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By Melanie Lasoff Levs

For some committed general counsel, the standard talk about diversity is only a starting point. Recently, many corporate attorneys decided it was time to demand specific actions and results-with very real consequences.

In spring 2004, Sara Lee General Counsel Roderick Palmore created “A Call to Action: Diversity in the Legal Profession,” a document reaffirming a commitment to diversity in the law profession and taking action to ensure that corporate legal departments and law firms increase the numbers of women and minority attorneys hired and retained. And if law firms don’t, the document states, “We [the undersigned corporate legal department representatives] further intend to end or limit our relationships with firms whose performance consistently evidences a lack of meaningful interest in being diverse.” (See the sidebar in this article for the complete text.)

Palmore wrote the Call to Action to build on a previous manifesto: former BellSouth General Counsel Charles Morgan’s “Diversity in the Workplace: A Statement of Principle,” written in 1999. “In that [document], signatories espoused an interest in diversity and the principle of diversity, which was a fabulous thing at the time,” Palmore says. “But it struck me that not enough has happened. The progress of the profession-and more specifically the progress of large law firms-had stagnated.”

The Call to Action takes the Statement of Principle a step further, Palmore adds. “Its purpose is to take the general principle of interest in advancing diversity and translate that into action, into a commitment to act on, to make decisions about retaining law firms based in part on the diversity performance of those law firms.”

Discussion around the need for a Call to Action began in November 2003, when a group of general counsel gathered at the invitation of the Minority Corporate Counsel Association (MCCA®), and the Association of the Corporate Counsel (ACC). This forum, hosted by the two organizations at Howard University Law School for minority law students at DC area law schools, was an opportunity for general counsel to share lessons learned. In preparing for the event, the general counsel, many of whom met for the first time in connection with the Howard program, lamented that so little diversity progress has been made and that a jump start was needed. Thus, Palmore resolved to take the lead.

In creating the document, Palmore had one main objective: brevity. “I didn’t want a long detailed document that talked about how to go about designing a program and that sort of thing,” he explains. He focused on three major elements: the principle interest in diversity; law firms’ diversity performance, especially hiring and retention; and the commitment to limiting or eliminating law firms that were not interested in diversity initiatives. After writing a first draft, Palmore circulated it to several colleagues who are equally committed to the cause—including those who attended the Howard program and attendees at a meeting of the Associations of General Counsel (AGC), held in spring 2004—and incorporated their comments into the final version.

Thomas L. Sager “…we will need to reexamine those relationships where progress has not been achieved with a view of placing work elsewhere.”
 
-Thomas L. Sager

By September 2004, Palmore began formally circulating the document to legal departments throughout the country. He contacted the American Bar Association, which offered to email the document to its extensive list of general counsel. The MCCA, the ACC, and the AGC also sent email blasts to their members about the Call to Action. As a result, Palmore received dozens of emails from general counsel, as well as faxes and letters, asking for their names to be put on the list of companies supporting the initiative.

In about a month, general counsel from 60 companies already had signed on, including Shell Oil (whose general counsel, Cathy Lamboley, was recently elected as the new chair of MCCA’s board of directors), General Motors, Marriott, Dow Chemical, Aon, American Airlines, Merck, UPS, MCI, PepsiCo, and Sears. By November 2004, the boards of directors of both ACC and MCCA made a decision to formally endorse the Call to Action, and establish a web site designed to support the initiative, www.CLOCalltoAction.com.

Roderick Palmore “We need to use constructive and creative means to ensure that all of our firms make immediate and lasting advances in the area of diversity in the profession.”
 
-Roderick Palmore

“It was what I was hoping for—I’m thrilled,” Palmore says about the widespread support and number of companies who have signed onto the document. He says while he has not thought about an end date, “There probably should be one, but it’s premature to put one on it. I’d like as many general counsel of big and small companies to sign up as would like to.”

In 1992, DuPont led a similar initiative when it began using diversity as one of four criteria to determine which law firms and suppliers to hire, according to Thomas L. Sager, DuPont’s vice president and assistant general counsel. Over a three-and-a-half-year period, the legal department interviewed hundreds of firms and suppliers “and chose those we felt were aligned or committed to the same vision we had in those four areas,” Sager says. The department’s other criteria included dedication to a long-term strategic relationship, alternative fee arrangements, and new uses of technology.

Once DuPont chose its law firms, the company helped them further their goals through initiatives such as minority job fairs, benchmark surveys, and incentives. In the first quarter of 1996, DuPont began with approximately 34 firms and four suppliers; today there are about 42 law firms and 10 suppliers who have promised to be active in those four areas, according to Sager. “We’ve been a player in this area for awhile,” he says, adding that it was a no-brainer for a company like DuPont to support Palmore’s document because a vast majority of employees there believe in the cause. “We were very much aware of Rick and his leadership and thought his vision was the right one and the appropriate one. There has been a lot of talk on the subject [of diversity] but advances have only been incremental for most [companies and law firms].”

