"If you can't join 'em, beat 'em!" The rise and fall of the black corporate law firm

Stanford Law Review

Volumn 60, Issue 6, 2008, Pages 1733-1801

  Wilkins, David B ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 49149083974     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (256)

1. Interview with Brian Jones, at 72-73. [Editors' note: This Article contains excerpts from many confidential interviews conducted by the author. Because he promised anonymity to his interview subjects in exchange for their candor, the author has revealed only the number which he used to catalog each interview along with the page number in his interview notes corresponding to the quotation. The author has also assigned his interviewees fictitious names. The Stanford Law Review has not reviewed the author's interview notes for accuracy or for any other purpose.]
2. Interview with Bill Blakely, at 28.
3. Interview with Charles Robinson, at 3.
4. See Shelly Branch & Caroline V. Clarke, The Nation's Leading Black Law Firms, BLACK ENTERPRISE, Aug. 1993, at 48;
5. Michael King, Making a Case for Choosing a Black Law Firm, BLACK ENTERPRISE, Feb. 1987, at 133;
6. Frances A. McMorris, Black Firms Tread Where Few Others Have Ever Gone, 210 N.Y. L.J. 1, 2 (1993);
7. E.R. Shipp, Black Lawyers Joining the Chase for Big Money, N.Y. TIMES, May 20, 1988, at B7.
8. See MARC GALANTER & THOMAS M. PALAY, TOURNAMENT OF LAWYERS: THE TRANSFORMATION OF THE BIG LAW FIRM 16-17 (1991) (quoting a 1933 profile of Paul Cravath referring to the law firm Cravath founded as a "law factory").
9. ELIZABETH CHAMBLISS, ABA COMM'N ON RACIAL AND ETHNIC DIVERSITY IN THE PROFESSION, MILES TO GO 2000: PROGRESS OF MINORITIES IN THE LEGAL PROFESSION 1 tbl.1, 3 & 4 (2000).
10. See Shipp, supra note 4.
11. Eli Wald, The Rise and Fall of WASP and Jewish Law Firms, 60 STAN. L. REV. 1803 (2008).
12. See infra notes 204-05.
13. See JOHN P. HEINZ & EDWARD O. LAUMANN, CHICAGO LAWYERS: THE SOCIAL STRUCTURE OF THE BAR (1982) (arguing that the American legal profession is divided into "corporate" and "individual" hemispheres).
14. See Marie Beaudette, D.C. Firm Drops Name to Get a Good Win: Shea and Gardner Agrees to Merger with Boston's Goodwin Proctor in a Bid for Long-Term Security, LEGAL TIMES, July 19, 2004, at 1 (discussing the difficult position of midsize firms in the current legal market place).
15. As indicated below, neither the sobriquet "black" nor "minority" is entirely apposite since white lawyers, including several white partners, also worked in many of these institutions. Nevertheless, as I also document, the lawyers I interviewed thought of their firms as being "black" and intended for these institutions to exemplify what they considered to be a black ethos - an ethos that distinguished these institutions from other "minority" firms in which a majority of the founding partners were not black. Given that many of my respondents also often referred to their own and other similar firms as "minority" institutions, however, I use these terms interchangeably as well.
16. See Wald, supra note 8, at 1833.
17. See Heather K. Gerken, Dissenting by Deciding, 57 STAN. L. REV. 1745 (2005).
18. 347 U.S. 483 (1954).
19. In his masterful account of the history of black lawyers in the United States in the period before the end of the second world war, J. Clay Smith asserts that Deborcey Macon Webster, who joined the bar in the 1880s, established a successful private practice in New York - on Wall Street no less - that included work for a number of corporate clients, including "Messrs. Lord and Taylor, [and] Tiffany and Company." J. CLAY SMITH, JR., EMANCIPATION: THE MAKING OF THE BLACK LAWYER 1844-1944, at 400 (1993).
20. Once again, there were exceptions. According to Charles Robinson - a self-described student of the history of the black bar and the founder of one of the most successful black corporate firms - a firm in Cleveland, Ohio, deserves pride of place for being the first "real" black firm to try to cultivate a business clientele. As he told me, in the 1940s this firm had "seven or eight lawyers - I don't know how formal the linkage was-and was the first mega-combination I know of for purposes of serving business - well, at least non-criminal law representation." Interview with Charles Robinson, at 4.
21. There were a handful of exceptions that largely proved the rule. According to his biographer, the great singer and activist Paul Robeson briefly worked in a small Wall Street law firm after his graduation from Columbia Law School in 1923 - that is, before a white stenographer at the firm purportedly refused to work with him, saying, "I never take dictation from a nigger." See LLOYD L. BROWN, THE YOUNG PAUL ROBESON 122 (1997) (noting the "racial discourtesies expressed by the other employees" at Robeson's "Wall Street firm"); Spartacus Educational, Paul Robeson, http://www.spartacus.schoolnet.co.uk/USArobeson.htm (last visited Apr. 10, 2008). With the exception of such cameo appearances, the color line at major corporate firms remained impenetrable until William T. Coleman, Jr. joined the law firm of Paul Weiss Rifkind Wharton & Garrison in 1949. Notwithstanding Coleman's success, however, the corporate bar remained virtually all white until the late 1960s - and many firms did not hire their first black lawyer for a decade after that. See GERALDINE R. SEGAL, BLACKS IN THE LAW: PHILADELPHIA AND THE NATION 75-94 (1983).
