparation and proactivity are the bywords in terms of best practices. Companies should consider: (1) reaching out proactively to antitrust enforcement agencies about

To read more of John’s insights into critical trends in antitrust, go to: https://www.outsidecounselsearch.com/ counsel/john-gibson-589

• Prospects for lawsuits to break up companies owning big technology platforms.

CYBERSECURITY TRAVIS LEBLANC is a partner in Cooley’s litigation department leadership team and Vice Chair of the firm’s cyber/data/privacy practice.

What are the main things that GCs and boards should be thinking about regarding cybersecurity?

Travis LeBlanc, Understand your risk Cooley LLP profile, which differs depending on the maturity of the company, the locations where it operates, the type of industry it is in, whether it is a public company or privately held. Understand the extent to which you are a target and the kinds of attacks that you are a target for and plan around those. Assessing cyber risk is as important as assessing financial risks.

The board must also be aware of the cyber insurance coverage that the company has, the security auditing that the company does. Also, the privilege issues around an incident, which are complex.

You need an incident response plan. Identify the team that’s going to help you with that, so that when it happens, you know who you’re calling.

What are some of the best practices in relation to cybersecurity?

Best practices will differ according to a company’s risk profile. Some have a committee of the board that is charged with cybersecurity oversight, or the audit or IT committee is designated to take charge of this. Having directors on the board who have cyber expertise is important in companies that have higher risk profiles.

Board responsibility and engagement is crucial. Annually participate in a tabletop where you game out how the

company would respond to an incident, engaging the CEO, the CFO, the general counsel, the head of communications or PR. A major incident will involve all these people. Do regular penetration testing or assessment of information security. Educate all employees on how to protect themselves from being the victim of a cyberattack, including at home. That’s particularly true during a pandemic.

To read more of Travis’ insight into critical trends in cybersecurity, go to: https://www.outsidecounselsearch. com/counsel/tleblanc DEVIKA KORNBACHER is a partner in the technology, transactions and intellectual property practice at Vison & Elkins. She is based in Houston and New York.

What do you think general counsel and their boards need to focus on in cybersecurity during 2022?

Devika Kornbacher, Vinson & Elkins LLP

Know what your cybersecurity program and response is. Do not outsource cybersecurity to your technology department. Now that the SEC and FTC and other regulators are paying more attention, cybersecurity is a board level and a general counsel level issue. You’re not going to get into the details of every piece of the program, but know that you have one; when it was last updated; when a tabletop exercise was done.

It’s also about positioning yourself for the future. If you’re a small company maybe that’s an exit through an IPO, or as a mid-sized company, an investment you’re doing. Either way, as a general counsel, and a board, you should know about the program for cybersecurity.

What are some of the best practices in this space?

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Get cyber insurance even if you’re not in a technology-centric area. Your incident response plan needs to be tailored not just to your industry but to your company.

From a board level, you want reporting on a regular basis. You should have a conversation about cybersecurity more than annually. If it is a public company, you need to consider it in your disclosures. And while that is a general counsel, chief compliance officer, or regulatory counsel

task, as the board, you want to know that those disclosures are being carefully thought through and consider the SEC guidelines that have been issued.

All employees and vendors who have access to your systems should be receiving cybersecurity training.

To read more of Devika’s insight into critical trends in cybersecurity, go to: https://www.outsidecounselsearch.com/ counsel/devika-kornbacher-483

ENERGY REGULATION MONIQUE WATSON is recognized for her deep knowledge and understanding of energy law, policy, economics, and regulation.

Her two decades of energy experience include senior legal roles at the Federal Energy Regulatory Commission (FERC).

For companies wanting to maintain traditional energy resources, how will you extend the longevity of those assets? Will there be a push to shut down existing infrastructure? How reliable are non-traditional resources if they’re not coupled with the more traditional resources?

What are some best practices?

Monique Watson,

Steptoe & Johnson LLP What are the key things that GCs and their boards should be thinking about over the coming year?

FERC now has a full slate of commissioners, and there have been some policies that had been pending because there wasn’t the full slate. One of those policies is incentives: should the Commission continue to give incentives for joining regional voluntary transmission organizations? There’s also the issue of grid modernization. How will that happen and how will FERC’s policies and rules impact that?

Also, how will the SEC look at ESG issues? I think there’s also going to be a lot more conversation between state commissions and the federal government in the future. For utilities and pipelines, will the rates that they get for borrowing to build infrastructure be tied to ESG evaluations?

‘‘

GCs should be self-auditing. How are we doing on governance, what does our board look like? What type of expertise do each of our board members have? Is it a diverse board? These are things that investors are looking at. Social issues are harder: some of that might need to focus on employee issues and working practices.

General counsel should look to conduct a self-assessment using standards that are verified, like the Global Reporting Initiative’s Sustainability Reporting Standards. The EU is more advanced in reporting than the U.S., so, if you have an international business, you should look to the standards of what colleagues in the UK and EU are reporting.

There’s a large number of people that are getting more senior; companies should think about succession planning.

ESG issues will continue to be at the forefront for employees, regulators and investors.

To read more of Monique’s insights into energy regulation, go to: https://www.outsidecounselsearch.com/counsel/monique-watson-265

It’s important to have an ESG expert who is tasked with understanding these issues and identifying vulnerability in leadership.” — Petrina Hall McDaniel

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LAW FIRMS ENVIRONMENTAL, SOCIAL AND GOVERNANCE (ESG) PETRINA HALL MCDANIEL is the co-leader of the Class Action & Multidistrict Litigation Practice and a partner at Squire Patton Boggs. She is also a Certified Information Privacy Professional (CIPP).

What are the main things that that GCs and their boards should be thinking about regarding ESG?

DANIELLE REYES is a counsel in Goodwin’s Financial Industry group and is a co-chair of the firm’s ESG & Impact practice.

What are the key issues in ESG that general counsel and their boards should be thinking about in 2022?

Petrina Hall McDaniel, Squire Patton Boggs

Start by defining what ESG means for your company.

To do that, you must be able to understand stakeholder concerns in your industry: what is expected in terms of disclosure and information? Ask, “What do our stakeholders expect from us?” Then you can start determining what framework makes sense in terms of disclosure, because there is an absence of regulatory guidance (though we do expect it to be forthcoming).

There are over 15 different types of reporting frameworks that companies can choose from. One of the more popular frameworks with institutional investors is the SASB framework (Sustainability Accounting Standards Board), which is seen as a gold standard because it describes sustainability disclosures tailored to 70 different industries and over 10 sectors.

What are examples of best practice?

It’s important to have an ESG expert who is tasked with understanding these issues and identifying vulnerability in leadership. When you begin considering ESG metrics, you’re collecting lots of data, and you need to be able to map that data. You need to make sure that that information is accurate. So, it’s important to make sure that expertise is woven in at different levels in the company, and that someone owns the function and can report the data in a consistent way, much like you would report financial data.

Consistency is a defining theme here, and making sure that you have someone quarterbacking that process internally.

To read more of Petrina’s insights into critical trends in ESG, go to: https://www.outsidecounselsearch.com/counsel/petrina-mc-daniel-471

Danielle Reyes, For public companies, the Goodwin Procter SEC has made it very clear that they will come out with new disclosure requirements for ESG, starting with climate change. There’s a move from ESG being a ‘nice to have’ initiative to a mandatory compliance issue, just like any other legal or regulatory requirement.

One area that companies have been tripped up on has been marketing of ESG products or offerings. It can’t just be the marketing team approving the materials. There should be a thorough legal and compliance review of any public-facing statement about ESG. There is a branding and customer engagement opportunity with ESG that is unique. Because of that, there is an opportunity for the legal team to engage with their management teams to present a strategy around ESG compliance that could lead to business generation.

Now that the SEC is more active on ESG issues, things will get a lot more prescriptive around what must be disclosed.

These new requirements will also help advance the overall objectives of ESG; for example, the push for disclosures on board member diversity. Many companies will have to have more diverse boards or explain why they don’t have them.

Any examples of best practice?

When choosing a head of ESG or Sustainability, hire somebody who has those skillsets. Failing that, hire somebody who has a strong interest in this area and provide them with as many resources as they need to become an expert quickly.

Give these professionals the space to focus and not have them run an ESG function off the side of their desk.

To read more of Danielle’s insights into critical trends in ESG, go to: https://www.outsidecounselsearch.com/counsel/danielle-reyes-813

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FINTECH regulators to confirm there is no regulatory regime applicable. Some people may assume that the current regulatory regime for banks or securities firms does not apply to fintech products, but that’s not the correct approach to take.

What do you see as best practices from clients in this space?

Franca Harris Gutierrez, WilmerHale

Tiffany J. Smith, WilmerHale

FRANCA HARRIS GUTIERREZ and TIFFANY J. SMITH at WilmerHale advise clients on a range of fintech matters.

Franca is a partner who leads the Financial Institutions Practice and Tiffany is a partner focusing on broker-dealers and other financial institutions, including financial technology companies.

What would be a key piece of advice you would give GCs and boards on fintech?

Franca: It’s important for GCs and boards to fully understand the potential fintech product or service. Understanding that functionality helps better guide discussions about risk and how this integrates into the value the product provides to clients.

Tiffany: It’s also good to understand what regulations typically apply to that sector. If it’s a banking product, a lending product or a security product, it is important to think about the product from that lens, and then figure out whether there are regulations that apply to the product as it is, or whether you need to seek guidance from relevant

Franca: Our fintech clients who are best positioned to grow their businesses to scale have a regulatory philosophy that will take them through to growth. They are invested in getting themselves compliant within a regulatory framework early on. Thinking you can just disrupt the existing regulatory framework never tends to end well!

Tiffany: Understanding the most rigorous version of regulation even if it’s not common practice in your sector.

Many tech firms have the assumption that because they’re building the technology, they’re not triggering any type of financial regulatory obligation, but those coming from the financial world understand that there’s been iterations over time in which regulators have said that providing technology to do certain functions results in the technology firm itself becoming a regulated entity.

Franca: Providing clear information to customers about their rights and how their information and data will be used.

Fintech firms should also be able to demonstrate how, if there’s an issue that arises, customers can obtain redress.

Tiffany: Think about all the ways in which clients or consumers interacting with the product could be negatively impacted and then proactively solve for those risks. Bad practice has the potential to kill a business even in the absence of a regulatory requirement.

To read more insights on fintech, go to: https://www. outsidecounselsearch.com/counsel/Franca%20Harris%20 Gutierrez and https://www.outsidecounselsearch.com/ counsel/tiffany-smith-795

FAIR LENDING MEETS FINTECH What are the key areas that GCs and their board should focus on regarding innovation and fair lending during 2022?

JONICE GRAY TUCKER is a founding partner with Buckley LLP and a governing board member. She specializes in work with banks, non-bank financial institutions and other companies providing financial products and services.

Jonice Gray Tucker, Buckley LLP

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A key challenge is navigating the industry’s desire to be innovative in the current landscape of existing financial laws and regulations that were not written for these new products and services. This leads to a round hole/square peg type of problem as to the application of existing laws, and, in some ways, paves the way for the undesirable course regulation by enforcement action as the Government tries to keep pace with innovation but is unable to do so through existing regulation.

LAW FIRMS Fair lending and technological innovation are increasingly in step, yet at odds. Use of technology has numerous potential positives to expand access to credit throughout the product lifecycle; yet there is rising regulatory scrutiny, with concern that innovation can introduce illegal bias against members of protected classes. There are numerous laws that may come into play and a bevy of state and federal regulators expressing active interest in these issues.