Palmore’s Call to Action has pushed DuPont to think about its own diversity programs in a new way, Sager explains. “We need to use constructive and creative means to ensure that all of our firms make immediate and lasting advances in the area of diversity in the profession. Failing that, we will need to re-examine those relationships where progress has not been achieved with a view of placing work elsewhere,” he says, citing potential probationary measures with firms that do not comply with diversity benchmarks and placing more DuPont billing with minority-owned firms. “Through accountability,” Sager adds, “you get results.”

A diverse law firm working for a company’s diverse legal department achieves those results, says Arnold Pinkston, general counsel of Eli Lilly and Co., who signed Palmore’s Call to Action. “As a global corporation, we benefit tremendously from a broad spectrum of perspectives that can be achieved by having people from as widely diverse backgrounds as possible working with us,” he says. “After all, we serve a global population. How can we hope to understand the needs and concerns of customers around the world without incorporating their views into the very fabric of our operations?”

Gary F. Kennedy, senior vice president and general counsel for American Airlines, Inc., agrees that a diverse workforce reflects its customers. “To position ourselves to receive the best ideas, the best resources, and the best people, it is essential that we include a mix of ideas and perspectives,” he says. American Airlines has 88,000 employees spread over four continents.

In fact, Palmore’s Call to Action complements a diversity program already in place at American Airlines, Kennedy explains. The company’s Minority Corporate Counsel Program, started in 1995, focuses on diversity within majority firms, increasing the company’s use of minority- and women-owned businesses, and participating in more community outreach in the minority legal community.

Palmore’s document reiterates American Airlines’ efforts, Kennedy adds. “While some of our firms have done a nice job of staffing women and minority lawyers on our matters, we have found that progress, particularly in the area of minority lawyers, has been slower than we would like to see,” he says. “I thought it was essential that we also sign this letter to publicly reemphasize our continued interest and commitment to diversity.”

Documents such as Palmore’s are a step in the right direction, says Brian M. Nurse, senior legal counsel for PepsiCo Inc., which also signed the document. But, he cautions, “As with any other initiative, there needs to be full support and effort within the organization initially from senior management on down, followed by a continuing effort to demonstrate to law firms that it is imperative for them to distinguish themselves in the area of diversity in order to transact business with companies that view diversity as a way of life.”

Nica Val-Hackett “The call on law firms to up their diversity efforts may not be effective unless it affects their bottom line and/or their client base.”
 
-Nica Val-Hackett

At PepsiCo, diversity begins with a mindset, Nurse continues. “We want our workforce to reflect and represent our customers and the communities where we engage in business,” he says. Signing the Call to Action ensures that the rest of the PepsiCo community understands that mindset. “The obvious extension to that is having our vendors, suppliers, consultants, and advisors, including law firms, reflect and represent the same thing.”

Nica Val-Hackett, counsel in the Aon law department, agrees. The company’s general counsel Cameron Findlay also signed the Call to Action. “The call on law firms to up their diversity efforts may not be effective unless it affects their bottom line and/or their client base,” she explains. “Therefore, if law firms are satisfying their clients’ needs without having a diverse work force, the law firms will have little reason to be as responsive to a call to up their diversity efforts, unless their clients demand that they institute diversity and inclusion policies and/or programs.” Like Nurse, Val-Hackett will be critically looking at law firms’ response to the Call to Action to determine whether their diversity commitments are meaningful and sustainable over time.

Halliburton holds its law firms accountable and Palmore’s Call to Action solidifies the message, says Susan M. Ponce, vice president and chief counsel, ESG International, Halliburton Law Department. Halliburton’s general counsel, Bert Cornelison, learned of the document from Palmore during a meeting of the AGC, she says. What would the company like to see come from the document? “We would like to see our law firms view diversity not as a ‘have to’ or a challenge, but as an opportunity to change the way we all practice law for the better,” Ponce says. “Lawyers can be seen as risk-averse, but diversity should be seen less as a risk and more as a tool to creating and maintaining a sophisticated legal practice.”

International Paper also had a law firm diversity program in place when it signed onto Palmore’s Call to Action. In 2001, the legal department established the Lighthouse Award, which rewards outside counsel who actively support the department’s commitment to diversity. “The Lighthouse Award recognized outside counsel not only for routinely assigning women and minorities to International Paper matters, but also for assisting the department in achieving its diversity goals,” says Nicole Walthour, senior counsel, litigation. “We will continue to recognize the efforts of such law firms by strengthening our relationship with them.”