22. Indeed, given that many of the few black clients who could afford legal services preferred to hire white lawyers - either because they believed that white lawyers were more competent or feared the prejudice of the white judges and juries that these lawyers would have to appear before - black lawyers also significantly lagged behind black doctors and other professionals in both of these categories. See Jerome Shuman, A Black Lawyers Study, 16 How. L.J. 225, 231 n.21 (1971) (quoting a 1963 study by the U.S. Civil Rights Commission indicating that black clients often prefer to hire black lawyers). As a result, law was often called a "starvation profession" for blacks. See SEGAL, supra note 18, at 4.
23. MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961, at 38 (1994).
24. Paul Finkelman, Not Only the Judge's Robes Were Black: African-American Lawyers as Social Engineers, 47 STAN. L. REV. 161, 180 (1994).
25. Interview with Charles Robinson, at 5.
26. My grandfather, a solo practitioner in Chicago who shared office space with other black lawyers in what was then the only building in downtown Chicago that would rent space to blacks, headed the lay organization of his church, several national and local black fraternal and social organizations, and the neighborhood chapter of the PTA.
27. Another respondent who would go on to establish his own successful black law firm described how he decided that he wanted to become a lawyer: "There was a lawyer who went to my church from the time I was a little kid and I remember him. He used to drive a big car and I thought that was good!" Interview with Marshall James, at 7. Or as another respondent put it: "I knew about black lawyers because a black lawyer closed on my parents' house in 1966 and he was fancy!" Interview with Carl Malkin, at 10.
28. Interview with Charles Robinson, at 6. Robinson remembered the name of the firm as Sanders, Tisdale, Tooks & English but in commenting on a prior draft of this Article for the Stanford Law Review's symposium on this issue, Roland Dumas noted that the firm's name was actually Sanders, Tisdale, Tooks & Williams. I have therefore corrected the quote for the sake of historical accuracy. I am grateful to Mr. Dumas for bringing this error to my attention.
29. Interview with Brian Jones, at 39-40.
30. Id. at 45
31. Id. at 46.
32. Id. at 49.
33. See Rita Henley Jensen, Minorities Didn't Share in Firm Growth, NAT'L L.J., Feb. 19, 1990, at 1 (reporting that blacks constituted 2.2% of associates and 0.91% of partners at the nation's largest firms).
34. See GALANTER & PALAY, supra note 5 (describing the quest for partnership as a tournament of lawyers). For my own take on Galanter and Palay's seminal work, see David B. Wilkins & G. Mitu Gulati, Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the Internal Labor Markets of Elite Law Firms, 84 VA. L. REV. 1581 (1998). One of the points we make is that, contrary to the impression left by Galanter and Palay, promotion to partnership is merely one (albeit important) stage in a multiround competition that continues among partners for compensation, power, and prestige. Id. at 1588. It is this latter stage of the competition where many black partners have found themselves falling behind. Id. at 1677.
35. In 1996, for example, the National Law Journal concluded that 46.2% of minority partners in the nation's largest 250 firms were income partners as compared to only 30% of white partners - a difference of over 50%. See Ann Davis, Big Jump in Minority Associates, But . . . Significant Attrition in Their Later Years Has Left Partnership Ranks Almost as White as Five Years Ago, NAT'L L.J. Apr. 29, 1996, at A1. A 1998 study of Chicago law firms reached a similar conclusion. See Lynne Eckert Gasey, Retention and Promotion Issues Face Minorities and Women at Firms, CHI. LAW., May 1998, at 4 (reporting that minorities constitute 4.8% of all income partners but only 2.1% of equity partners and that there were only twenty-three black equity partners in firms over twenty lawyers in the entire city of Chicago).
36. Joel Reese, Five Large Firms Note Major Gains in Minority Associates, CHI. LAW., May 1997, at 20 (quoting a black partner in a large Chicago firm).
37. See Caroline V. Clarke, The Diversity Dilemma, AM. LAW., Oct. 1992, at S29 (quoting Linzy Jones Jr., a black partner at Chicago's Sidley Austin); Steven Keeva, Unequal Partners: It's Tough at the Top for Minority Lawyers, 79 A.B.A. J. 50, 50 (1993) (noting that fourteen minority partners left Chicago firms during the period from 1991 to 1993, decreasing the total number of minority partners by one third).
38. Clarke, supra note 34, at S30 (reporting that minority partners from around the country contend that what happened in Chicago was similar to what they observed where they practiced).
39. Interview with Charles Edwards, at 2
40. For a description of the "A Better Chance" program, see RICHARD L. ZWEIGENHAFT & G. WILLIAM DOMHOFF, BLACKS IN THE WHITE ESTABLISHMENT? (1991).
41. Interview with Charles Edwards, at 38.
42. Id. at 56.
43. Id.
44. Id.
45. Id. at 55.
46. Id. at 57.
47. Interview with Brian Jones, at 23.
48. U.S. GEN. ACCOUNTING OFFICE, RESOLUTION TRUST CORPORATION: IMPLEMENTATION OF THE MANAGEMENT REFORMS IN THE RTC COMPLETION ACT 2(1995).
49. 12 U.S.C. § 1833e(c) (2000).
50. See Albert R. Karr, Lawmakers Seek More RTC Business for Minorities: Strict Provision on Distribution of Contracts Is Inserted in House Funding Bill, WALL ST. J., June 24, 1993, at B2. Although it is unclear from the legislative history which members of the Black Caucus were most responsible for the original legislation, an informant who benefited considerably from the program reports that Kweisi Mfume deserves the lion's share of the credit. See Interview with Charles Robinson, at 33 ("Kweisi Mfume, with the help of a number of other people, backed the RTC into a corner and made them commit that something like 20% of all of their legal work would go to minority firms. There was a lot of gnashing of teeth, grumbling, complaints, threats and what have you but Congress passed the provision.").