The FTC is anticipated to become even more active in enforcement in the fintech sector. The CFPB can be expected to decrease some of the runway given for innovation in view of the tech-skepticism expressed by new Director Rohit Chopra.

Innovation holds the potential to pave a way for greater access to credit; yet there are concerns that such innovation could lead to discrimination in the lending lifecycle.

Among other things, there are concerns that use of alternative data, particularly in combination with algorithms that leverage artificial intelligence, can lead to bias against

members of protected classes. A number of regulatory agencies have expressed concern about ‘digital redlining’ (providing unequal access to products or services to people of protected classes through use of technology).

What should be done as best practices?

• Understand data and algorithms • Document data used, algorithms, and related development and execution procedures • Validate models and compare to traditional models • Enhance testing and monitoring, particularly where artificial intelligence may be involved • Develop written business justifications where use of data points may become a proxy for membership in a protected class, either individual or synergistically.

To read more of Jonice’s insights into fair lending and fintech, go to: https://www.outsidecounselsearch.com/ counsel/jtucker

SHAREHOLDER ACTIVISM ADÉ HEYLIGER is a partner in Weil’s Public Company Advisory Group.

He regularly advises public companies, corporate boards and foreign private issuers. He also counsels on shareholder activism, including proxy contests, shareholder proposals and Adé Heyliger, engagement, and provides Weil Gotshal guidance on a variety of corporate governance, disclosure and regulatory issues.

ther, the SEC’s recent rule adoption mandating universal proxy cards in contested elections will give activists easier access to a company’s proxy card and swing the incentive structure for settlement sharply in their favor.

The pandemic has pushed ESG efforts to the forefront. Companies are also having to answer to a broader group of stakeholders; not just shareholders, but employees, customers, suppliers and the communities in which they work. There’s a broader group of activists – not just shareholder activists, but what we might call stakeholder activists. ESG issues can be an entry point for an activist.

That’s what happened with Engine No. 1; ESG was the entry point, but it quickly pivoted to arguing that the Exxon board is not equipped to handle this new age and to take the company in new directions.

What should GCs and their boards be thinking about in relation to shareholder activism?

What are some best practices you see?

We are in a new age, where shareholders and other stakeholders want to be heard and are motivated to take action to be heard. Take Engine No. 1; few had heard of them before the Exxon contest, but that episode shows the value in shareholder engagement.

Public companies need to be proactive. Have a robust engagement plan where you are communicating with shareholders regularly. Don’t wait until there’s an activist shareholder. The message from Engine No. 1 was, ‘glad to hear from you now, but it’s a little too little, too late.’ Fur-

Know what issues are important to shareholders, particularly your biggest ones. In your materials you should be detailing your efforts to speak to these issues.

Proactively assess your board, their make-up and mix. Think like an activist and look for weaknesses. Are you as a board and a company aligned on your strategy and your purpose? Should that corporate strategy change? How valid is your corporate mission and does the board support that mission?

To read more of Adé’s insights into shareholder activism, go to: https://www.outsidecounselsearch.com/counsel/ade-heyliger-128

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HEADLINES COURTESY OF AMERICAN LAWYER MEDIA.

LAW FIRMS

Malicious Compliance Despite decades of diversity and inclusion initiatives, the law remains one of the least diverse professions in the United States, even in the wake of the racial reckoning that swept the country after the murder of George Floyd.

Now some experts are questioning whether law firms are engaging in activities that actively undercut diversity efforts – in the form of malicious compliance.

By BIHC Staff

M

ALICIOUS COMPLIANCE IS THE EVIL twin of performative diversity. While performative diversity pays lip service to diversity, equity and inclusion (DEI) initiatives, malicious compliance superficially complies with diversity requirements but actually undermines them.

Performatve diversity is engaging in DEI practices that are more about promoting an organization’s image than genuinely affecting its DEI outcomes. This includes symbolic gestures such as public statements, goodwill donations and actions that look supportive but amount to nothing.

While performative diversity may be unintentional, malicious compliance is about intentionally inflicting harm, by strictly following orders, rules or policies with the knowledge that such compliance will not create the result those policies were designed to achieve. It’s following the letter of the law, while violating its spirit.

Such actions may include denying origination credit to Black lawyers; a white partner making disparaging remarks about a Black attorney to clients; a firm sending a Black attorney’s work to a client without review by a partner; or putting a Black attorney on a pitch when they don’t have the relevant experience. Some firms pit one group against

another: for example, shutting out an underrepresented ethnicity in favor of another underrepresented group, such as white women.

“It happens every day,” says Donald Prophete, partner at Constangy, Brooks, Smith & Prophete LLP. “The person who is the least active in diversity is the one who will prostitute the system the fastest. When they’re at a pitch meeting and they need a Black face, they just throw a Black face in there, and then that Black face never sees a single trial.”

Prophete adds that even when Black lawyers are involved with major assignments, it’s often only because the involvement of diverse lawyers is “being measured by the client, but even then the Black face gets no attribution or doesn’t get the best assignments.”

The incentive is money, he says. “They will do whatever is necessary to bring the matter in. If you don’t have diversity and the client is saying, ‘do not show up with a room full of just white people,’ they will go get the mailroom attendant if necessary to give that pitching team some hue.”

This can result in Black lawyers not having access to the same opportunities as white lawyers.

However, there’s some debate about whether these actions are intentional. “I see deliberate acts that work to the

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Sandra Yamate

CEO, The Institute for Inclusion in the Legal Profession

disadvantage of people of color, and I have sometimes seen it with malice,” says Sandra Yamate, CEO of the Institute for Inclusion in the Legal Profession (IILP). But, she adds, “It’s more often a deliberate failure to recognize the institutional and systemic racism that exists in the country as a whole, but particularly in this profession. That denial is so deeply entrenched that many behaviors have the same impact as malicious racism.”

Some believe it’s more a case of unconscious bias at play. “I don’t think somebody starts off their day saying, ‘I’m not going to help this Black lawyer, this woman lawyer or this other minority lawyer succeed,’” says Silvia Coulter, a co-founding principal of LawVision, which provides a range of professional services to law firms. “But I also think that they aren’t intentionally saying, ‘let me go the extra step to make sure I can help this person be more successful.’ That’s the piece that’s missing; it’s behavioral change.”

Diversity consultant Effenus Henderson points out that micro-aggressions and micro-invalidations often come into play in many organizations unintentionally. He adds that people of color, irrespective of their professional role, “are extremely high-context individuals; they take in the full scope of what’s going on in a situation, whereas white men in particular, and white women to some degree, are very low context. It’s about the individual and the case relating to that individual circumstance and they don’t factor in extenuating circumstances.”

Intentional or not, the impact can be seen in the numbers. While law firms are hiring and promoting more people of color and women than they did 10 years ago, the level of diversity drops dramatically the higher up the ladder you look. Black lawyers represent less than 4% of all attorneys, 5.1% of associates, 2.2% of partners and just 2% of equity partners, according to a 2020 survey by Vault Career Intelligence and the Minority Corporate Counsel Association. One recent study of Black women partners produced no statistically significant findings because of the sheer lack of numbers.

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Adding to these dismal figures, Black lawyers are quitting law firms in droves, representing almost 6% of attorney departures. Veteran lawyers are also retiring. “A lot of the generation of women and minority lawyers who had first gone to law school in greater numbers in the late ’70s, early-to-mid-1980s are starting to reach retirement age now. We see them leaving the profession, many of them feeling like ‘I did all of this diversity work, and it didn’t really make a difference,’” says Yamate.

TACKLING MALICIOUS COMPLIANCE

Malicious compliance sets back DEI efforts because, as Prophete notes, such actions are “an inauthentic application of diversity.” He adds: “It’s not really only diversity, it’s also inclusion. It means that I have to get the work, I have to get the training, I have to get the remuneration, I have to get those things that will allow me to compete and to be whole in that system.”

Putting a stop to malicious compliance will require law firms, individual lawyers, their colleagues, allies and clients to undertake intentional efforts to counteract the unconscious and conscious biases that damage DEI initiatives and undermine Black lawyers.

For a start, law firms should stop playing check-the-box games. Macey Russell, a partner at Choate Hall & Stewart LLP, points to a backlash against Black lawyers, citing a study by IILP showing that once the definition of diversity expanded, Black lawyers lost ground. “It gave in-house lawyers who didn’t want to use us a reason to use somebody else,” he says. But following the murder of George Floyd, the tone shifted as more white partners had to engage in conversations on race not only at work, but also at home

Macey Russell

Partner, Choate Hall & Stewart

with their children. “The effect of George Floyd’s murder on corporate America has freed up Black in-house lawyers to talk about these issues and to be more vocal about wanting to support Black folks who are in law firms. Before that, Black in-house lawyers’ hands were tied. Now, they’re being asked, ‘what can we do to make a difference?’ This

‘‘

LAW FIRMS It’s not just about the individual behavior of leaders, it’s about the things that we inculcate in the system in terms of values and practices that also can undermine the attorney’s effectiveness or ability to progress in the organization.” —Donald Prophete

is what we can do: We have to find ways to educate and empower Black folks so they can survive in corporate America.”

Russell employs a variety of strategies to champion fairness within his law firm and counteract biases that may result in malicious compliance, including promoting ways to encourage white partners to mentor Black lawyers. Also, as baby boomers retire, the firm has included diversity in conversations on transitioning the retiring lawyers’ books of business. Russell also connects minority and summer associates at his firm with clients so the associates can gain valuable information about the client’s business objectives and outside counsel’s role in helping meet those objectives. “When the client steps in and says that a minority associate’s work is great, the associate’s stature in the firm is elevated. What are you going to do, tell the client that the work isn’t good?”

On the client side, some general counsels are demanding that a portion of their business be handled by diverse lawyers and threatening to slash fees or fire their law firm if it isn’t. Coca-Cola’s now-former GC, Bradley Gayton, threw down the gauntlet last January, requiring the company’s outside law firms to commit to ensuring that at least 30% of each of billed associate and partner time be from diverse attorneys, with at least half of that from Black attorneys.

Failure to meet that commitment over two quarters would result in a reduction of fees by 30%. Notably, the directive added: “Work performed by diverse attorneys is expected to be accretive to their development and advancement at the firm,” and demanded “transparency as to how origination, relationship, and matter credit is apportioned.”

A few months later, the company announced that Gayton had resigned, and the policy was under review. Coca-Cola is also facing a lawsuit charging that the mandate is a racial quota.

IT’S EVERYONE’S RESPONSIBILITY

Mandates aside, Donald Prophete recommends that clients ask pitching teams and individual lawyers targeted

Donald Prophete Partner, Constangy, Brooks, Smith & Prophete LLP.

questions that will allow them to determine the true role of diverse lawyers on their business. “When you get the sense that this is a performative attempt, ask that person in front of everybody, ‘what conversations have you had as to your role here, and what are you going to be doing on my files because I look forward to working with you and I need to understand your role to determine whether I want to augment your role in certain ways,’” he says. “Make sure you put the pitching firm on notice that you know what’s going on.” He emphasizes that the law firm has the obligation to not allow their people of color to be used as window dressing. “The pitching team should submit a very specific plan on how that person is going to be used on the matter, what their role is going to be and what their development opportunity is going to be.”

Corporate clients need to be savvier about what’s going on among their outside counsel. Says Sandra Yamate, “A lot of times you have corporate in-house counsel who may be very good at the kind of law they practice, but they may not understand how law firms operate because many of them left their firms before they made partner.”