For the past two years, the International Paper legal department also has committed to assigning at least 20 percent of all new matters to diverse law firms or attorneys. “As a result of this commitment, we have had the opportunity to retain women and minority lawyers who had not previously worked on International Paper matters,” Walthour continues. The company has strengthened long-standing relationships with minority-owned law firms as well. “The letter demonstrates to outside counsel that in-house legal departments view diversity as a key measure of their performance and expect that outside counsel will take an active role in creating meaningful opportunities for women and minorities.”

Most companies that signed the Call to Action are sending a survey or letter to each of their law firms, requesting them to take diversity seriously, asking about their practices, and calling for changes if they are needed.

For example, Intel’s legal and government affairs department is sending letters to its outside law firms to determine their stance on the diversity principles when handling Intel matters, says Rose Deggendorf, managing counsel for mergers and acquisitions.

“When we complete that survey process this quarter, we will look at the statistics in terms of how these firms are doing and then set targets for them to achieve in terms of overall firm numbers,” she explains. The company will annually monitor the progress of those firms.

PepsiAmericas already belongs to organizations devoted to increasing diversity in the legal profession, explains Jason Brown, senior counsel. But when the company’s vice president for legal, W. Scott Nehs, received the Call to Action from Palmore, “We made the commitment [and signed it] without hesitation,” Brown says. “The Call to Action takes us to the next level by displaying our commitment to diversity as a determining factor in counsel selection,” Brown says. The company further agrees with Palmore that the legal profession “has generally reached a plateau and must be encouraged to raise the bar,” Brown continues. “Law firms consistently promote their devotion to ‘exceptional client service.’ We’re sending the message that service to PepsiAmericas must include diversity as a top priority.”

Brown hopes firms working with PepsiAmericas will take the message to heart. “The more companies that participate in this pledge, the greater the effect will be upon diversity in law firms across the country,” Brown predicts. “We hope the Call to Action will be a catalyst for change and ensure that the legal profession becomes a greater reflection of our global community.”

That’s why action is so important, explains Deborah Canty, associate counsel for IKON Office Solutions. Its general counsel, Don Liu, signed the document because, Canty says, “He had sensed that there’s something that needed to be done beyond the original statement of ‘We need to do something.’ He had sensed that we needed to do more than just talk about making changes-we need to make changes.”

Cornell Boggs “Those firms that survive that process are going to need to show us that, amongst other things, they have an inclusive pool of people engaged in our work and an inclusive pipeline of people engaged in their firm.”
 
-Cornell Boggs

Every year, Liu sends a letter to the law firms that represent the company, asking about diversity statistics and emphasizing the need for diverse lawyers to work on IKON matters, she says. While Liu will continue that practice, Canty says she would like to see the Call to Action lead to more dialogue between companies and law firms, as well as a reevaluation of hiring standards and retention practices.

These steps are already underway at Tyco, says Cornell Boggs, vice president and general counsel for Tyco Plastics and Adhesives, one of the five operating segments of Tyco International, whose executive vice president and general counsel, Bill Lytton, signed Palmore’s document. Like many other companies, Tyco also signed the Statement of Principles. Boggs calls that document “an outstanding launch to focus on diversity initiatives. It really presented the seeds to begin to facilitate conversations in this area. That was an excellent beginning.”

But Palmore’s document adds some measurable goals and information to guide both corporate legal departments and law firms to achievable results, Boggs says. Tyco, which recently hired a diversity vice president and created a diversity council, is requesting proposals from its firms, and has made clear that diversity is a factor. “Those firms that survive that process are going to need to show us that, amongst other things, they have an inclusive pool of people engaged in our work and an inclusive pipeline of people engaged in their firm,” Boggs says. “If it’s important to us, we hope it’s important to them as well.”

A Call to Action-Diversity in the Legal Profession

In 1999, the chief legal officers of about 500 major corporations signed a document entitled Diversity in the Workplace-A Statement of Principle. The Statement evidenced the commitment of the signatory corporations to diversity in the legal profession. In particular, it was intended to be a mandate for law firms to make immediate and sustained improvement in this area. Unfortunately, however, all objective assessments show that the collective efforts and gains of law firms in diversity have reached a disappointing plateau.

As Chief Legal Officers, we hereby reaffirm our commitment to diversity in the legal profession. Our action is based on the need to enhance opportunity in the legal profession and our recognition that the legal and business interests of our clients require legal representation that reflects the diversity of our employees, customers and the communities where we do business. In furtherance of this renewed commitment, this is intended to be a Call to Action for the profession generally and in particular for our law departments and for the law firms with which our companies do business.

