Interviewed by Kenny Matuszewski
On May 16, 2019, the @theBar blog was invited to attend 2Civility’s The Future is Now 2.019 Conference. This series of articles goes in-depth on some of the topics that were discussed during the presentations. We hope you enjoy these articles and are able to incorporate some of these tips into your own practice.
Kenny: Where do you work and what do you practice?
David: I am a Partner at Sheppard, Mullin, Richter & Hampton, an Am Law 100 firm. I am a litigator, and most of my practice involves litigation against the government, including the False Claims Act and criminal investigations.
Kenny: What leadership roles do you have at the firm?
David: I am the Managing Partner of Sheppard Mullin’s DC office, which has 100 lawyers and a leader in diversity efforts at the firm. Shortly after I joined the firm, I helped co-chair a new committee for diversity and inclusion in the office. It was started with the firm’s commitment because the Managing Partner at the time wanted to make the office more diverse and comfortable for people of all backgrounds. The program was so successful that it spread and was successfully implemented in all the firm’s office. Informally, I mentor associates and provide guidance.
Kenny: Why is the practice of civility, wellness, and diversity and inclusion within the legal profession important for attorneys across the country?
David: On a simple level, with regard to wellness: the profession is not doing well. There are high rates of addiction, suicide, divorce. By these measures, the profession is not doing as well as it should be, and the lack of civility and stress contributes to this problem. The internet and social media have made the practice of law more transparent and connected. What we do is increasingly visible to people, touches more people, and, as a result, there are more people judging how we conduct ourselves. The people we are connected to are more diverse so our profession needs to be more diverse in order to meet our clients’ changing needs. We now practice in a fishbowl and need to conduct ourselves in ways that are effective, sustainable and reflect the values of a diverse society.
Kenny: Do you think enough is being done to advance and further develop a diverse legal profession?
David: The simple answer is that in terms of the numbers, not enough is being done. However, I don’t like being judgmental. Just because not enough has been done does not mean an enormous difference has not been made or that smart people aren’t working hard on this tough problem. I started practicing 30 years ago, and compared to then, Big Law is far more diverse and inclusive now that it was then. It’s important for us to acknowledge the progress that has been made. A lot has been done, and we do not want to discourage people or cause them to ignore the problem by failing to acknowledge that progress. But as we progress, we learn and find ways to make more progress. I feel pretty optimistic.
Kenny: Why do you think previous efforts to enhance diversity in the legal profession not been as successful?
David: Over the past 15-20 years, there have been 2 basic models for promoting diversity and inclusion. Early on in the discussion was a moral appeal: it was simply the right thing to do. While there was broad agreement that making firms more diverse was the right thing to do, it was difficult to determine what to do specifically or how to implement solutions. As a result, the moral case wasn’t as effective as we hoped in galvanizing action. While everyone believes in equality, there are wildly divergent views on enforcing and putting moral principles into action on a daily basis.
We then tried the business model. Clients demanded that law firms become more diverse; as a result, law firms would do it based on client demand. The business model reframed the diversity issue in terms of the shared value of client service, which cleared the clutter from the earlier moral case. While the business model has had an impact, it also has limits. The business model tends to relieve law firms of their own responsibility to promote diversity. In other words, the business model incentivized law firms to act because clients want it, not because they and the lawyers in those firms want it. This reduces diverse lawyers to overhead based on client demand. It reduces the diversity effort to a numbers game.
I think the limits of the business model is one of the reasons for the high attrition rates of diverse lawyers because it causes firms to not engage them in ways that make these lawyers feel connected and welcome in big law firms. Now, I don’t mean to suggest that firms don’t treat their diverse lawyers well, but the framework emphasizes numbers. The number of diverse entry-level attorneys has increased over time, but the retention numbers have not followed the same trend. As a result, the business model is better at finding and recruiting people but falls short on retention. Some of these retention challenges are due to barriers that diverse lawyers face but diverse lawyers also usually have a range of attractive options, such as government, in-house, etc. So for our retention levels to improve we have to find ways to more authentically engage diverse lawyers.
Kenny: At the 2Civility The Future is Now 2/019 Conference, you proposed a Model Rule that could be added to the ABA’s Model Rules of Professional Conduct about diversity and inclusion. What is that rule, and how would you recommend law firms implement it?