Effenus Henderson adds that it’s important for law firms to address the structure of their systems and practices to combat bias and ensure that Black lawyers are successful.

“It’s not just about the individual behavior of leaders, it’s about the things that we inculcate in the system in terms of values and practices that also can undermine the attorney’s effectiveness or ability to progress in the organization. How you structure certain of your systems can make it harder for someone who’s different to succeed in the or-

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ganization.” This, he points out, includes asking, “How do you attract diverse talent to your firm? Are you attracting them with the requisite skills and knowledge to be successful in the firm? If you’re asking them to take a risky move out of an area that they’re very proficient in into one they’re less proficient in, and they need some level of development, sponsorship and coaching, what’s the process for allowing that to happen so that they don’t get downgraded in terms of performance outcomes?”

The challenge, notes Yamate, is to make sure lawyers of color get “the kind of work that builds your reputation, that gives you the expertise so when the next bigger case comes in, you’re a prime candidate to handle that.” Unfortunately, she says, “The problem is that the way many law firms assign work, whichever partner brings in the work gets to pick which lawyers are going to work on the matter.

Generally, he picks the lawyers that he thinks are good, but what he’s not trained to do is to appreciate how much his value judgment may be influenced by his own biases.”

As an example, Yamate cites work-allocation programs that were adopted by U.S. law firms after being successful-

ly implemented in the U.K. The original program, created

by Mason & Cook, helped to overcome the challenge of ensuring that lawyers of color get the same career-building quality and quantity of work assignments as their white counterparts. The system used Artificial Intelligence to control how new assignments were allocated, which helped to counteract bias.

After a pilot with 14 of the U.K.’s largest law firms, the findings showed that young attorneys received opportunities to get work enabling them to develop as lawyers. Productivity increased because work was more equitably allocated and lawyers had a more balanced workload, and it was more profitable given the distribution of work, which allowed all lawyers to stay busy and generate more revenue. “An added result was that they did better at retaining their diverse lawyers because the diverse lawyers were getting the same quality and quantity of work as the white lawyers,” she says.

Unfortunately, U.S. firms took shortcuts in implementing work-allocation programs, including assigning the design to people with little to no training for it. “So, no

Managing Through Malicious Compliance RFP REQUIRING DIVERSE SLATES

INTERVIEWING

STATEMENT TO SEND WORK TO BLACK PARTNERS

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ONBOARDING

QUARTERLY REVIEW OF UTILIZATION OF BLACK PARTNERS

TRAINING

WORK ALLOCATION

ENCOURAGING ATTORNEYS IN LEGAL DEPARTMENT TO UTILIZE BLACK PARTNERS

PARTNERSHIP DECISIONS

LAW FIRMS surprise, a lot of those programs ended up not working,” Yamate says. “Because they basically cut corners on cost, what ended up happening is they just wasted a lot of time; it’s like self-sabotage.”

Allies and colleagues are also accountable for creating equity and inclusion. Yamate says everyone can take greater responsibility to become better educated about the history of racial inequity in the U.S. and make an effort to get to know more diverse people. “Get to know some of your fellow lawyers who happen to be diverse one-on-one so that you start to realize that they’re not that different from you. The more you feel comfortable working with them, the more you’ll be able to work better with them and everybody will be happier.”

Prophete acts as an ally to lawyers of color at his firm and says they know to call him when they’re invited to a pitch meeting. “I’ll contact the person who invited them and say, ‘I understand that you have this person on a pitch – what’s their role going to be on the pitch, what kind of work are they going to get and how are they going to be evaluated on their importance to the client?’”

Black lawyers should also stand up for themselves and demand origination credit and credit for participating in pitches that land business. Silvia Coulter has advised a couple of her clients – one who originated business for a firm, and another who was being called out more often on pitches – to speak up before the issue of credit came up.

In the former case, the Black lawyer demanded origination credit after learning that the pitching team had planned to claim it; the latter refused to go out on any more pitches unless credit and billing were shared. Both received what they asked for.

“You have to take these steps to go after what you want and what you need, not only in your life but your career,” Coulter says. “Don’t leave it in the hands of others.”

And if one law firm isn’t a good fit, find another. While their structures may look similar, all law firms are not alike, Yamate says: “I have seen many lawyers who were miserable at one firm find happiness at another.”

Combating malicious compliance takes a concerted and collaborative effort by legal departments and the law firms with which they work. The actions above and below the arrow are those that legal departments can take to accelerate change.

The actions within the arrow are steps available to law firms.

FIRE FIRMS FOR NONCOMPLIANCE FEEDBACK AND EVALUATIONS

CONDUCT LEGAL SUMMIT TO SHOWCASE BLACK PARTNERS

PITCHES FOR WORK

CREDIT FOR WORK

BONUSES

IN-HOUSE INCENTIVIZED TO SEND WORK TO PARTNERS OF COLOR

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NETWORK

Presents

ELEVATING PARTNERS OF COLOR A showcase for Black, Latinx, Asian

2022 and South Asian partners

Elevating Partners of Color bridges the gap between in-house legal teams and partners of color.

This event introduces key clients to partners of color (Black, Latinx, Asian and South Asian) who are practicing in mission critical areas of corporate law and contributing to legal and strategic decisions that are shaping the business landscape.

JUNE 16, 2022

For more information please visit: tinyurl.com/4z4yk7ah

DEI STRATEGY

AN IMPER ATIVE TO DRIVE PROGRESS

Institutional investors like State Street and BlackRock no longer just ask the companies they invest in about their diversity statistics or initiatives; they want to know what these organizations’ diversity, equity and inclusion (DEI) strategies are. ‘What are your diversity goals and how will you ensure you achieve them?’ is becoming a basic question. A cohesive and informed DEI strategy is also increasingly an imperative for legal teams.

A significant area of focus is ensuring not just that professional development opportunities exist for all staff, but that Black talent can take full advantage of these. Tyson Foods and its general counsel Amy Tu have been hyper focused on a progressive talent development strategy. We hear from Tu, as well as from the Black direct reports under her who are benefitting from this approach.

Juliette Pryor is a leader who has mentored and guided many others on their journey to leadership. In her role as general counsel at Albertsons she has found, hired and developed an abundance of Black talent. Her actions – and the results she has achieved – give the lie to those who cite lack of diverse talent as a roadblock to progress in DEI. While developing a robust DEI strategy is crucial in so many ways, general counsel and chief legal officers also need to be mindful of the cross currents of political forces opposed to progress in this sphere. ‘Reverse discrimination’ suits are on the rise, often funded by right wing groups. Both legal leaders and their boards need to consider the potential challenges inherent in creating and implementing any DEI program.

The best approach is always a collaborative one. Target Corporation’s Don Liu shares his insights on how different groups can most effectively work together to create effective strategies and drive practical change.

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DEI STRATEGY Change is Not Intellectual: Learning Every Day ALM Reflects on Their Diversity Journey Representation is central to DEI. Seeing people like yourself in cultural representations affirms your position in the world and opens up possible futures. In the aftermath of George Floyd’s murder and the BLM movement, Black representation in the media has been under scrutiny.

This has led to more hiring of Black creatives and greater diversity of representation in the wider media. But business and legal media also need to interrogate their objectivity. Molly Miller, Chief Content Officer at ALM Media, describes ALM’s cultural journey in relation to DEI – one where the most valuable lessons may come from the bumps in the road. By Molly Miller

D

URING THE LAST TWO YEARS, RESILIENCE HAS BEEN A HOT TOPIC. There is the sense that when you trip up, if you pick yourself up and move on, you’re resilient. We say this about organizations as well. The successful ones hit bumps then leave the challenges behind. But sometimes ‘moving on’ is worse than the original blunder. Sometimes living with the mistake as a constant reminder of what not to do is the smartest way to move forward.

We in the ALM Global Newsroom faced this last year when we covered the abrupt departure of the General Counsel of Coca-Cola, Bradley Gayton. We wrote several stories about the move, attempting to address not only the fact of Gayton leaving, but whether the event was driven by his assertive initiatives to improve the diversity of Coke’s outside counsel.

We created a wave of reaction – from interest to confusion to disbelief to horror. Yes, other legal media outlets covered the departure, but we knew it was critical to look

at our own coverage head-on. Some of our editors, particularly on our ALM Global Newsroom Diversity Board, questioned our approach. Were we even-handed? Did we cover this kind of event in the same way when the primary actor was white? We asked ourselves – did we understand enough about what goes on in any company when prominent leaders leave?

Lloyd Johnson, publisher of The Black In-House Counsel Annual Report, called me to discuss the way the story was handled. He was particularly disturbed by how it got so much more focus than all the success stories of Black in-house counsel. He wrote a column (which we published) about what the media got wrong.

What became apparent from the many conversations that happened afterward was that we needed to revisit the coverage and learn from how we handled the story. The goal is not to leave the experience behind. The goal is to revisit it and assess what we are learning each and every day – to ask ourselves how we can do better with every story.

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Molly Miller

Chief Content Officer, ALM

So, what are the newsroom imperatives we now have in place?

Our Global Newsroom Diversity Board has been in existence since summer 2020, but this made us realize that it must have a very loud voice. It cannot simply be a group that meets and discusses issues. It has to have true impact by reviewing stories of concern and making sure opposing views and approaches are heard. We have made sure it is now empowered to make decisions.

We must have a constantly evolving diverse set of sources. Those who know newsrooms know reporters work under deadline and make many calls, and often the sources who pick up are the ones they already know. So we have to continually grow that resource list and it has to be as diverse as possible (and not only for diversity stories).

We must expose ourselves to insights that go deep into the day-to-day challenges of industry leaders we cover – and understand the impact of race and gender on those challenges. Nuance matters. Readers know when you don’t fully understand. We get comments from readers that we really ‘get’ complex intellectual property issues.

We want readers to recognize we understand an entire array of issues beyond practice area and industry. We hear that we do when it comes to our coverage of mental health issues. But what about race? We need to continually get more sophisticated and nuanced. We can’t do that without talking to people who do understand, who are leading change, who have experienced first-hand the

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challenges of racism and sexism and have a lot to say about what stories need to be told.

We cannot be driven by traffic alone. This is a big issue for every newsroom. Your subscribers are paying so you are not only dependent on advertising, which is based on traffic. But traffic matters for all business models. It tells you that your readers are engaging, spending time on your site, coming back for more. A story can go viral and that might signal success. But if you only look at those numbers, you can miss the fact that some traffic and engagement is not ‘healthy’; it did not support your strategy and is not a sustaining type of engagement.

Newsroom staff diversity is paramount. It cannot only be a stated goal. Newsrooms must create processes that ensure diversity of hiring. In our case, starting with the Global Newsroom Diversity Board, we created a recruitment committee and a pipeline committee. The pipeline committee made sure we were posting positions much more widely, including to the National Association of Black Journalists, the Asian American Journalists Association, the Association of LGBTQ Journalists and local organizations such as the Bay Area Black Journalists Association. The recruitment committee makes sure that a wider array of editors review resumés, so combating the risk of unconscious bias.

Change is not intellectual. Change has to take place at an organization’s core. ‘Being better’ is not a statement.

It is taking actions every day and continually being open to being wrong. Newsrooms that not only learn from errors but are willing to constantly review those mistakes and make necessary change will ultimately serve readers better than those that don’t. Once an organization proves that it is willing to hear the most negative feedback, the floodgates open. And that’s healthy. Because when you don’t hear from readers, it’s likely because they don’t care, they’ve given up on you. While the readers of this magazine may not yet believe our newsroom is everything it should be, we hope you know we want to hear what you think. And we promise to look at our challenges every day and make the necessary change – at our core.