51. Benjamin Wittes, Plenty of Fees to Go Around Under RTC Plan for Minority- and Women-Owned Firms, AM. LAW., Sept. 1995, at 17; see also Minority and Women Owned Business and Law Firm Program, 60 Fed. Reg. 7660, 7661-62 (Feb. 8, 1995) (to be codified at 12 C.F.R. pt. 1617) (reporting that after the passage of the 1993 Act, fees going to minority- and women-owned firms peaked at $60,344,296 or 26% of the total fees paid out); David Newdorf & Jane Elliot, S&L Bailout Boosts Minority Firms: 35 California Practices Run by Women or Minorities Benefit, But More Want In, THE RECORDER, July 26, 1991, at 1 (reporting that the number of minority-owned law firms approved by the FDIC and RTC grew from about a dozen in 1989 to 167 in 1991). As the informant quoted above giving Congressman Mfume credit for starting the program underscores, "even if it was only 10% that went to minority firms, when you are sending out $100 million worth of legal work, that was a lot of business for minority firms. In Texas where the S&L crisis was first apparent, the minority firms that set the standard probably expanded 300-400 percent, maybe more, based on RTC work. They had more business than they knew what to do with. Files and boxes stacked up in their offices." Interview with Charles Robinson, at 33.
52. Interview with Kyla Jordan, at 52-53.
53. As one respondent observed about the lawyers who did not receive a substantial amount of public work when Harold Washington became mayor: "So when Washington is elected the mayor, all the black lawyers of that vintage are getting in the mix. The older lawyers, they were the ones going into the public trust. Suddenly, they all just discovered public finance." Interview with Carl Malkin, at 19-20. As the respondent lamented, "Washinton's election didn't change my life at all because I was too young." Id. He also conceded, however, that he was not active in Washington's campaign. Id. at 20 (noting that he was just a "poll watcher" in the election).
54. Interview with Warren Mitchell, at 16. As he told me with pride "I once went 72 straight hours without sleeping so that I could work all of my shifts as a cop and get back to law school." Id.
55. Id. at 29.
56. Id. at 39.
57. Id.
58. Interview with Marshall James, at 76.
59. Interview with Freddy Shoemaker, at 30-31.
60. Interview with Charles Edwards, at 41.
61. Id. at 61.
62. Interview with Brian Jones, at 84.
63. Id.
64. Indeed, as I have argued elsewhere, many corporate firms were not interested in doing public work even when it was offered to them. Public clients often impose billing restrictions that make them less lucrative to serve than their private counterparts. And even when they are willing to pay full freight, many firms that consider themselves "national" do not want their images tarnished by having to curry favor with local politicians. As a result, as one of my informants put it, public work was often a "step-child" at many large law firms. Interview with Roberta Edison, at 39; see also David B. Wilkins, Doing Well by Doing Good? The Role of Public Service in the Careers of Black Corporate Lawyers, 41 HOUS. L. REV. 1, 38-39 (2004).
65. For the growth in lateral movement by lawyers - and the tendency of clients to follow them, see JOHN P. HEINZ ET AL., URBAN LAWYERS: THE NEW SOCIAL STRUCTURE OF THE BAR 127-28 (2005). Whether the new mantra routinely espoused by corporate clients that they hire "lawyers not firms" applies with equal vigor to black lawyers changing firms - particularly when they moved to small minority firms - remains, as we will see, an open question.
66. Interview with Charles Edwards, at 57.
67. See, e.g., Alexandre Deslongchamps, We Have Overcome, AM. LAW., Sept. 2003, at 19.
68. Am. Bar Ass'n, ABA Mission and Association Goals, http://www.abanet.org/ about/goals.html (last visited Apr. 10, 2008) ("Goal IX[:] To promote full and equal participation in the legal profession by minorities, women, persons with disabilities, and persons of differing sexual orientations and gender identities.").
69. See M.L. Elrick, Consensus Builder: ABA's Chief-To-Be Is Detroit's Ex-Mayor, NAT'L L.J., Apr. 15, 2002, at A1 (reporting Archer's efforts in creating "what is now called the ABA's Commission on Racial and Ethnic Diversity in the Profession"). Archer's 1988 initiative was titled the Minority Counsel Demonstration Program.
70. See David B. Wilkins & G. Mini Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis, 84 CAL. L. REV. 493, 595-96 (1996).
71. Interview with Charles Robinson, at 26-27.
72. Id. at 18-19.
73. Interview with Carl Malkin, at 20.
74. Id.
75. See Wilkins & Gulati, supra note 67, at 595 (documenting the success of the ABA program).
76. Interview with Brian Jones, at 69.
77. Id.
78. Id. at 69-70.
79. Id. at 71-72.
80. As Charles Robinson succinctly summed up the reality of even the best corporate relationship he got from the ABA program: "The general counsel was fairly up front about it. He said 'We're testing you.'. . . [T]here were a number of corporations who wouldn't say it publicly, but that's exactly what they did. They would send a couple of small matters and if those worked out, then you might get some more." Interview with Charles Robinson, at 24-25.
81. For a description of the "information asymmetry" that traditionally characterized the relationship between lawyers and their corporate clients, see Ronald J. Gilson, The Devolution of the Legal Profession: A Demand Side Perspective, 49 MD. L. REV. 869, 889 (1990). See also GALANTER & PALAY, supra note 5 (describing the relationship between law firms and their clients during the "golden age").
