Raising the Bar: Exploring the diversity gap within the legal profession

By 2042, the U.S. population is projected to be “majority minority,” and no one race or ethnicity will any longer be the majority in America. While America increasingly reflects the extraordinarily diverse people and cultures from around the world, the legal profession does not.

Unless the legal profession makes faster progress, it will miss the dynamism and creativity that diversity brings to other fields. We risk failure in having a profession that is as diverse as the country we serve – a prerequisite for healthy legal service for a democracy.

Many lawyers are aware we have not kept pace with the nation. What is troubling is the lack of clarity about why this is happening. And until we know why, we are just guessing at the best ways to help build a more diverse legal profession.

To better understand the situation, it helps to compare diversity in the legal profession to three other professions with broad education or licensing requirements: physicians and surgeons, financial managers and accountants/auditors. Although the percentage of under-represented minorities (specifically African American and Hispanic/Latino) in each of these professions lags behind the national workforce, the gap between the legal profession and these other professions has actually worsened over the past nine years.


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While many law firms, in-house legal departments and others helpfully are increasing development, mentoring and growth opportunities for under-represented minorities, evidence shows that we continue to lose out on the chance to recruit many promising professionals before they begin their career.

For example, the only national study of bar passage rates (LSAC, 1998) revealed that more than 20 percent of African Americans and more than 10 percent of Hispanic/Latino law students never passed the bar, compared to less than 5 percent of white law students. If African Americans and Hispanic/Latinos passed the bar at the same rate as whites (96.7 percent), this would have the same impact as increasing the number of African Americans and Hispanic/Latinos in law school by 18 percent.

For those of us who practice law, there are important reasons that may explain this difference. For example, we appreciate that it’s very difficult to pass a bar exam without taking a bar preparation course, which may have a price tag approaching $5,000. It’s also difficult to pass without studying full time for the couple of months preceding the test. Yet, it’s obviously more difficult for those of lower economic means to do either of these things, especially since federal student loan money cannot be used to pay for a bar preparation course. And unlike medicine, in which certification testing typically takes place in stages over the course of four years attending medical school, there’s typically no opportunity for help or remediation with the confines of law school itself. Rather, bar preparation typically begins just after law school graduation.

All of this points to the importance of learning more, both about bar passage trends and their counterparts in other professions. But it’s an indication of the problem that the issue has only been studied statistically and thoroughly on one occasion – 14 years ago. The overwhelming majority of states do not even publish pass-fail rates broken down by the ethnic background of test takers. It’s hard to understand how to address a problem when so little data exists to help understand it. All this points to a broader phenomenon as well. There’s a lot that the legal profession can learn from other professions. Yet, typically lawyers spend the most time focused on our profession alone. That’s not a recipe for success.

The legal profession should strive to reflect the diversity and inclusiveness of the United States. Closing the diversity gap requires a broad effort, and there are many issues and potential solutions to assess and consider. I’m proud of our track record at Microsoft in increasing the diversity of our lawyers. But the number one thing I’ve found is that we all have an even bigger opportunity to learn more about how we can do better – by talking with each other and learning from other professions as well.

About the Author

General Counsel & Executive Vice President, Legal and Corporate Affairs, Microsoft

Brad Smith is Microsoft's General Counsel and Executive Vice President of Legal and Corporate Affairs. He leads the company's Department of Legal and Corporate Affairs (LCA), which has approximately 1,100 employees located in 55 countries. Mr. Smith is responsible for the company's legal work, its intellectual property portfolio and patent licensing business as well as its government affairs and philanthropic work. He also serves as Microsoft's corporate secretary and its chief compliance officer. Mr. Smith currently co-chairs the board of directors of Kids in Need of Defense (KIND) and is the chair-elect of the Leadership Council on Legal Diversity. In Washington state, Mr. Smith has served as chair of the Washington Roundtable, a leading Washington state-based business organization, and he has advanced several statewide education initiatives.