DEI STRATEGY Making it Work

T

asha Norman is Executive Editor of ALM’s Young Professional Network and Director of Market Development. A media professional with more than 20 years of experience at ALM, she helped launch the ALM Global Newsroom five years ago. She writes the regular ‘How I Made It’ feature, covering the success stories of legal professionals, with particular focus on diverse lawyers. As one of the most senior Black editorial staff, Tasha gives her thoughts on the fallout from ALM’s reporting of Bradley Gayton’s departure from Coca-Cola and how this influenced the work already taking place on DEI within the whole organization. Tasha is a member of the Editorial DEI Committee at ALM. “It was important to take the lens inward to understand how this happened. The Editorial DEI Committee started by examining what mechanisms were in place – and which were not. We simultaneously focused on understanding the sensibility issue. Sensibility is central in diversity; being able to go to the reporters to ask, ‘Okay, what did we not understand about what went wrong?’

It was incredibly important to have those discussions. Once ideas were illuminated, on both the process and the sensibility side, that’s where the real work began.

Our Editorial Diversity Committee is built around working on both those issues: what we can do to effect change and make things more equitable, but also how we can have a better understanding of DEI issues. I’ve been in the media for a long time and there have been three or four different iterations of diversity initiatives since the 80s. Each time you start something new, everybody’s excited and then it fizzles. It’s important to stay focused: what can we do now that’s going to create lasting change? How can we ensure that we focus on working on that change in a consistent way that’s not going to peter out? We need to have those conversations and continue to do so until it becomes second nature.

The Editorial DEI Committee has subcommittees which focus on certain issues such as sources, mentoring, training and creative design. We asked, how do we measure DEI in all our stories? We needed to ensure that it’s a measurable and accountable metric in all our reporting. We created mechanisms to measure that, but such tools are meaningless unless everyone is accountable for using them. That’s where the Editorial DEI Committee came in. While it’s still a work in progress, what’s critical is that we’ve realized some of the challenges we’ve had and now we’re doing the work.

Tasha Norman Director of Market Development, ALM Executive Editor of ALM’s Young Professional Network Development

One way in which we’re doing this, which brings together the dual tracks of process and sensibility, is creating a resource list of diverse sources, who can speak across the whole range of topics. We can’t just use diverse voices for the diversity stories! But the list is meaningless if we don’t use it. As part of the editorial process, if writers do not have a diverse voice in a story, we ask why not. In the past, our writers didn’t really look at their sources via the lens of diversity and inclusion if it wasn’t a DEI focused piece. Now we start by asking: do we have enough diverse voices? Do you need to have a white, male voice here – is this the only source we can use?

It’s important to bring diverse sensibilities into the newsroom but also to nurture people once they are there. Across the editorial team (and the broader organization), we’ve created buddy systems as well as mentorship and career advancement programs. Our buddy system helps new hires navigate the culture and feel comfortable asking questions.

For example, a Black woman reporter might ask me, as another Black woman, ‘Is it okay if I wear braids to work – how will that be received?’ That more informal connection sits alongside our mentoring and training programs. The buddy system ensures people feel included in the ALM culture; the mentoring and training will ensure a path to progression.

This has created a system that keeps us accountable, but encourages ongoing interrogation: educating journalists to ask the right questions and consider how our whole audience will perceive a story. We often believe that impartiality is a given in journalism, but if you don’t analyze your processes, it’s easy to fall back on old assumptions. Now we’re looking at it differently, and examining it consciously.

That’s critical.”

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DENTONS, PROUD SPONSOR OF BIHC ANNUAL REPORT

Dentons' Global Perspective

Based on its structure of collaboration, Dentons aligns efforts across the Firm to promote connectivity and collaboration, anticipate issues and challenges, and share resourcing and knowledge. With more than 20,000 employees across more than 200 locations in more than 80 countries, Dentons is committed to a one-Firm mindset and cross-region partnerships.

B

uilding upon the global urgency of 2020, Dentons has spent the last year strengthening its internal initiatives and increasing collaboration with clients. In the US, Dentons relaunched its Practice Group Diversity Partner program, designed to embed diversity and inclusion in day-to-day practice operations, and concluded the first iteration of its Executive Mentoring Program, which pairs members of the US Board with African American and LGBTQ+ associates. The program is designed to increase the diversity of Dentons’ partnership and leadership ranks, fostering the exchange of ideas to educate its US Board members on their colleagues’ experiences, ultimately helping all become stronger and more effective leaders. Dentons’ Canada Region launched the 'Discussion to Disrupt' panel series and hosted two 'I Will Not Stand For' learning sessions, both of which focused on the diverse lived experiAshley Bell Thurbert Baker Partner, Atlanta Partner and co-leader of the U.S. ences of colleagues, clients Public Policy State Attorney General practice and community members.

Atlanta, Public Policy

Mason Davis Partner, Birmingham Litigation and Dispute Resolution

Gaile Gratton Greene Partner, Birmingham Litigation and Dispute Resolution

Wendell Faria Partner, Atlanta Corporate and Capital Markets

Lynn P. Harrison III Partner, New York Restructuring, Insolvency and Bankruptcy

Katie Jacobs Partner, Pittsburgh Litigation and Dispute Resolution

Karen Jordan Partner, St. Louis Managing Partner, Corporate

Erica Marshall-Forde Managing Partner, Barbados Employment and Labor

Ceasar C. Mitchell Jr. Partner, Atlanta Public Policy

Claude Montgomery Partner, New York, Restructuring, Insolvency and Bankruptcy

DENTONS, PROUD SPONSOR OF BIHC ANNUAL REPORT

HIGHLIGHT S • In 2021, Dentons launched its second annual Global Inclusion Survey, in addition to region-specific inclusion surveys in the Canada Region and the Latin America and the Caribbean Region.

• Signatory to Canada's BlackNorth Initiative Law Firm Pledge, a commitment to achieve a set of goals to address and end anti-Black and other forms of structural racism in the legal profession.

• Hosted our annual 'Navigating to Big Law' event inviting Black and Latinx students to hear from diverse Dentons lawyers about excelling in a Big Law environment.

• Achieved Mansfield Rule Certification Plus for considering at least 30% women, lawyers of color and LGBTQ+ lawyers for leadership positions and senior-level recruiting during 2021 and for attaining at least 30% diverse lawyer representation in a large number of our key leadership roles and committees. Dentons is participating in the Mansfield 5.0 round of certification in 2022.

• Launched the Avenue: Black Undergraduate Law Internship Program jointly with 11 other law firms in Canada. Avenue is a new paid internship program to help Black undergraduate students in Canada gain real-world experience in the legal industry. It provides individuals interested in a legal career with an opportunity to build their resumes and create a professional network.

• Awarded a scholarship in partnership with the Canadian Association of Urban Financial Professionals (CAUFP) to support a Black law student with an interest in law. Over the last 14 years, Dentons has committed over CA$160,000 to support Black law students in Canada.

Wendy Moody Partner, Edmonton Litigation and Dispute Resolution

Rodney Moore Partner, Atlanta Employment and Labor

Andrea Nicholls Canada CFO; Executive Sponsor of Dentons Canada’s Black Professionals Network, Montréal Finance

Helen Ogbara Reeves Partner, New York Venture Technology and Emerging Growth Companies

Presley Reed Partner, Washington, D.C. Energy

Gerald Roberts Partner, Indianapolis Intellectual Property and Technology

David Tandy Partner, Louisville Public Policy and Economic Development

Marlo Young Partner and Deputy General Counsel, Business Transactions New York, Capital Markets

Kori Williams Partner, Toronto Banking & Finance

Where the Talent Is: Juliette Pryor’s Keys to Developing a Diverse Team While many may claim it is difficult to develop diverse talent in law departments, Juliette Pryor seems to manage this repeatedly with ease.

Pryor, Executive Vice President and General Counsel at Albertsons Companies, has built a stellar reputation for helping her subordinates gain the skills and experience to become general counsels. At least eight lawyers who were former direct reports have now achieved that title, and many others are sure to reach that level in the years to come. Pryor’s disciples are diverse: they come from all walks of life and have varying backgrounds – proving that her methods work for everyone.

By Joyce Jones

140 BIHC ANNUAL REPORT

DEI STRATEGY

J

ULIETTE PRYOR HAS COMBINED BEST PRACTICES from what she learned as a lawyer for IBM and the Skadden Arps law firm; valuable mentoring and growth experiences gained as deputy general counsel and then general counsel of US Foods; and the experience of building and leading law departments at US Foods and Cox Enterprises. Now at Albertsons Companies, she is once again building a department with high-powered diverse talent at its core. In this exclusive interview, Pryor shares her insight into nurturing diverse talent in legal departments – and why this is so important.

BIHC: Companies often complain that they have challenges sourcing and developing Black talent. You have a track record of excellence in this area. What is your approach to seeking out and recruiting talented Black attorneys?

Juliette Pryor: I think the key is casting a broad net for talent, ensuring that your recruiters understand you want a diverse set of candidates, and to be thoughtful about what the key qualities of the role are. It’s also important to think critically about the places that talent might come from that provide the right kind of experiences and the right kind of skillset needed for the role. The more thoughtful you are about that, the better chance you have of casting a wider net and thereby seeing more diverse people in the recruitment pool.

BIHC: What kinds of talent and skillsets do you look for?

JP: It varies depending on the role, but I look for demonstration of really great judgment, a level of nimbleness, a tendency toward being commercially oriented and intellectual curiosity. I have found that those kinds of qualities in people coming from different walks of life is what is more determinative about an individual being successful in many legal department roles.

BIHC: Once you’ve determined what qualities you’re looking for, what’s the next step?

JP: Your panel of interviewers should have diverse experience and perspectives and be equipped with measurements that force more objectivity, not just who they personally clicked with. It should be based on qualities that you want to see in that particular role.

BIHC: Do you give guidance to recruiters when they are seeking diverse talent? Do you suggest what interviewers might ask diverse candidates?

JP: I don’t give guidance to recruiters on how to screen talent, or what interviewers should ask candidates. What

I do is share guidance on where to go and source, on the key qualities we want and on how serious and committed I am to seeing a diverse slate. That includes giving feedback when a slate comes back that’s not diverse.

BIHC: Are there any other sources you turn to when seeking talent besides recruiters?

JP: Our recruiters often utilize social media or engage organizations that have a focus on membership from underrepresented groups. We also encourage our team to tap their internal networks to help us ensure that we are casting a wide net.

BIHC: What are you doing to nurture and advance diverse talent once they come on board?

JP: One of my responsibilities as a leader is to develop all of our talent. That includes ensuring there are systems and practices in place to not leave people out of opportunities to get stretch assignments, to get visibility in the business and to be able to work in different areas in the business.

I also strive to ensure that people are getting real-time feedback along the way – not just annual reviews. We encourage all of our lawyers to seek feedback from both our clients and the leaders to whom they report, and to have a sense of ownership of their own journey and development.

We want to create an expectation and a culture where that dialogue and feedback is a part of the experience that we nurture within the department for all of our folks.

BIHC: So how do you nurture people and make sure they’re getting the feedback they need?

JP: In part it’s about ensuring that I have set a vision and expectation that is clearly articulated about our responsibility as senior leaders in the legal department – that we create the time and space and resources for that type of investment, development and feedback. I set an example in the way that I lead, and I hold my leaders accountable for spending that time to invest in the talent that reports to them.

BIHC: Have you found any methods that minimize the chance that interviewers will simply select the person they click with best?