82. As Gilson argues, the most important factor leading corporate America to shake off its surprising complacency about the cost of legal services was the rise of in-house counsel capable of both diagnosing legal problems and acting as a sophisticated purchasing agent for legal services. See Gilson, supra note 78, at 902-03; see also Mary C. Daly, The Cultural, Ethical, and Legal Challenges in Lawyering for a Global Organization: The Role of the General Counsel, 46 EMORY L.J. 1057 (1997). In addition, the breakdown of traditional taboos against lateral hiring of associates and even partners and the establishment of a more overtly competitive ethos in firms allowed the new breed of general counsel to wield their new purchasing authority in a much more competitive marketplace. See HEINZ ET AL., supra note 62, at 292. The combination of all of these trends placed large law firms under considerable pressure to try to cut costs - or at least to appear to be doing so.
83. Interview with Charles Robinson, at 26.
84. Interview with Bill Patterson, at 34.
85. Interview with Brian Jones, at 92.
86. Interview with Bill Patterson, at 34.
87. Surprisingly, not every client was initially interested. Patterson recalled a pitch he made to the general counsel of a major nonprofit institution in the late 1980s: "He was an old guy that had been there for something like twenty years and we were busy explaining to him some of the things that we did that we thought were pretty innovative and he just says, 'When you send me a bill, don't bother with all of that stuff. All I want is Legal Services Rendered, dot, dot, dot - and the bill.'" Patterson knew enough not to say anything - since he certainly wanted the work - but he also knew that this GC wasn't long for his job. "Sure enough," he told me with a chuckle, "a year or so later, he was out of there." Id.
88. Id.
89. Interview with Charles Edwards, at 62.
90. Interview with Tanya Banks, at 51.
91. Id. at 52.
92. One of my father's best clients as a solo practitioner in Chicago in the 1960s, for example, was White's French Fried Shrimp, a small black business located on the city's South Side.
93. See REGINALD F. LEWIS & BLAIR S. WALKER, "WHY SHOULD WHITE GUYS HAVE ALL THE FUN?": HOW REGINALD LEWIS CREATED A BILLION- DOLLAR BUSINESS EMPIRE 47-49 (1995). For a description of Harvard's program and its role in opening the doors of elite law schools to black students, see Louis A. Toepfer, Note, Harvard's Special Summer Program, 18 J. LEGAL EDUC. 443 (1966).
94. See DEAN J. KOTLOWSKI, NIXON'S CIVIL RIGHTS: POLITICS, PRINCIPLE, AND POLICY 134 (2001). As Kotlowski makes clear, Nixon was the unexpected author of many important policies in the area of affirmative action. See id. at 155-56. Although for Nixon these policies represented a convenient way to appease civil rights advocates without angering his conservative base, it appears clear that fueling black capitalism and assisting in the creation of a stable black middle class also appealed to Nixon's view of himself as a scrappy outsider.
95. Id. at 136.
96. LEWIS & WALKER, supra note 90, at 81. The program also made the SBC loans "nonrecourse," thus shielding minority entrepreneurs from personal liability if the business failed. Id.
97. KOTLOWSKI, supra note 91, at 136.
98. LEWIS & WALKER, supra note 90, at 76-87.
99. Interview with Freddy Shoemaker, at 39.
100. See Otis Bilodeau, Lessons of the Last Recession: Law Firms Recall the Early 90's Downturn - and See Signs of a Repeat, LEGAL TIMES, Jan. 7, 2002, at 1.
101. Interview with Freddy Shoemaker, at 38.
102. Interview with Bill Blakely, at 45-46.
103. Interview with Brian Jones, at 72.
104. See, e.g., Elizabeth Austin, Altheimer's Collapse Sparks Look at What Can Go Wrong, CHI. LAW., Aug. 2003, at 26.
105. Interview with Bill Patterson, at 19.
106. Id.
107. Id. at 20.
108. Id. at 28.
109. Interview with Freddy Shoemaker, at 32.
110. Interview with Bill Patterson, at 27.
111. Id. at 27-28.
112. See King, supra note 4, at 135.
113. Interview with Brian Jones, at 54.
114. Id. at 55.
115. Id. at 56.
116. Id.
117. Id. at 57.
118. Interview with Bill Blakely, at 30.
119. Id. at 33.
120. Id.
121. Id. at 34.
122. Id. at 35; see also Interview with Charles Robinson, at 38 ("[In joint ventures,] a co-counsel partner would not provide us with documents, would not advise us of the times for meetings, would not return our phone calls, and would come out and say, 'you're going to get your check, why are you bothering me?'"). As indicated below, some minority firms were willing to accept this definition of their role. See infra Part III.A.3.
123. Interview with Bill Blakely, at 35.
124. Id.
125. Interview with Freddy Shoemaker, at 38.
126. Id.
127. Interview with Marshall James, at 18.
128. Id. at 19.
129. Id. at 20.
130. Interview with Bill Blakely, at 47-48.
131. Interview with Freddy Shoemaker, at 30.
132. As the Oregon Treasurer Jim Hill argued in a speech decrying the new "pay to play" rules: "It is a common practice that once women and people of color understand the rules of the game, learn how to play the game, and start doing it successfully, then suddenly it is time for the rules of the game to be changed." Brad Altman, Minority Firms, Not "Pay to Play" Are G-37's Target, Treasurer Says, BOND BUYER, Aug. 31, 1994, at 1.