David: I realized that as attorneys, we make commitments all the time. So, I thought, why not make a commitment to diversity and inclusion? It would allocate our creative energy to an important issue and goal. It’s what led me to propose a new Model Rule 8.5, which calls for the profession to recognize lawyers’ historical role as guardians of our founding values and sets an aspirational goal of devoting 20 hours annually to advancing diversity and inclusion in the profession. Model Rule 8.5 recognizes that historically, lawyers as professionals were recognized as privileged members of society who protected and promoted core social values in the Constitution and Bill of Rights. At first, lawyers were not engaged in the private practice of law. Lawyers were supposed to be above self-interest, and their role was to protect the social contract. Once private practice began, there was a tension between the private and public interest. That’s where codified rules of professional conduct, such as the ABA Model Rules came from.
The ABA’s model rules are already moving in the direction of recognizing lawyers’ public responsibilities. For example, the ABA Model Rules urge lawyers to devote 50 hours to pro bono legal services. Similar to the spirit of pro bono, my rule states that equality is a core American value that has not yet been realized. It reclaims the profession’s obligation to promote equality. The proposed model rule also encourages, but does not require, lawyers to make efforts to eliminate bias and discrimination and promote equality in the profession. The proposed rule is aspirational, intended to move the profession and society forward.
The proposed model rule also provides examples of what firms and in-house legal departments can do to promote equality. Some of the steps they can take include hiring more diverse attorneys, putting on CLE and educational programs about diversity and inclusion, learning about and finding ways to reduce implicit bias. The proposed rule may seem like a leap to some but it is grounded in our history and follows the pro bono rule precedent. Thus, in reality, it is conservative, incremental, and grounded in precedent.
Kenny: Do you think law firms would comply with the proposed Model Rule right away? Or would it take a while to implement?
David: I have been pleasantly surprised to find there has been a very enthusiastic reaction to the proposal. But, the overall interest in diversity and inclusion is not surprising. Most lawyers believe in the profession and treat it is a higher calling. Equality is not a controversial principle, and I believe Firms and lawyers would embrace the Model Rule, as part of their call to a higher purpose.
Further, as attorneys, we take our take professional obligations seriously. If state bars and/or the ABA adopted the proposed Model Rule, lawyers would rise to the occasion, much like they did for pro bono services. The Model Rule may be aspirational, but firms would likely pledge to devote the 20 hours of time to learn more about what they can do to reduce bias. In addition, it would serve as a competitive advantage in recruiting talented young lawyers and meeting client demands.
Kenny: Discussions of diversity and inclusion predominantly focus on large law firms and corporations. As one of your colleagues mentioned during the conference, women are increasingly forming their own law firms in order to shift the status quo and run their own businesses. Should the legal profession celebrate the rise in women and minority-owned businesses and these groups empowering themselves in the marketplace? If so, how should it be balanced with the more traditional goals of diversity and inclusion in, for example, large law firms and corporations?
David: We absolutely should celebrate and empower women for forming their own law firms. In fact, we should celebrate the empowerment of any diverse group of people. Part of equality means that everyone is empowered to act and to make their own choices. I also find the balance between small and large firms to be a false choice. In my personal experience, I have seen many lawyers move back and forth between these two settings. Some small firms may need resources that large firms offer and move in, while lawyers at large firms may want the independence and entrepreneurial spirit a small law firm offers. As long as we are supporting and empowering women and diverse lawyers, it is a win for the profession and a win for big and small firms.
Kenny: On a similar note, how have you seen the issue of diversity and inclusion play out in small law firms? Would the same solutions apply in both large and small law firms?
David: Diversity and inclusion challenges are identical in both large and small law firms, although how they play out can differ. If you are in a 2-3-person firm and you hire additional diverse lawyer, that will already dramatically change your firm’s background. As a result, it is easier to implement measures improving diversity and inclusion in smaller law firms, because larger firms have to deal with more layers of bureaucracy. While large firms enjoy the benefit of having resources to provide programs and training, solving the issue of diversity and inclusion is necessarily an institutional and slow-moving process.
Kenny: There are many parts of the country whose population is comprised only or mostly of majority demographics. How can the goals of diversity and inclusion be advanced in those parts of the country?