JP: Often, what we think is most similar to us is perhaps someone being the same gender or of the same ethnic or racial background or having similar years of experience, or similar geography. But if we equip people with questions that focus on other skills and qualities that will really benefit

BIHC ANNUAL REPORT 141

“As a leader who believes in the value of diversity and as a diverse lawyer who has had the experience of having people investing in me, helping me build my skills, and giving me the time and the gift of feedback so I could grow and learn, I am very, very intentional about doing the same for every lawyer that I have on my team.”

the department and help the talent be successful in the role, we help people to get beyond those surface qualities and into deeper areas of understanding and connection.

We can be equipped with the right questions and tools and assessments to get beyond what could otherwise be just surface-level screening.

BIHC: What do you say to people who say that there’s not enough senior Black talent in the field of law?

JP: I think it’s a true statement. The stats speak for themselves. The numbers fall off absolutely both in corporate America and in private practice, so it’s something that we have to continually be focused on: to recruit, attract, develop and retain Black talent in our organization. It’s not something that happens just because we wish it to. We have to be intentional about it.

BIHC: Is Black talent more interested in going to white shoe law firms or coming to in-house legal department roles?

JP: There is no issue with Black talent having an interest in coming in-house. And I would challenge anyone who said the challenge is they can’t get diverse talent.

I think the bigger issue is, what do you do when the talent gets there? Are you giving recruits meaningful work?

Are you providing opportunities for growth and development? What are you doing to retain that talent? And that’s across the board; not just for Black lawyers. What are you doing for all of your folks to demonstrate that you’re invested in their success and their growth?

When you add factors around diversity including a

142 BIHC ANNUAL REPORT

candidate’s ethnic background, sexual orientation, or otherwise, that talent is even more sought after. If you’re not demonstrating your investment in that talent, then I think you should consider that talent to be at risk of somebody else scooping them up.

BIHC: Why is having a diverse law department important to you?

JP: First and foremost, I believe that diverse teams are more effective and generate better ideas and solutions for the business in the long run. If I’m trying to have a brainstorm with a group of people, if we all have the same life experiences, it’s not going to be much of a storm. So I want to bring people from different experiences, from different walks of life, different profiles and that’s what I want to see on my team so that we can really be the type of thought partner that the legal function seeks to be for the business here at Albertsons.

And secondly, I believe that the challenges of underrepresentation that we see in the legal profession and in other settings cannot be overcome if each of us is not doing our part to be intentional around seeking, attracting, recruiting and developing diverse talent. Otherwise, we perpetuate what we have.

As a leader who believes in the value of diversity and as a diverse lawyer who has had the experience of having people investing in me, helping me build my skills and giving me the time and the gift of feedback so I could grow and learn, I am very, very intentional about doing the same for every lawyer that I have on my team.

DEI STRATEGY

The Competitive Advantage: Development and Inclusivity

At Arkansas-based Tyson Foods, which boasts nearly 140,000 employees, Amy Tu, Chief Legal Officer and Secretary of Global Governance and Corporate Affairs (GGCA), has made a personal commitment to increasing diversity and ensuring that all members of the GGCA team have every opportunity to pursue their career as far as their ambitions will take them. By Joyce Jones

D

IVERSITY OF OUR WORKFORCE AND INCLUSIVENESS our workplace are absolute priorities, especially given the variety of rich experiences, skills and talents we have globally,” Tu explains. “We know that these priorities provide a competitive advantage to our business, but more important, they are fundamental to our company’s core values. To make meaningful progress, we must be committed personally to a healthy and open environment for diversity to thrive.”

Under Tu’s leadership, the GGCA team recently launched a 360-degree strategy and council for Diversity, Equity & Inclusion (DEI), which focuses on six pathways to drive positive outcomes. In partnership with internal teams and firms that Tyson works with externally, the initiative is establish-

ing policies that will “aggressively and relentlessly” drive DEI in Tyson’s workplaces. The DEI Council is led by members of the GGCA team and company senior executives to help engage employees and advance its goals.

According to Tu, the strategy includes creating an ecosystem that integrates the company’s spend data with DEI data to gain better insight into how its investments are being made and whether those investments help achieve DEI goals. Tu’s department has also redesigned its preferred provider network to include DEI priorities and monitors diversity data to ensure that outside firms are giving diverse attorneys opportunities to work on Tyson projects, going so far as to develop scorecards to measure performance.

BIHC ANNUAL REPORT 143

“We are re-energizing our relationships with partner firms to provide feedback on progress while rewarding those who are exceeding expectations and engaging in different opportunities for pro bono support, including law, compliance, government affairs, audit and communications support to women- and minority-owned startups,” Tu says.

There is often reluctance among diverse employees to put themselves forward for opportunities to lead that would move their careers forward. That may be due in part to a dearth of role models who understand or share their journeys. But Tu, a Chinese American woman, goes the extra mile to ensure that her team members can take advantage of opportunities they might not have under a different leader.

Darryl Wilson, who serves as corporate counsel in GGCA’s commercial litigation division, has worked at Tyson for seven months. It is his first experience working in a corporate environment. Tu was on his interview panel and “was very open and willing to talk about her journey,” he reDarryl Wilson calls, which demonstrated a level of care that increased his desire to join the company.

“She showed me that she’s a general counsel who understands the background of diverse attorneys and what they have to do to get to where they want to be. It showed a commitment and willingness to pour into team mem-

bers, which was definitely a reason to join Tyson,” he says.

Wilson, who is vice chair of the DEI Council, shared how Tu joins him and other members of the commercial litigation team for lunch on an almost weekly basis to get to know them better and hear their perspectives on the cases they’re working on.

“Our bosses are our bosses, obviously, but she wants to communicate directly with the lawyers handling particular matters, especially ones that are high risk. She prides herself on having connections with the members on her law team instead of getting all of the information from the assistant general counsels,” he says.

Tu also provides team members opportunities to interact with other higher ups whose paths they would not normally cross, such as the time she invited Wilson to attend the grand opening of Tyson’s Humboldt plant in Tennessee. This enabled him to interface with senior vice presidents and other business leaders.

“On the flight, I got to sit across from our then-CEO and have a conversation with him about ways to help the business grow and show team appreciation,” Wilson says, adding that such experiences helped bring him out of his shell.

ACCELERATING DEI

Advancing DEI has always been a priority for Tu. “In my role, I feel that I have a special responsibility to accelerate DEI through education and by action. In order for our team members to believe there is opportunity for them to lead and develop, they have to see the possibilities,” she says. Her team members are encouraged to actively participate in business resource groups, which have leadership visibility across the company to advance various causes.

“As a company, we made a commitment in fiscal year 2021 to have diverse candidate pools for manager positions and above for at least 80% of the roles and we’ve

As a company, we made a commitment in fiscal year 2021 to have diverse candidate pools for manager positions and above for at least 80% of the roles and we’ve over-delivered.”

– Amy Tu 144 BIHC ANNUAL REPORT

DEI STRATEGY over-delivered. In the last two years within the Law Department, we’ve increased our racial and ethnic diversity – by double in some cases – and continue to increase our representation of LGBTQ+ and veteran team members,” Tu adds.

When asked where she looks for diverse talent, Tu says enthusiastically, “Everywhere!

Diversity comes in all shapes, sizes and forms. What is most important is to have an inclusive environment where people feel comfortable being themselves – a space that is free from judgment and fosters creative thinking.”

Tu has found that tapping into universities is a good way to build a pipeline of diverse talent. Tyson offers externship and internship programs to expose college students to corporate work, which gives the company visibility and the opportunity to engage with potential future talent. “We are also exploring opportunities to expand our reach beyond the region and continue to seek out opportunities and partnerships where we can elevate our DEI priorities.”

Tu’s zeal for this mission has spread companywide. An overwhelming number of applicants applied to join the DEI Council and its members are highly engaged. They are taking on additional responsibilities and gaining more visibility at higher levels in the Tyson organization.

“We just need to create the environment to allow for natural and organic growth,” Tu says.

Michelle Georges, who is an attorney in Tyson’s Prepared Foods Business Unit, credits Tu for Tyson’s improvement in creating an environment where discussion on diversity and inclusion can happen. She notes that changes at the company happened very soon after Tu arrived.

“Up to that point, leadership consisted primarily of white males, so I was happy Michelle Georges to see someone who did not fit that mold assume such a prominent position at our company and in my department,” she says.

Chevon Fuller Vice President and Associate General Counsel, Global Business and People Law

Georges earned her J.D. several years after earning her bachelor’s degree and began her career at Tyson as a paralegal because it was the only position available at the time. She had hope that she could transition to the inhouse team in the future. Soon after Tu became General Counsel and restructured the department, an attorney role opened up. Georges applied and got the job.

Georges, who serves on the DEI Council, believes that company leadership has experienced an evolution thanks to Tu. She says senior leaders, like the vice president who is mentoring her, are embracing opportunities to uplift more junior team members. Georges also believes she has had more opportunities to present in front of senior leaders like Tu than she would have had previously.

Tu is also credited with increasing company membership in various organizations, such as the Minority Corporate Counsel Association (MCCA), Black In-House Counsel and the American Bar Association, simply by encouraging attorneys to join and participate in webinars and meetings for Black in-house counsel. Tu believes that active participation in such organizations demonstrates Tyson’s commitment to diversity and career growth and enables the corporation to share best practices and network with others who share its values.

“You have to be willing to be creative in your approach to finding diverse talent. You may have to go outside the avenues you’ve previously relied on. This means being open to engaging with new and different organizations to change and broaden your network. If you are facing challenges, such as location, you have to be much more creative in what you offer and where and how you look in order to overcome that challenge,” Tu explains.

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DEI

6 Pathways to Impact

U

nder Tu’s leadership, the GGCA team recently launched a 360-degree strategy and council for Diversity, Equity & Inclusion (DEI), which focuses on six pathways to drive positive outcomes.

DE&I Council The body that provides day-to-day leadership for DE&I efforts. Members are selected through a robust application and interview process.

Governance Pro Bono Beyond legal assistance, this program provides resources from across the CLO organization including legal, communications, audit, and more.

Human Resources A partnership with HR to implement strategies around candidate interviews and hiring, retention, and training.

360 Degree Approach We focus our efforts across multiple areas of impact: internal, outside counsel/vendors, DE&I organizations, and our community.

Good Faith Efforts Each Team Member takes actions to engage with and support DE&I programs and activities.

Outside Counsel and Vendors We partner with firms and companies that share our commitment to DE&I.

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DEI STRATEGY “She understands the challenges that people face. She makes DEI a very important part of team development and to me that makes a world of difference.”– Sainabou M. Sonko

COMMITMENT TO PROFESSIONAL DEVELOPMENT

With Tu helping to lead, Tyson is creating an environment that fosters career development.

“The message we continue to drive is that professional development and a growth mindset are always important – no matter where a person is in their career,” says Tu. “This begins on day one in a role and continues to grow from there. When you hire someone, it is because you see the value they can bring to a role. As leaders, we must invest in that potential – provide opportunities to stretch and provide room to fail.”

As part of Tyson’s commitment to career development, a Law Progression program has been implemented to clearly define career paths in the department and the requirements for progression. A steering committee composed of law leaders oversees the nomination and selection process for progression to ensure there is transparency about expectations and development to foster and enable growth as a world-class organization.

Regardless of a person’s identity group, Tyson looks for a variety of characteristics in all prospective employees, including intellectual curiosity, diverse professional and personal experiences, authenticity, a sense of humor and a clear passion for the work that they do.