133. See Jon B. Jordan, The Regulation of "Pay-to-Play " and the Influence of Political Contributions in the Municipal Securities Industry, 1999 COLUM. BUS. L. REV. 489, 494 (reporting that that the practice had become so widespread that underwriting firms had come to consider political contributions and other pay-to-play-related expenses as an "ordinary cost" of securing municipal work).
134. Id. at 495 ("In 1992 and 1993, approximately 80% of all municipal bond offerings were sold in negotiated deals.").
135. Id. at 496-98.
136. Id. at 503 (describing SEC Rule G-37).
137. Id. at 534-35. At the time the SEC was debating the pay-to-play rules, it was involved in a very public spat with the organized bar over its attempt to discipline lawyers involved in the savings-and-loan crisis. See David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145 (1993) (describing the feud between the SEC and the bar over the Kaye, Scholer case). Given this battle, it is not surprising that Chairman Leavitt decided that getting the bar to ban the practice itself was the better course of valor.
138. John Council, ABA Takes Aim at Pay-to-Play, UPL: Critics Say Ban on Campaign Giving Hinders Free Speech, NAT'L L.J., Feb. 28, 2000, at A5 (discussing new Model Rule 7.6); see also Parti Waldmeir, Lawyers Face New Rule on Ethics, FIN. TIMES, Feb. 16, 2000, at 4 (same).
139. As Freddy Shoemaker complained during our interview: "If you are in a big law firm and you've got 100 partners, raising $2,500 or $3,000, well that's not that bad. But when you got four or five partners and people are still looking for $1,000 contributions, man it ain't in your pocket!" Interview with Freddy Shoemaker, at 30.
140. See Ann Judith Gellis, Municipal Securities Market: Same Problems - No Solutions, 21 DEL. J. CORP. L. 427, 449 (1996) (summarizing objections to Rule G-37). Prominent leaders of minority-owned securities firms, including Atlanta's former mayor, Maynard Jackson, registered similar objections. See In the Minority, and Mad; Black-Owned Investment Firms Say SECs "Pay to Play" Curbs are Unfair, WASH. POST, Jan. 29, 1995, at H1.
141. Lynn Stevens Hume & Niamh Ring, Levitt, Senator, and Firms Start Talks on Minority Participation, BOND BUYER, Nov. 15, 1996, at 4.
142. Interview with Bill Blakely, at 47. For a discussion of the Barnes case and other actions against black lawyers and elected officials, see, for example, Cathy Connors, Black Lawyer Jailed on Tax Evasion Charges, N.Y. AMSTERDAM NEWS, Dec. 9, 1995, at 1 (reporting that Joseph Barnes, senior partner of the firm of Barnes, McGhee, Segue & Harper pled guilty to failing to pay federal income taxes on more than $600,000 in income he received from his firm); Richard Lezin Jones, Mayor's Term, Full of Highs, Has Its Lows in Atlanta, Bill Campbell Gets Credit for Much of the City's Success - Now, He is Under Probe, PHILA. INQUIRER, Feb. 11, 2001, at A3 (reporting on a series of corruption investigations against Atlanta Mayor Bill Campbell alleging, among other things, that he took illegal campaign contributions and other favors from companies doing business with the city).
143. Interview with Bill Blakely, at 46.
144. Echoing the fears of many black investment bankers, Bill Blakely summed up the reality of the new rules of engagement: If you are Merrill Lynch, the regulation precludes your public finance department from making a contribution. It does not preclude your corporate finance department or your traders or sales force from making a contribution. Who does that disproportionately impact? The minority investment bankers who are singularly in the public finance business Id. at 48.
145. Interview with Freddy Shoemaker, at 31.
146. Interview with Brian Jones, at 82.
147. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
148. Id. at 499-500.
149. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Adarand overruled Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), in which a different majority had held that federal programs should be governed by a more permissive standard. 147. In Atlanta, for example, the state's Supreme Court invalidated the city's minority-contracting program shortly after Croson was decided. See Steven Mufson, Atlanta Seeks New Paths to Minority Contracting, WASH. POST, Dec. 17, 1989, at H2. Yet rather than abandon the program, the city looked for ways to restructure it so as to preserve the gains made by minority firms. Id. A decade later, Atlanta mayor Bill Campbell was still vowing to "fight to the death" to protect the city's minority-contracting program and that "[t]here will be no compromise, no capitulation whatsoever." Vern E. Smith, Who Needs a Fair Deal?, NEWSWEEK, Aug. 30, 1999, at 32. Not surprisingly, minority lawyers in these cities and others where politicians took a strong stand to defend set-aside programs felt themselves to be far luckier than those in places where such leadership was lacking. As a lawyer in Atlanta put it: "With the retreat from affirmative action, it has put great pressure on black law firms and all black businesses. We're better off in Atlanta because we control more than other cities. I mean in Greensboro, North Carolina, where blacks have no influence in government, it's pitiful!" Interview with Patrick Arnold, at 22.
150. After vowing to "fight to the death," Campbell was forced to agree to a compromise modification of Atlanta's set-aside program. Smith, supra note 147. Even with these changes, the program has been repeatedly challenged in court. Id. Although the city has so far survived these challenges, developments in other cities, including Chicago, seemed destined to fuel even more litigation. See Gary Wisby, City Told to Change Law on Set-Asides for Minorities, Women, CHI. SUN-TIMES, Dec. 30, 2003, at 12.
151. See Newdorf & Elliot, supra note 48, at 1 ("[Some minority law firms feared] sinking all [of their] hopes into the FDIC [when] this work [was] going to end in a few years.").
152. See Michael K. Frisby, Some Agencies Stage Affirmative-Action Retreat While White House Still Debates Its Battle Plan, WALL ST. J., Mar. 24, 1995, at A16 (noting that the RTC hired a consultant to study its affirmative action program and failed to implement many of the program's policies).