In an effort to realize a truly diverse profession and to promote diversity in law firms, we commit to taking action consistent with the referenced Statement. To that end, in addition to our abiding commitment to diversity in our own departments, we pledge that we will make decisions regarding which law firms represent our companies based in significant part on the diversity performance of the firms. We intend to look for opportunities for firms we regularly use which positively distinguish themselves in this area. We further intend to end or limit our relationships with firms whose performance consistently evidences a lack of meaningful interest in being diverse.

To Palmore, having the quick support and commitment from his fellow legal department representatives has been crucial. The next steps for this initiative are still in the planning stages. “When I conceived of this,” Palmore explains, “my notion was the good faith of my general counsel colleagues that once they made commitment, they’d honor it. At this stage, I want to focus on getting it out there and getting the commitments rather than leaping ahead and saying, ‘We’re going to test you in two years.’ That seems a little heavy-handed.”

Palmore does, however, have a sense of what he’d like to see come of the Call to Action. “We’ll end up with a more diverse profession. That sounds a little simplistic but that’s the objective,” he says. And that objective is clear: “I would like to see law firms and law departments that look more diverse. I’d like to see more folks of color and women in leadership positions generally,” he adds. “I’d like to see an environment in which everyone has an appropriate opportunity to let their talents flower.”

Melanie Lasoff Levs is a freelance writer based in Atlanta, Ga.

A Call To Action-Signatory Responses of 72 Companies As of December 1, 2004

Company Name Company Name
3M Center Richard F. Ziegler Limited Brands, Inc. Douglas L. Williams
AAA Michigan Richard White Lockheed Martin Corporation Frank H. Menaker, Jr.
Abbott Laboratories Jose de Lasa Marriott International, Inc. Joseph Ryan
American Airlines Gary F. Kennedy MCI Anastasia D. Kelly
Aon Corp. D. Cameron Findlay Merck & Co., Inc. Kenneth C. Frazier
ArvinMeritor, Inc. Vernon G. Baker, II New York Life Insurance Company Sheila Kearney Davidson
Avaya Inc. Pamela F. Craven Oracle Dan Cooperman
BB&T Corporation M. Patricia Oliver P&G James J. Johnson
Bear Stearns & Co., Inc. Michael Solender PepsiAmericas, Inc. W. Scott Nehs
BJ’s Wholesale Club, Inc. Kellye L. Walker PepsiCo, Inc. David Andrews
Boeing Douglas G. Bain Pfizer Jeffrey B. Kindler
Cardinal Health Paul S. Williams Pitney Bowes Michele Mayes
Clear Channel Communications Andrea Levin PPG Industries James C. Diggs
Computer Sciences Corporation Hayward D. Fisk Puget Energy, Inc. Jennifer O’Connor
Del Monte Foods James G. Potter Qwest Communications International Inc. Rich Baer
Dover Corporation Joseph W. Schmidt Rick Engineering Company Dennis Stryker
DuPont Company Stacey J. Mobley Sara Lee Roderick Palmore
Dynegy Inc. Carol Graebner SBC Communications Inc. James D. Ellis
Eli Lilly & Co. Robert A. Armitage Sears Andrea Zopp
Federated Department Stores Inc. Dennis J. Broderick Shell Oil Company Cathy Lamboley
Gap Inc. Lauri Shanahan Spherion Corporation Lisa G. Iglesias
General Motors Thomas Gottschalk Starbucks Coffee Company Paula E. Boggs
Goodyear Tom Harvie Starwood Hotels & Resorts Kenneth S. SiegelWorldwide, Inc.
Halliburton Company Bert Cornelison The Dow Chemical Company Richard L. Manetta
Harley-Davidson, Inc. Gail Lione The Finish Line, Inc. Gary Cohen
Hewlett Packard Ann Baskins The TJX Companies, Inc. Jay H. Meltzer
Honeywell Peter M. Kreindler The Williams Companies, Inc. James J. Bender
IKON Office Solutions, Inc. Don H. Liu TIAA CREF George W. Madison
Intel Corporation Tom Dunlap Tyco International Ltd. William Lytton
International Paper Maura A. Smith Tyson Foods, Inc. J. Alberto Gonzalez-Pita
ITT Industries Vincent A. Maffeo Union Pacific Corporation J. Michael Hemmen
JM Service Center LLC Caren Snead Williams Unocal Corp. Samuel H. Gillespie III
Johnson Controls, Inc. Jerome D. Okarma UPS Allen E. Hill
Kellogg Company Gary Pilnick Viacom Mark C. Morril
KeyCorp Paul N. Harris Wal-Mart Thomas Mars
Well Choice, Inc. Linda V. Tiano

From the January/February 2005 issue of Diversity & The Bar®

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