Uber Preferred Counsel Program uses data, metrics and tough questions to determine outside counsels’ commitment to diversity.
Let’s be blunt: The legal profession in general and law firms, in particular, have an abysmal record of diversity and inclusion. I have written about this several times, but despite the urgings of those more influential and well-spoken than me, improvements, well, just haven’t happened. The most recent ABA Study of diversity progress (or better put, lack thereof) glaringly demonstrates the failures.
The improvement in quality of work and decision making of diverse teams—teams composed of those other than old (and young) white men—have been well documented. Despite this, and even though both law firms and clients talk a good diversity and inclusion game, nothing ever seems to change. Why?
I have written before that a lot of this failure stems from the power structure of law firms. Power in law firms flows from those lawyers who serve in leadership roles and are empowered to make changes. And those lawyers often are the ones with significant origination credits and real or perceived client responsibility. Quite simply, money and accountability for clients talk. And when it comes to origination credits and client responsibility, the rules and structure in most law firms favor the status quo. And the status quo is white and male.
That’s why real change in law firms will happen if it comes from the outside. When clients demand it.
That’s why real change in law firms will happen if it comes from the outside. When clients demand it. Not only demand that change occur but demand evidence that the status quo is no longer the status quo. Data. Metrics. The kind of information most law firms don’t want their clients to know, claiming, in essence, it’s none of their business.
According to West, “diversity and inclusion is one of the top performance metrics” Uber uses to evaluate its outside counsel on an ongoing basis. And, as West put it, “it’s not simply a question of how many diverse lawyers does the firm have.” So as part of its vetting process for outside counsel, West says Uber demands data from potential law firms such sensitive topics as:
- What is the promotion velocity in partnership and equity partnership tracks of diverse lawyers?
- What percentage of firm leadership is diverse?
- What is the percentage of women and individuals from underrepresented groups in the firm’s representation of clients?
- What is the percentage of women and individuals from underrepresented groups on the firm’s governance committee?
- Where are they on the firm’s Executive Committee? The Comp Committee?
- How many women and individuals from underrepresented groups are practice group leaders?
- What percentage of women and individuals from underrepresented groups are billing patterns?
- Are women and individuals from underrepresented groups among the top law firm earners? Are they relationship partners?
Says West, Uber “wants to get a real 360 view of how the potential firm is executing on its diversity and inclusion goals”. Not only does Uber do this one time, but it also reruns the process and inquiry every 12-18 months. And not only this, but West says Uber demands that any matter the firm work on is staffed by diverse attorneys: “we want to see not just who shows up for the pitch but who is on the bill.”
And let’s face it, law firms haven’t exactly taken care of their diversity problems themselves.
Pretty intrusive stuff. Information that many firms would say is confidential. I’m sure there are many law firms that would say, this is our business, and you have no right to know these kinds of things or (gasp) how we compensate our people. But the rewards of getting on the Uber approved list could be substantial. According to West, Uber uses this information to select about 25 firms to which the bulk of Uber’s legal business will flow. And as West pointed out with a bit of chuckle, that business is “substantial.” And let’s face it, law firms haven’t exactly taken care of their diversity problems themselves. They should not be heard to complain when clients demand law firms live up to the commitments many have made.
West persuasively argued in his Keynote that diversity is essential not because it’s the right thing to do but because diverse teams better represent Uber. And because selection process is designed to ensure that those firms that do legal work for Uber share Uber’s core values both in general and with respect to diversity and inclusion goals, the representation being provided can’t help to be more efficient.
So, this will be what it takes: clients not only talking the talk but walking the talk with robust inquiry and vetting and metrics. Otherwise, it will be more of the same. As West put it, his aha moment came “when I became a client and realized I could have an impact on diversifying the profession.”