153. See U.S. GEN. ACCOUNTING OFFICE, REPORT TO CONGRESSIONAL COMMITTEES: RESOLUTION TRUST CORPORATION IMPLEMENTATION OF THE MANAGEMENT REFORMS IN THE RTC COMPLETION ACT 60 (1995).
154. Interview with Charles Robinson, at 43-44.
155. These demands were sometimes quite forcefully stated. For example, one lawyer I interviewed confronted Dennis Archer in an ABA meeting with over 300 lawyers present and flatly stated that if he wasn't allowed into the program he would sue. Interview with Warren Mitchell, at 50.
156. See e.g., David B. Wilkins, Partners without Power?, 2 J. INST. STUD. LEGAL ETHICS 15, 19-23 (1999) (chronicling the difficulties faced by black partners in large law firms).
157. See David B. Wilkins, supra note 61, at 59-60 (describing the changes in the ABA program).
158. Interview with Charles Robinson, at 48 ("[W]hat you saw was an expansion to something like 200 minority firms in the last few years of the ABA program.").
159. See COMM'N ON MINORITY EMPLOYMENT, BAR ASS'N OF S.F., 1993 INTERIM REPORT: GOALS AND TIMETABLES FOR MINORITY HIRING AND ADVANCEMENT 5-6 (1993) [hereinafter S.F. REPORT] (describing a similar program in California).
160. Not surprisingly, the original thirteen firms were the most likely to continue to benefit even after the program was expanded. As Charles Robinson explained, even though the project no longer generated much new work, it still gave him a valuable opportunity to check in with his existing clients who continued to participate: At a minimum, the meetings were incredibly good opportunities for me to touch bases with existing clients. To take two days to make one trip to get a chance to see nine or ten existing major clients and just press the flesh, I mean that is incredibly valuable. It's the sort of thing that in a majority firm you'd kill to be able to do in that efficient a period of time. If I end up getting some work down the line from that, so much the better. Interview with Charles Robinson, at 48. As Robinson acknowledged, however, it was much easier because, unlike the firms who were not a part of the original lucky thirteen, he had existing relationships with these corporate clients. Id. (acknowledging that "most of these folks though are coming in without those preexisting relationships and their chances of getting work down the line are limited").
161. Interview with Warren Mitchell, at 50-52.
162. Interview with Charles Edwards, at 43.
163. Interview with Charles Robinson, at 49. Not surprisingly, as Robinson went on to explain when recounting what this general counsel had told him, this attitude - albeit understandable - contributed to the belief among many minority lawyers that the ABA's program was more about image than about substance: He had been to so many conferences at that point in time that he had probably met and interviewed 150 minority firms around the country. He did not need to come to these conferences to meet these firms again. Sure, there would be new people. Sure, there was some public image benefit to the company continuing to come to conferences. And therefore they did. But as a practical matter, the GC would say "I don't need to come to these conferences anymore" - which would really piss off some guy who just formed his two person firm in Washington, D.C. and comes to this corporate counsel conference and here's this guy saying "I know everybody" and he's never met him. Id.
164. Interview with Bill Patterson, at 34.
165. Id. at 35.
166. Id. For a description of the layoffs of the 1990s, see Bilodeau, supra note 97.
167. Interview with Charles Robinson, at 26.
168. Id. at 51.
169. Id. at 26.
170. See Gillian K. Hadfield, The Price of Law: How the Market for Lawyers Distorts The Justice System, 98 MICH. L. REV. 953, 974 (2000);
171. John P. Heinz et al, The Scales of Justice: Observations on the Transformation of Urban Law Practice, 27 ANN. REV. Soc. 337 (2001).
172. Interview with Bill Patterson, at 29.
173. See Mary C. Daly, The Cultural, Ethical, and Legal Challenges in Lawyering for a Global Organization: The Role of the General Counsel, 46 EMORY L.J. 1057, 1060-61 (1997).
174. Interview with Charles Robinson, at 26.
175. See Arthur S. Hayes, Non-Affirmative Actions: For Pragmatic Reasons, Black Companies Turn to White Firms, NAT'L L.J., July 26, 1999 (quoting Charles Johnson, CEO of the auto transportation service company, as explaining why they continue to use the same white lawyer for their business interests: "Once you start making money, you don't turn around and kick (the people who helped you free of charge) in the butt.").
176. Id.
177. Interview with Charles Edwards, at 62.
178. Interview with George Edward Fowler, at 6.
179. Interview with Charles Edwards, at 62.
180. Hayes, supra note 172 (quoting a black partner at Shaw Pitman, a
181. Interview with Bill Patterson, at 33.
182. Id.
183. Id.
184. Id.
185. Id.
186. See RICHARD L. ABEL, AMERICAN LAWYERS 180 (1991) (discussing the instability of small law firms).
187. In addition to failing to put money away for strategic development, many black law firms also fell into the trap of too quickly ramping up their fixed costs. Expensive office space was often the culprit. As Freddy Shoemaker conceded, his firm's decision to take over three floors in a downtown building and build it out "elegantly" eventually contributed to the firm's downfall: "It was costing us $300,000 a month before a partner was paid a penny," he conceded, "every month, you've got to go out and get this money, bam, bam, bam. . . . And what you end up doing is having to borrow more money than you want to borrow." Interview with Freddy Shoemaker, at 46. Eventually, all of that borrowing drained the resources of the partners - and the will of several of them to stay in the firm. In fairness to Shoemaker, he also insists that the firm's elegant offices played a crucial role in convincing clients - both black and white - that this new group of black lawyers had the capacity to handle important matters. Id. Other more successful black firms, however, made a different choice. Reginald Lewis, for example, prided himself on the fact that his firm, although located on Wall Street, otherwise had little more than Spartan furnishings, instead investing in a top-of-the-line copier which allowed him to be "more profitable than if he'd invested in fancy furniture." See LEWIS & WALKER, supra note 90, at 80.