“One thing we do at Tyson is to ensure not only a diverse pool, but a diverse panel conducting the job interviews. That means making sure you have your interviewers reflect diversity and inclusion as much as your candidate slate. Then, empower them to ask the questions to draw out those characteristics and look at past experiences and facilitate conversations that bring those traits to light,” Tu explains.

When Sainabou Sonko, corporate counsel for Global Litigation, was being recruited a year ago, Tu was one of

her interviewers. “For someone in her position to make time to meet candidates and get to know them was for me very telling about the type of leader she is,” Sonko says. “And she continues to make herself available to candidates after they join Tyson. We can have one-on-one time with her, and she makes it very obvious that she’s available to talk if needed. She is a hands-on manager who also lets us work independently but is always available to help.”

Tu being a woman and person of color in such a powerful position is also important to Sonko. Had Tu not created the DEI Council (which Sonko serves on), she feels her career might not have evolved the way it has. Being a member of the Council has put her in a leadership position that she may not have been in otherwise, and it has also increased her ability to learn from Tu. Explains Sonko: “She understands the challenges that people face.

She makes DEI a very important part of team development and to me that makes a world of difference.”

Tu, who serves as the executive sponsor for Tyson’s Asian & Allies and Women’s Business Resource Groups and on MCCA’s board, believes it is her obligation to pay forward the extraordinary success she has achieved so that others can also reach their career goals.

She says, “Make it a priority, then show up and engage.

Bring your passion and it will inspire others. And talk about it – share that passion to get the word out. It’s also important to understand and channel your sphere of influence.”

With the roles she holds at Tyson and the MCCA, Tu says, “I am able to elevate and amplify the message of equity for team members and legal professionals. Playing an active role in mentoring diverse talent is an absolute expectation I have for my leaders. It is critical to take action and find opportunities to pay it forward.”

BIHC ANNUAL REPORT 147

LINKLATERS, PROUD SPONSOR OF BIHC ANNUAL REPORT

Linklaters: D&I and business objectives go hand in hand.

Linklaters has made a public pledge to improve representation of Black and Latinx minorities and ethnic lawyers. The firm is using a fivepillar plan to achieve that goal: enabling the next generation to reach their aspirations; discovering and developing Black professionals into the firm; focusing on creating an inclusive culture; improving the playing field to make sure everyone has opportunities in the firm; and setting up partner mentors.

Richard C. Smith is a versatile white-collar defense and trial lawyer based in the firm’s DC Office. He is Senior Sponsor for the Black Affinity Network of the Americans (BANA) at Linklaters as Partner Advocate. Richard shares his career journey and why Linklaters is so focused on creating an inclusive culture.

and how change was made through the law — that’s what interested me in the law. When you grow up in that environment you want to affect change. If you're going to make a difference and make lives better for others, you have to understand how the legal system works to be in a position to advocate for others.

Why did you become a lawyer?

What have your experiences in government brought your career?

I grew up in Atlanta and later moved with my family to Alabama, going from a school that was all African American to a place where they were just starting to integrate schools. When I arrived, it was a tense environment; there were riots, and if I missed the bus my teammates drove me to my side of town to make sure I got home without getting beat up.

In the ninth grade, I had an African American business class teacher who spoke about change,

Governmental experience helped me understand how to relate to a jury, because later I was trying cases in jury pools of other people that didn't look or sound like me — 75% Anglo Saxon Protestant — an invaluable experience I wouldn’t have gotten anywhere else. Later, as a state prosecutor to the federal court in Houston, I learned to try cases to a Latinx jury pool, with 90% Latinx, 8% Anglo Saxon Protestant, and 2% Black.

Five years as a state prosecutor and 14 as a federal prosecutor allowed me to really hone my craft as a trial lawyer — in a courtroom, in any state, whether a federal or state court — which fast-forwarded my career. I was able to leave the Department of Justice and enter the private practice of law as a partner from day one.

What would be your top three pieces of advice to your younger self?

One: when you're in school, don't be there just to survive; be there to win, get the best grades you can, and take advantage of the extracurricular activities so that you can better position yourself to compete for positions in the private sector. Do the moot courts, the trial teams, and write for the journals.

Two: take advantage of mentorship. In big law, less than 3% of partners in America are Black. In a heavily white male-dominated environment it becomes important to be able to find mentors and sponsors who don't look like you.

Thirdly: do what you love to do. When I'm trying cases, people say that it is a lot of work. To me, it’s not, because I love it. I'm willing to do the things that it takes to do that to perfect my craft.

And when you perfect your craft, then reach back and teach someone else, because the profession will never become diverse otherwise.

You recently became Partner Advocate for the African American affinity group, representing all African American members of staff. Why is inclusivity so important, and what does this reveal about Linklaters’ approach?

When I got hired here, I was asked to serve as the Senior Sponsor for the Black Affinity Network

“The firm leadership believes that being diverse and inclusive makes for a better law firm and they live what they preach.”

— Richard C. Smith

of the Americans (BANA) as Partner Advocate.

It's an opportunity to help the firm reach its D&I goals, which is to create an inclusive culture and environment for everyone, regardless of background, identity, or circumstances, pushing for people to reach their full potential.

DEI STRATEGY

Coming Together Don Liu, Chief Legal and Risk Officer at Target, shares his thoughts on why collaboration and honest dialogue is needed now more than ever across diverse communities. He also deconstructs attitudes that have traditionally hampered connectivity between the Black and the Asian Pacific American communities.

By Don Liu

I

GREW UP IN A PREDOMINANTLY BLACK NEIGHBORHOOD, and was the only Asian student in my elementary school. My environment rarely reflected the perspectives of the majority white U.S. population at that time but also lacked a diversity of perspectives. In my teens, my family moved to a suburban town that was majority white. Once again, I was an outlier; one of only a few non-white teens. This situation lasted until I went to college – where, for the first time, I experienced true diversity in action. Those experiences taught me the difference between diversity of thought and diverse representation – and how both of these concepts work together to form better communities and create real impact.

The common aspect of the environments I grew up in was a lack of diversity. I learned similar lessons as someone ‘different’ in both communities. To uncover true diversity, you need a critical mass of people with dimensions of difference that span race, gender, sexual identity, cultural background and more. Being ‘the only one’ in a community is difficult – but, more importantly, it’s unproductive to organizational, community or societal progress.

Later in life, I gained the authority to shape the diversity of my work and community organizations. When I found myself in positions of influence, I aimed for a critical mass of diversity, so that nobody in any room would be ‘the only one.’

groups will go through various levels of uncomfortable discussion, emotion and change. This is part and parcel of significant and necessary societal shifts.

For example, consider the majority white neighborhood of my teenage years. Over time, the neighborhood became more diverse. As more non-white families moved into town, some of the white students at my school expressed discomfort. Sometimes that discomfort was based on initial reactions to change and would subside.

Other times, it was simply racism. As an adult, I now recognize the generational indoctrination of racism that we’ve continued to see within our American institutions and globally. So, those deeper sets of beliefs and opinions from some students would take a much more critical (and uncomfortable) effort to unlearn.

Overcoming stigmas is a journey for all. Sometimes, as leaders, we are too quick to conflate inclusivity with everyone being comfortable. But the journey to inclusivity nearly always involves some level of discomfort.

I talk about these topics with my own team at Target.

It’s what I call ‘getting comfortable with being uncomfortable.’ If you can’t get comfortable with being uncomfortable, then change isn’t going to happen. Leaders must be able to guide their teams through this process and should proactively embrace conversations and changes that are perceived as ‘difficult.’

GETTING COMFORTABLE WITH THE UNCOMFORTABLE

KEEP LEARNING FROM HISTORY

One element often overlooked in discussions around diversity, equity and inclusion (DEI) is that, before achieving a critical mass of diversity, there will be periods of discomfort. Many individuals in majority and minority

Another critical element of enacting meaningful social change is starting with data and insights. Understanding and deconstructing the relationships between different communities in the U.S. is crucial to breaking down barriers and bringing people together.

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One area that I am passionate about is shifting common misunderstandings around relationships between Asian Americans and the Black community, both historically and over the last 18 months. For example, there’s an impression, emphasized in media coverage, that most hate attacks against Asian Americans are carried out by Black perpetrators. This is not true.

A study from 2020 by the University of Michigan found consistent over-reporting of incidents featuring Black-on-Asian hate crimes in the media. This assumption that Black hostility is driving the current epidemic of anti-Asian racism and violence pushes these communities further apart. However, data shows that in the majority of instances the perpetrators of abuse were white males.

Once you realize this is not a Black-on-Asian problem, it is important to take stock and avoid incorrect assumptions that could lead to flawed policies.

It is also crucial to understand where stereotypes historically stem from. Whether it’s the LA riots in the early 1990s or generally perceived tensions that exist in Black

business in a Black neighborhood. When the store faced theft issues, the majority of perpetrators were Black. The pastor then acknowledged statistical insights that point to geography – rather than a false Black-on-Asian crime narrative – and pointed out that the majority of the business’ paying customers were also Black.

Conversely, the Black pastor, who grew up in a predominantly Black neighborhood, commonly heard the opinion that the Asian business owners should have done more to integrate themselves into that neighborhood.

The Black population felt that these businesses made money from their patronage, but were not making an effort to support neighborhood activities or make friends outside of Asian bubbles.

Ultimately, the pastors concluded that the more you confront stereotypes, misunderstandings and incorrect assumptions, the easier it is to come together with common purpose. Normalizing these discussions and getting comfortable with being uncomfortable leads us to better outcomes and solutions.

To begin to see beyond deeply rooted stereotypes, we must acknowledge the pervasiveness of everyday prejudice and discrimination. To some degree, both conscious and unconscious biases are innate human qualities.” neighborhoods where a high percentage of business owners are Asian, it’s helpful to know what has shaped these issues over time.

To begin to see beyond deeply rooted stereotypes, we must acknowledge the pervasiveness of everyday prejudice and discrimination. To some degree, both conscious and unconscious biases are innate human qualities. Active listening and letting go of our assumptions are great first steps toward improvement. One example I recently saw was a debate between two pastors – one Black, one Asian – discussing harmful and incorrect impressions between different racial groups. The pastors uncovered the origins from which some of these misunderstandings emerged. The Asian pastor had relatives that owned a

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WHAT THIS MEANS IN THE LEGAL PROFESSION

These ideas – hitting a critical mass of diversity and making human connections to debunk myths – are relevant in the legal profession. But what steps do we need to take to ensure meaningful change? Are there practical ways that Black lawyers, Asian American lawyers – and, frankly, all lawyers – can collaborate for the good of all?

The short answer is yes. By following several fundamentals, as a collective set of professionals, we will gain knowledge, uncover and admit what we don’t know and become increasingly comfortable with the discomfort of change.

DEI STRATEGY DATA IS A GREAT STARTING POINT, BUT IT NEEDS TO BE RELIABLE:

Data can help determine if progress is being made. With baseline data in hand, you can make annual and monthly comparisons to determine if you’re headed in the right direction. With no measurement over time, strategies are baseless and lead to unsubstantiated results.

But data can be manipulated or misrepresented. Data sources should be verified, and metrics should be double checked. We need to be able to trust data and understand it in context. For example, consider regional demographics. A law firm in Minnesota with 10% Latinx representation would likely get more credit for diversity compared to a law firm in Miami with the same statistic, given the demographic makeups of those states.

CLIENTS NEED TO LOOK AT THEIR DATA, TOO:

At large corporations, such as Target, we often gather background data on our law firms, including their employee demographics (e.g., gender, race, etc.). We aim to work with firms that represent the same diverse values we hold.