David: Diversity and inclusion are an enduring challenge for firms in those communities. I’ve heard from several of those firms how difficult it is for them to solve this problem. The reality is that life is about social life and family, not just working. Places with less diversity, therefore, will be less attractive to diverse people.
However, those firms can attract diverse lawyers if they commit to making a diverse lawyer successful in their career and take that opportunity seriously. People who are successful in their careers find a space where no one else is and creates business. It can be a challenge to get lawyers fresh out of school to appreciate this, but after practicing a few years, if they are serious about their career and goals, they could look to places with fewer diverse lawyers but a commitment to advancing diverse lawyers. Moving to those locations will provide real opportunities to build a career and develop a satisfying personal and professional life.
Now, I’m an East Coast guy, who is from New York and currently practices in DC but I have seen the opportunities that non-coastal legal communities can offer lawyers. If there is an opportunity for a lawyer to move away from the coasts and further develop their career, they should take it.
Kenny: How can newer attorneys work to enhance diversity and inclusion in both their workplaces and the legal profession in general?
David: As lawyers, we are advocates, whether it is for a client, a brief, or a belief in diversity in the working environment. Young attorneys should not pay a price for advocating for diversity. If there are adverse consequences for doing so, then they are in the wrong place. When I was a younger attorney, I had to censor myself at times and make certain choices. That has changed considerably since then. Most law firms, legal departments, and legal organizations are open to discussions about diversity. So, if you are interested, speak up, make suggestions and offer to help. Make constructive suggestions. When young lawyers frame their points constructively, their efforts to step up will be rewarded by firms.
Younger lawyers also have a role to play outside of their law firms. Bar associations are a great way to advance diversity in the profession. For example, bar associations provide excellent opportunities to receive and provide mentorship. Bringing diverse people into the profession is essential to achieving our diversity and inclusion goals. For example, I have mentored attorneys through the ABA and specialty bar associations. All these organizations advance diversity and reward anyone who steps up to help.
One common thing I hear is that associates are afraid of speaking up. Here’s the poorly kept secret from the partner’s perspective: partners worry about how to keep their associates happy, engaged and committed. You have power, use it!
Kenny: Do you have any last pieces of advice for young lawyers?
David: Wayne Gretzky once said, “don’t skate where the puck is, skate where it is going.” This is also true in the legal profession, which is changing so rapidly. Young lawyers tend to focus on where the profession is today, the practice groups, and firms they know. If you want a long, successful career, think of what you want to do in 10-20 years, the state of the practice at that time, and the life you want. Figure out what you are trying to accomplish in your profession and life, and work backward from that towards your vision. Too many young lawyers follow other people’s path, and 4-5 years down the road, feel lost. They simply don’t know where they want to be. Figuring out what you want to be and how to get there will help you avoid that problem.
Ask yourself: what kind of lawyer do you want to be? Some people have creative backgrounds and may miss the music or art industries. But artists and musicians need lawyers too! The good thing about the law is that there is room for you to satisfy that creative spark and help artists. Finally, whenever society faces tough choices, they turn to lawyers to solve it. They don’t care about the type of lawyer you are, there is always a demand for the analytic skills and intellectual rigor lawyers are trained in, no matter the subject. Bottom line, there are many ways and opportunities to apply your legal skills; find something you love in the law and do that.
David L. Douglass is the Managing Partner of the Washington D.C. office of Sheppard Mullin Richter & Hampton, LLP. David represents clients in complex investigations and litigation. He is a Fellow of the American College of Trial Lawyers. Fellowship is extended by invitation only to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality
Throughout his career David has championed diversity in the legal profession. He serves on his firm’s Diversity and Inclusion Committee and co-chaired the Washington D.C. office’s Diversity and Inclusion Group. He serves on the Advisory Board of the Institute for Inclusion in the Legal Profession, an organization comprised of corporations, law firms, and attorneys devoted to driving real progress toward creating a more inclusive legal profession through comprehensive outreach and original programming to replace barriers with bridges between legal, judicial, professional, educational, and governmental institutions. In 2015 David received the American Bar Association Health Law Section’s Champion of Diversity and Inclusion Award.
David is a graduate of Yale College and Harvard Law School.
David’s full bio is available at https://www.sheppardmullin.com/ddouglass.