188. Interview with Bill Patterson, at 33.
189. Id.
190. Interview with Brian Jones, at 84.
191. See HEINZ ET AL., supra note 62 (documenting the expansion in law firm recruiting between 1975 and 1995).
192. See NALP FOUND. FOR RESEARCH & EDUC., KEEPING THE KEEPERS: STRATEGIES FOR ASSOCIATE RETENTION IN TIMES OF ATTRITION 9-10 (1998).
193. On pressure by bar associations, see Wilkins, supra note 61, at 60-61 (describing various bar associations goals for minority associates and partners). On pressure by corporate clients, see David B. Wilkins, From "Separate Is Inherently Unequal" to "Diversity Is Good for Business": The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar, 117 HARV. L. REV. 1548, 1556 (2004) (describing a letter sent by the general counsel of Bell South encouraging corporations to pressure firms to hire and promote more minority lawyers).
194. For my own take on the overall effectiveness of these programs, see Wilkins, supra note 190.
195. See, e.g., Brian Zabcick, Measuring Up (and Down), MINORITY L.J., May 2, 2002 (reporting on the 2001 Minority Score Card); Lily Henning, Race Matters: Law Firms Are Recognizing That Diversity Is About Business. Just Ask Their Clients., LEGAL TIMES, March 17, 2003 (describing Kirkpatrick & Lockheart's hiring of a Chief Diversity Officer).
196. Interview with Brian Jones, at 43.
197. Id. at 44.
198. Interview with Freddy Shoemaker, at 38.
199. Id. at 39.
200. Id.
201. Interview with Charles Robinson, at 86.
202. Id. at 85.
203. Interview with Brian Jones, at 91-92.
204. See Leigh Jones, Law Firms See Benefits Hike With Salaries, NAT'L L.J., May 28, 2007, at 1 (noting that not only have firms raised starting salaries for first year associates to $160,000, but many are throwing in other perks like retirement planning and dog walking services as well). Whether these Olympian salaries will actually improve the retention of associates remains to be seen. See Elizabeth Goldberg & Ben Hallman, To the Moon: Is Raising Salaries the Best Way to Retain Associates?, AM. LAW., Mar. 2007, at 20.
205. National Minority Law Group Website, http://www.nmlg.org/about.asp (last visited Mar. 20, 2008).
206. For example, Brown & Hutchinson, which claims to be western New York's largest minority-owned firm, see Brown & Hutchinson, http://www.brownhutchinson.com/article-03.htm, has eleven attorneys and specializes in civil litigation, see Brown & Hutchinson, Overview, http://www.brownhutchinson.com/overview.htm. By contrast, at its apex in the early 1990s, Bill Patterson's New York firm had almost thirty lawyers and was looking to open offices in Washington, D.C. and other cities. Interview with Bill Patterson, at 19.
207. See Adorno & Yoss, About Us, http://www.adorno.com/about.asp (last visited Apr. 10, 2008). Even Adorno has experienced its share of bumps and bruises on its way to building a truly national minority firm. See Jessica M. Walker, Adorno & Yoss Trumpets Diversity but Loses Practice Groups in the Process, DAILY BUS. REV., Feb 13, 2006.
208. See Jerry Crimmins, Minority Firms Unite to Serve Corporations, CHI. DAILY L. BULL., Sept. 19, 2005, at 1 (noting that Hank Adorno and Stephen H. Pugh of Chicago's Pugh Jones were the driving force behind the network and that at one point they tried to merge all of the participating firms into a single law firm). In addition to Adorno & Yoss's 250 lawyers, three other Hispanic-owned firms - Escamilla & Poneck, Inc. (39), Gonzales Saggio & Harlan (50), and Sanchez & Daniels (40) - provide another combined 130 lawyers to the 500 attorneys that the NMLG claims are part of the network. Of the remaining firms, only Chicago's Pugh Jones has more than twenty lawyers. National Minority Law Group, Member Firms, http://www.nmlg.org/firms.asp (last visited Mar. 17, 2008). As indicated below, Pugh Jones has entered into a long-term alliance with Chicago's Sonnenschein Nath & Rosenthal. See infra note 206.
209. Crimmins, supra note 205. On the alliance between Pugh Jones and Sonnenschein, see Molly McDonough, Teaming Up for Diversity: Big Firm, Black Firm Form Alliance to Catch More Business, A.B.A. J. EREP. , July 23, 2004, at 29.
210. See Wald, supra note 8. Notwithstanding this important progress, however, Heinz et al. note that as of 1995, ethno-religious segmentation had not entirely disappeared. Jews, for example, were still somewhat underrepresented in some high-prestige areas of legal practice (for example, securities law) and overrepresented in some low-prestige areas such as criminal defense and divorce. See HEINZ ET AL., supra note 62, at 288-89.
211. The Cochran Firm, named after the late Johnny Cochran who achieved national prominence in the O.J. Simpson case, has also been successful in recent years. This firm, however, specializes in plaintiffs work (often against the very large corporations that black corporate firms hoped to defend) and in any event is little more than a franchise-based amalgamation of independent firms. See Justin Scheck, LA Firm Brings Johnnie Cochran Name to San Francisco, RECORDER, Apr. 21, 2005 (noting that some of the lawyers in the Cochran Firm continue to practice at other firms).