Companies like Target regularly disclose DEI data. This approach to information-sharing sets expectations with business stakeholders and the public, since they can now measure against your progress over time. It’s a starting point, and if you work at a company that is at least willing to make commitments to DEI – regardless of where you begin and the journey ahead – you’ll likely see progress.

THERE’S NO MAGIC PILL:

Like trying to lose weight, there is no magic pill. We can hire a personal trainer but if we don’t do the work, we won’t see the results. The same concepts apply to appointing DEI professionals and champions. It’s about behavioral change. Consistency leads to meaningful progress. This may take the form of several smaller actions, but as long as you measure and track the data, every step forward counts.

PRIORITIZE:

We must prioritize our efforts to ensure we are moving in the right direction. For example, there are not enough Black lawyers, due to a number of systemic barriers. So, prioritizing how to increase the number of Black legal professionals is necessary to create meaningful repre-

sentation in our field. In 2020, Target announced a goal of increasing the number of Black team members across the company by 20%. Some in other communities of color said, “well, what about us?” Responding to Asian and Latinx individuals who asked why Target was prioritizing Black team members at this juncture did create discomfort. But we were comfortable with the uncomfortable conversation because, while all disenfranchised and communities of color deserve significant commitments, the data showed that the Black community had the largest gap for us (and many other companies), which led to prioritizing that now.

IT TAKES A COLLECTIVE EFFORT:

As legal professionals, we have to stand together. For example, I want to see more non-Black lawyers engaged in promoting Black lawyers. It will take all of us to tackle the issues that negatively impact Black individuals in the legal industry.

History shows that it takes a collective effort to raise up marginalized communities. During the 1960s Civil Rights movement, change had to be mostly enacted by white lawmakers. More recently, same-sex marriage was legalized in the U.S. mostly by heterosexual-identifying lawmakers. To enact momentous change, it takes a critical mass of diverse individuals coming together to get uncomfortable for the welfare of us all.

NONE OF US HAVE ALL THE ANSWERS, BUT WE’RE LEARNING TOGETHER:

Discussions around DEI are uncomfortable because they force us to deal with the unknown. For lawyers, this can be especially hard because we’re trained to find the ‘right’ answer. Systemic issues are not solved overnight, especially when it comes to social justice. However, we can continue making real change by implementing equitable policies and procedures.

We only learn by first acknowledging that we don’t know everything. If you cannot acknowledge a lack of understanding about topics, you will never successfully learn about them. Collectively and individually, growth and change are essential pieces of humanity. When we check our egos and biases at the door, we are able to build an inclusivity that benefits everyone and makes the world a better place to live in – now, and hopefully for generations to come.

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Risk vs. Progress How Companies Can Avoid Being Caught Between a Rock and A Hard Place As America seeks to confront the stark reality of structural racism, many businesses across the country are exploring what they can do to address inequality. Social and cultural shifts, too, are amplifying the calls for businesses to do more, with a heightened focus on the social responsibility of corporate America. However, as companies seek to act to address racial inequality, they must do so in ways that mitigate legal risks. By Jodi Bartle

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DEI STRATEGY

C

ONVERSATIONS AROUND INEQUALITY ARE NOT NEW, but after George Floyd’s murder, something clicked for many Americans. Following that tragic event, an increasing number of entities have become more receptive to demands for racial equality. The pressure to act on calls for change came from a variety of quarters. Chief among them were the national focus on racial inequality and the Black Lives Matter campaign. Additionally, companies are facing the impact of the fledgling environmental, social and governance (ESG) movement, and a generational shift in expectations regarding the extent to which corporations should reflect their younger employees’ values on issues of public concern. Together these factors have heightened the pressure on America’s businesses to consider their role in combatting social and racial inequality.

In response, companies have taken a variety of approaches. Some have issued statements of support for

different from the work they do every day: defining risks and managing trade-offs. Going forward, general counsels must help their clients navigate the competing pressures with respect to racial equity measures. They ought to consider best practices and carefully attend to the key choices – such as programmatic design and communications strategies – that influence the overall risk profile of corporate initiatives, ideally in partnership with legal experts on civil rights and antidiscrimination law.

ACKNOWLEDGE THE RECKONING

At many companies, there are mandates from the C-suite to be responsive in these areas. This can be viewed as an initial phase of corporate America’s ‘racial reckoning’ where there are concrete actions taken to confront inequality. But there is also some indication that, compounding external pressure, there is hydraulic pressure internally from companies’ own workforces to ask

Many younger employees carry a more activist mentality with them to the workplace and do not necessarily want space between the things they care about, the diversity they have experienced in college and the places where they work.”

Black employees and customers or made racial equity commitments. Others, such as Airbnb and Citibank, have undertaken civil rights audits or reviews. Shareholders have played an active role in this process, too, by calling for workplace reviews and other measures.

As businesses move into uncharted waters, their leadership – and general counsels in particular – will be charged with the important task of determining how to execute racial equity commitments while mitigating risk. Increased regulatory scrutiny, as well as litigation threats from activist organizations, could pose challenges to efforts to address structural racism. One need look no further than courts’ invalidation of President Biden’s programs involving relief for disadvantaged farmers and restauranteurs. Some efforts at leveling the playing field face legal pushback. Although these risks may seem sui generis, the challenges facing chief legal officers are no

questions about the fairness of their business and workforce practices.

Many employees now expect more from work than just a paycheck and a sturdy desk. Instead of looking to peer groups for conversations around social issues, people now often expect their employer to take a stand. Many younger employees carry a more activist mentality with them to the workplace and do not necessarily want space between the things they care about, the diversity they have experienced in college and the places where they work.

Thus, there are external and internal pressures on organizations to address inequality, in the form of proposals for racial equity audits, questions around tech and the consequences of all this for democracy and human rights. This inside/outside game accentuates the impetus for change, and business leaders are becoming more prepared to take on some risk because they desire this change also.

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Racial Equity Related Shareholder Proposal – 2021 Proxy Season COMPANY

INDUSTRY

PROPOSAL

RESULTS

Johnson & Johnson

Manufacturing

Conduct racial equity audit

The proposal failed with 34% of shareholders voting in support.

Amazon

Retail

Conduct racial equity audit

The proposal failed with 44% of shareholders voting in support.

Walmart

Retail

Report on whether and how Walmart’s racial justice goals and commitments align with employee starting pay

The proposal failed with 12% of shareholders voting in support.

Goldman’s Sachs

Financial Services

Conduct racial equity audit

The proposal failed with 20% of shareholders voting in support.

BlackRock

Financial Services

Conduct racial equity audit

The proposal was withdrawn after BlackRock agreed to conduct a diversity review (BlackRock hired Paul Weiss).

State Street

Financial Services

Conduct racial equity audit

The proposal failed with 37% of shareholders voting in support.

Wells Fargo

Financial Services

Conduct racial equity audit

The proposal failed with 13% of shareholders voting in support.

JP Morgan

Financial Services

Conduct racial equity audit

The proposal failed with 40% of shareholders voting in support.

Morgan Stanley

Financial Services

Conduct racial equity audit

The proposal was withdrawn after Morgan Stanley agreed to conduct a diversity review.

Citi

Financial Services

Conduct racial equity audit

The proposal failed with 38% of shareholders voting in support.

Bank of America

Financial Services

Conduct racial equity audit

The proposal failed with 27% of shareholders voting in support.

PayPal

Financial Services

Report to Board on workplace culture and inclusion

The proposal passed with 87% of shareholders voting in support.

American Express

Financial Services

Publish annual report on diversity and inclusion efforts

The proposal passed with 60% of shareholders voting in support.

IBM

Technology

Publish annual report on DEI efforts that includes a process for the Board to address program effectiveness

The proposal passed with 94% of shareholders voting in support.

Intel

Technology

Report to Board on whether policies and norms reinforce racism at the company

The proposal failed with 11% of shareholders voting in support.

Chevron

Energy

Conduct racial equity audit

SEC approved company’s petition to exclude the proposal from a vote based on ongoing litigation.

DuPont de Nemours Inc.

Energy

Publicly disclose workforce data by race, ethnicity, and gender

The proposal passed with 84% of shareholders voting in support.

UPS

Shipping

Publish annual report on DEI efforts that includes a process for the Board to address program effectiveness

The proposal failed with 33% of shareholders voting in support.

Berkshire Hathaway

Holding

Publish annual report on DEI efforts that includes a process for the Board to address program effectiveness

The proposal failed with 27% of shareholders voting in support.

Abbott Laboratories

Pharmaceuticals

Publish report on company’s plan to promote racial justice

The proposal failed with 38% of shareholders voting in support.

ARTICULATE VALUES Any Board now looking to act should become introspective. Foundationally, where is the organization on its inclusion efforts and initiatives, and how integral are these values to the company? What efforts and commitments have been made both internally and externally, and who is responsible for executing them?

Think about the fairness mechanisms of your workforce, internal diversity, equity and inclusion (DEI), recruiting, promotion, pay and outreach to the demographics of your customer base. For example, some financial institutions have lending obligations so as to ensure they

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are not cherry-picking wealthy communities and leaving out minority communities, to make sure they’re not compounding decades of discrimination through such practices as not making credit and other products available in all locations.

There’s a lot of discussion about the degree to which social responsibility corporations have to recognize the lingering effects of racial inequality, and to ask questions about how they can be a positive force in disrupting unequal structures.

For Boards, think about who’s going to execute against the structure, and then set up a dialogue between business and legal to create pathways that advance things in a way that is consistent with your legal obligations.

DEI STRATEGY DEFINING OBJECTIVES

When Boards are trying to get in front of the inequality gap, they must first decide whether they need to take race into account in addressing the issues they seek to remedy. The complexity is that anti-discrimination law, the notion of color-blindness, and reverse discrimination cases, in effect may make it difficult to confront inequality by pushing businesses to avoid talking about race and to look for race-neutral alternatives that may be less effective. Boards must therefore learn to describe goals in ways that are inclusive and about opportunity. Language should be clear and baked into the organizational mission. Planning initiatives with a clear understanding of the legal landscape is key to developing programs that are calibrated to achieve the company’s aim while avoiding unnecessary challenges.

CONDUCT VS. RISK APPETITE

Calibrate the level of risk you are prepared to run in your efforts. Some measures have much lower risk, such as where you’re trying to increase pools of applicants and reach broader audiences through marketing. When race becomes a decisional factor, it’s a heightened risk for an organization and might be more difficult to defend.

Overall, you should carefully build programs in ways that avoid vulnerabilities to legal challenge. For example, if an organization sets a specific numerical hiring target,

saying: “we’re going to hire X number of women,” it may be vulnerable to so-called reverse discrimination claims.

Under this theory, efforts to advance the position of one group purportedly entail discrimination against another group (here, male job applicants). But there may be other ways to diversify the workforce, such as setting aspirational goals, actively expanding applicant pools, and ensuring that each applicant is evaluated under the same process and receives a holistic review.

Opening a dialogue with legal about how best to implement changes is worthwhile, because lawyers and in-house counsel will be thinking about litigation risk as well as reputational consequences. Attacks on diversity initiatives can become fodder for the media and ultimately hinder goals. Boards should think about the complexity of navigating these spaces and giving a voice to the relevant actors, recognizing that we are in a moment where some are prepared to lean forward and bear some risks.

Finally, buy-in is crucial; and as much as there is pressure now for organizational shift, companies should ensure that essential teams and leaders are onboard with racial equity strategies and that the change is tied into foundational values. In addition, progress comes through a wider understanding of, and responsibility for, such progress. Where possible, seek to build a coalition of employees who are committed to racial equality.