212. Interview with Earl Langly, at 3.
213. Id. at 9.
214. Id. at 3.
215. Id. at 5.
216. Id. at 14.
217. For another example of a firm pursuing a joint venture strategy similar to the one between Pugh Jones and Sonnenshein, see Press Release, Venable LLP, Law Firms Brown & Sheehan and Venable Form Strategic Alliance (Jan. 4, 2006), available at http://www.venable.com/press_releases.cfm?action= view&press_release_id=267 (announcing a strategic alliance between Brown & Sheehan, the largest minority firm in Maryland, and Venable, an Am Law 100 law firm).
218. See supra notes 73-74 (describing Brian Jones' attempt to create The Elephant); Michael K. Frisby, Odd Coupling: New York Law Firms, One Black, One White, Are Stronger Together, WALL ST. J., Oct 10, 1995, at A1 (describing a new alliance between Cooper Liebowitz, a minority firm in New York City, and Hughes Hubbard to do work related to Resolution Trust Corporation, the federal agency created to clean up the savings-and-loan crisis). This is just one more reason why it is important to study the historical lessons presented here.
219. See T.J. DeGroat, 'Critical Mass': A Law Firm's Multimillion-Dollar Diversity Investment, DIVERSITYINC. COM, Oct. 20, 2005.
220. See Attila Berry, Mintz Levin Diversity Bid Falls Apart Minority Group Hired With Fanfare; Most Have Left Firm, LEGAL TIMES, Dec. 10, 2007.
221. Id.
222. See Wilkins, supra note 190.
223. Interview with Bill Patterson, at 29; see also Marie Beaudette, Shattering Stereotypes: Leftwich & Ludaway Is Small and Minority-Owned, But Its Variety of Practices Promotes Loyalty and Staying Power, LEGAL TIMES, Sept. 22, 2003, at 1 (quoting associates saying that they stayed at the firm because of the excellent training and development).
224. Interview with Bill Patterson, at 28.
225. Id.
226. Interview with Bill Blakely, at 29.
227. Interview with Steve Wainwright, at 58.
228. Interview with Charles Robinson, at 91.
229. Interview with Steve Wainwright, at 59.
230. Interview with Bill Patterson, at 48.
231. Interview with Earl Langly, at 12.
232. Id. at 13.
233. Interview with Bill Patterson, at 48.
234. Interview with Earl Langly, at 19.
235. Id. at 4.
236. Id.
237. Id.
238. Compare Derrick A. Bell, Bell, J., Dissenting, in WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID: THE NATION'S TOP LEGAL EXPERTS REWRITE AMERICA'S LANDMARK CIVIL RIGHTS DECISION 185, 185 (Jack M. Balkin ed., 2001) (arguing that it would have been better if the Supreme Court affirmed Plessy v. Ferguson), with ORLANDO PATTERSON, THE ORDEAL OF INTEGRATION: PROGRESS AND RESENTMENT IN AMERICA'S "RACIAL" CRISIS (1997).
239. See, e.g., David B. Wilkins, Two Paths to the Mountaintop? The Role of Legal Education in Shaping the Values of Black Corporate Lawyers, 45 STAN. L. REV. 1981, 1991-92 (1993) (noting the potential social justice benefits of black lawyers working in corporate law firms).
240. See generally ELIZABETH CHAMBLISS, MILES TO GO 2004: PROGRESS OF MINORITIES IN THE LEGAL PROFESSION (2004).
241. I document this lack of participation in black bar organizations in Wilkins, supra note 61, at 66.
242. Interview with Bill Patterson, at 48.
243. Id.
244. See Wilkins, supra note 61, at 76 (chronicling the experience of Charlene Grant, who was told when she brought in a controversial pro bono client, that the firm would not allow her to "bring a skunk" to the party and that partners were there "to make money").
245. See Gerken, supra note 14, at 1800-01.
246. Interview with Brian Jones, at 91.
247. Interview with Charles Robinson, at 84.
248. Interview with Freddy Shoemaker, at 39-40. As I discovered, the risk of being perceived as a black front trying to take advantage of various affirmative action programs intended to help minority firms was a very real one. Sam Wrightfield, for example, found himself working for a "minority" branch of a large law firm that was little more than a mail drop to get access to RTC work. As he confided "I thought we were either going to make it big or end up on 60 Minutes!" After a few months, the "firm" fell apart when the Hispanic lawyer who was supposed to be the face of the operation turned out to know absolutely nothing about practicing law. Interview with Sam Wrightfield, at 81-87.
249. Interview with Sam Wrightfield, at 112.
250. Id.
251. Gerken, supra note 14, at 1766.
252. See A Bold Effort to Measure the Nurturing Environment at the Black Colleges and Universities, 17 J. BLACKS HIGHER EDUC. 49, 49 (1997) (describing the "hands on" nurturing environment at HCBUs);
253. Herman R. Branson, The Hazards in Black Higher Education: Program and Commitment Needs, 56 J. NEGRO EDUC. 129, 130 (1987) (discussing the importance of HBCUs and how they are adapting for the future).
254. See It's America's Black Colleges that Have the Nation's Most Racially Diverse Faculties, 36 J. BLACKS HIGHER EDUC. 62, 62 (2002) (discussing faculty diversity at black colleges).
255. Interview with Brian Jones, at 91. 252. Interview with Bill Patterson, at 47.
256. Id.