Starting Points There are two initial ways Boards can begin to make a change towards equality:

DIVERSITY SUPPLIER INITIATIVES Boards can use their resources, capital and market power to broaden the group of entities that serve minority-owned businesses, and to create opportunities for them. For example, the law firm WilmerHale announced it would invest in a traditionally Black-owned legacy bank in addition to other lenders, leveraging the firm’s market power to spread wealth and opportunity.

INTERNAL PAY AND RACIAL EQUITY AUDITS Audits are where a company asks an expert to investigate the impact of its products, hiring practices or policies on protected classes and minority populations. The company often releases some form of the results publicly. Internal pay and racial equity audits are becoming more prevalent; Facebook and Airbnb were recently subject to racial equity audits by ACLU veteran Laura Murphy, who released a guide to conducting such audits for other organizations.

Pay audits require data to see where people are based on their protected characteristics, compensation, and titles.

When companies look at this data, they may see gender or race skews which unmask the structural way organizations manifest unfairness. The benefits of auditing are clear: you get ahead of issues, build credibility with your workforce and are better situated to create windows of opportunity.

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Reverse Discrimination Diversity recruitment and hiring programs can be useful tools in creating a diversified workforce – but they don’t come without risk. Major corporate employers such as Google, Microsoft, YouTube, Starbucks and Wells Fargo have faced legal challenges and lawsuits claiming reverse discrimination after adopting diversity policies and other initiatives to hire and promote more people of color into their higher ranks. So how can employers implement the programs they need to bring about the change they want, while also protecting themselves from adverse legal consequences?. By Theodora Lee

I

T IS CRUCIAL TO UNDERSTAND THE LEGAL RISKS IN ANY TARGETED recruitment and hiring program in order to ensure that such efforts do not run afoul of equal employment opportunity and discrimination laws. Specifically, federal and state laws prohibit decision-making in employment based on a variety of protected classes and characteristics. These laws prohibit the consideration of an employee’s race, color, age, gender, national origin, religion, disability, genetic information, U.S. citizenship and other characteristics (such as being pregnant or transitioning genders).

An employer that makes decisions based on any of these characteristics – even if those decisions are intended to (or do in fact) benefit one particular underrepresented group – violates the law. This means that even the most well-intentioned efforts to improve corporate diversity may result in potentially damaging and expensive reverse discrimination claims.

Given the above concern, diversity efforts need to be made in a manner that doesn’t cross over a line of potential legal danger. For example, it is lawful to seek out Under-represented Minorities (URMs) in recruiting, but determining that a particular position must be filled by a URM is unlawful absent an extraordinary bona fide occupational qualification (such as a model for styling prod-

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ucts designed for ‘African American hair’). A decision to hold open a position until a fully qualified URM or female is found and hired – no matter how positive the motives for that decision – may also be unlawful as a matter of discrimination.

The best way to ensure that DEI initiatives stay on the right side of antidiscrimination laws is to anticipate potential problems and design programs and policies to minimize potential risk, while also creating and implementing them in such a way as to ensure they are fit for purpose and will achieve the intended goals.

It’s advisable to draft a mission statement that is aspirational in nature (e.g., to obtain a ‘critical mass’ of diverse perspectives), and then narrowly tailor the initiative to work toward the stated goals. It’s also crucial to identify the means by which progress toward those goals is measured.

Any program needs to be communicated clearly to both employees and the wider world, but it needs to be backed up by both solid action and broader messaging – just saying you have a diversity program isn’t enough. An organization needs a credible diversity leader and should show active participation in diversity organizations and diversity programs.

Further, upper management needs to visibly show support for diversity (albeit without creating unlawful quotas).

Board of Directors support and diversification can also help.

DEI STRATEGY Consider the picture you present to the world (and potential candidates): Does your marketing collateral show diversity?

Internal messaging should also stress more than just strict demographical diversity – emphasize diversity of thought, inclusion and varying perspectives.

No diversity program will work unless it comes with a willingness to do things differently than in the past. That especially applies to recruiting. Organizations that seek college graduates need to broaden the colleges where they recruit: Include some historically Black colleges and universities (‘HBCUs’) as well as colleges that seek and support female students. Other options for finding qualified URM and female candidates include connecting with college placement officers, college administrators and college professors involved with student organizations such as the American Association of University Women, National Black Graduate Student Association and Campus Pride, among many others.

The professor supporters of such organizations are likely to be mentoring minorities or females and they can be helpful in directing those persons to the right company.

velop and use affinity groups to support finding diverse candidates and developing a diverse pool of high potential internal candidates for promotion. (Caution, however – affinity groups can sometimes go off course for a variety of reasons. Affinity groups work best (a) if they work closely with organizational leaders; (b) if they understand that the group needs to support the business; and (c) if the groups are led by capable facilitators.)

But while the above are all positive steps, they bring potential pitfalls that must be watched out for. For instance, it may be tempting to financially incentivize the hiring of diverse candidates. While bonuses paid to recruiters may be OK, bonuses paid to hiring managers for selecting URMs and women are legally dangerous. If the recruiting bonus relates to adding URMs and women to the recruiting pipeline, that should be acceptable. However, if the recruiter’s bonus involves the recruiter being a decision-maker as to who gets hired or who is recommended as a finalist to the hiring manager, that bonus could be legally problematic.

Another common mistake is to assume that once someone is through the door and in a senior position, the diversity goal has been achieved. But DEI stands for Diversity, Equity and Inclusion – not just Diversity.”

It’s also vital to address unconscious discrimination.

Too many managers still hire or promote based on ‘fit.’

If ‘fit’ means a candidate has the right skills, that’s fine.

However, if ‘fit’ means ‘I just liked him better than her,’ there may be an unconscious bias at work. Training will help eliminate unconscious bias, but so will pushing for diversity and getting managers on board the diversity train (in a lawful manner).

There are a number of ways to shake up the recruiting process to ensure a more diverse talent pool. There are diversity-oriented job fairs throughout the United States (although some not very diverse states may have limited options). Some ‘head-hunter’ recruitment organizations will specialize in, or at least support, diversity hiring. De-

Similarly, setting unrealistic goals may mean taking decisions that cause legal problems (for instance, holding a position open for a diverse candidate) or simply make attaining those goals impossible given the demographics of the sector. For example, a company might say that “we’re going to have women fill 25% of our engineering jobs by next year.” That sounds fine, but in some geographical areas and in some types of engineering, the actual availability of qualified females is far less than 25%. Goals and targets should be based on the reality of the field and what is actually possible in that.

Another common mistake is to assume that once someone is through the door and in a senior position, the diversity goal has been achieved. But DEI stands for Diver-

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DEI STRATEGY sity, Equity and Inclusion – not just Diversity. Even if an organization achieves its targets in regard to hiring, the program isn’t over. Without being able to retain candidates, any achievements will be short-lived. Inclusion means an atmosphere that welcomes diversity, programs to develop employees of all backgrounds, managers who care about their employees and many other post-hiring considerations. The good news is that affinity groups tend to help with retention, but equality, fairness and a welcoming environment all count towards creating an inclusive environment.

Finally, a key recommendation for those tasked with creating diversity initiatives and programs is to seek legal advice before announcing them to the world. Getting it wrong – even for the right motives – can create expensive problems. Launching a program with sound legal advice behind it maximizes the chances of success and minimizes the legal risk involved. For more information on creative a lawful DEI initiative, see boxout to the right.

WHEN IT GOES WRONG

An in-house lawyer with Electrolux NA Inc. filed a lawsuit when he was denied promotion from interim general counsel to the permanent post, claiming it was because he was a man, and that the company was in the midst of a diversity-fueled push to elevate women into leadership roles. The suit claimed that the company was pursuing a quota, that senior management had expressed that they would be seeking a woman to fill the position, and that the diversity drive meant a woman was recommended for the job before the claimant was even interviewed. The claimant also said he learned of the scheme during a PowerPoint presentation and that, as a result of his protests about the ‘discriminatory’ nature of the scheme, he was harassed and side-lined.

COULD HAVE BEEN AVOIDED

While it’s impossible to comment unequivocally on a matter without knowing the full details of the case, it seems in this instance that the company could have prevented many of these issues arising by implementing the steps outlined in the article above (see also boxout).

Avoiding quotas – especially ones which were considered ‘a stretch’ given the field; ensuring all diversity programs are clearly communicated; and recognizing the need to interview a mix of candidates without insisting that a role be filled by one particular demographic would have all gone a long way to negating legal peril.

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CREATING A LAWFUL

DEI Initiative

T

hese recommendations are drawn from the existing legal authority and provide guideposts to the promotion of a diverse workplace while attempting to minimize the risk of legal exposure.

• Draft an aspirational mission statement, but one which can be tailored toward specific goals. Be clear about how progress will be measured.

• Appoint a dedicated leader with responsibility for the targets, and get senior management buy-in.

• Communicate the mission and the goals clearly to employees with an emphasis on diversity of thought, inclusion and varying perspectives rather than strict demographic diversity.

• Do things differently. Review and expand historic recruiting practices and pipelines.

Take steps to address historic (and likely unconscious) bias.

• Develop and use affinity groups both at the recruitment stage and to ensure the ‘inclusion’ part of DEI plans once candidates are in place.

• Make sure any financial rewards (such as hiring bonuses) and systems to track and utilize numbers and demographics are not legally dangerous.

• Set realistic targets that reflect the sector and avoid insisting roles must go to a URM or female candidate.

• If you launch a DEI program, launch it loudly. Send your executives to diversity events. Let the world know that you mean what you say in terms of creating more diversity – but make sure your words are backed up with actions.

• Remember it’s not just about hiring or promoting candidates. A DEI program needs to ensure diverse employees feel welcome, empowered and able to thrive in the organization.

• Seek legal advice – lawsuits are expensive!

NETWORK PRESENTS

Can Big Tech Hack the Diversity Code?

Join us on September 27, 2022 for a panel discussion followed by a networking reception.

Hear from three of Silicon Valley’s leading legal leaders on how big technology companies and their legal teams approach Diversity, Equity and Inclusion.

CONFIRMED SPEAKERS ON OUR PANEL:

HARVEY ANDERSON Chief Legal Officer HP

JENNIFER NEWSTEAD Chief Legal Officer Meta

TODD MACHTMES General Counsel Salesforce

The discussion will be followed by a chance to network with other senior in-house counsel.

To register or find out more please visit: tinyurl.com/4z4yk7ah

BIHC DEI Best Practices Report Black In House Counsel Network is pleased to announce a groundbreaking piece of research which will look at what is really working to advance diversity, equity and inclusion in leading US legal departments.

DEI is now one of the key value metrics for businesses – it’s not just a nice to have. Is diversity initiative growth in your legal department:

EMBRYONIC

DEVELOPED

MATURE

The BIHC DEI Best Practices Report will examine: • • • • • • •

Effectively operationalizing DEI Gathering and use of DEI data.

KPIs for DEI. Recruitment of diverse talent.

Retention and development of diverse talent.

Work/Life Balance.

Management of outside counsel.

The DEI Best Practices Report will launch in September 2022 in New York with an exclusive workshop based on the findings of the report.

This event is for general counsel who want to create meaningful change in their legal departments and move to the mature stage of law department diversity initiative growth.

To register your interest in this event and to sign up to receive a copy of the report please go to:

tinyurl.com/4z4yk7ah

The BIHC DEI Best Practices Report is produced in association with

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