If you’ve been reading this newsletter awhile, you know that I’m regularly screaming from the mountaintops about women supporting women. There are so many things—from the prevalence of sexual harassment and other toxic behavior in the workplace, to the presence of family-friendly policies such as hybrid working arrangements, to the absence of mentors, and so many others—that would change if we simply had more women in The Room. Importantly, this doesn’t just mean that we need more women in leadership at law firms, we also need more women at the top in business and in government, so that those women can hire women lawyers.

But I also often wonder if, even if we had women CEOs running every Fortune 500 company, every nonprofit organization, and every government entity, would they hire women to represent them? Who are women clients hiring to handle their matters, whether they’re significant litigation, major transactions, or government relations work?

Unfortunately, there’s not a lot of data to answer those questions.

Where’s the Data?

Anecdotally, there certainly are indications that corporate clients want more diverse outside counsel. In 2019 nearly 150 general counsel signed a letter indicating their support for hiring more diverse outside counsel. (Of course, diversity is not and should not be limited to the hiring of women.) In 2020 Simon Zinger advocated the signing of a General Counsel Oath that included the affirmation: “I will lead a team that is diverse and built on the principles of equal opportunity.” Many general counsel have signed similar diversity commitments or aspirations.

But we don’t value what we don’t measure. And there’s precious little data about whether women are getting hired, and who is hiring them.

There are certainly some data about the number of women lawyers being hired by larger corporations. In 2022, the Institute for Inclusion in the Legal Profession published a report entitled Diverse Outside Counsel: Who’s Getting the Business? based on surveys of 136 corporations, over half of which were from the Fortune 500. Of those respondents, nearly three-quarters responded that they tracked the diversity of their outside counsel, either for all matters or matters that generated a threshold level of billing.

When asked the percentage of total matters referred to outside counsel where the outside counsel lawyer with primary responsibility for the matter was a woman, the responses were not encouraging: only 5.34% reported that 75-99% of their matters were assigned to women, and 3.05% reported that they had not assigned any matters to women outside counsel.

Unsurprisingly, the vast majority of the women hired in the numbers shown above were white women.

Another study largely confirmed those results. At the beginning of 2023, 62% of general counsel said they did not require their outside law firms to track their efforts to boost diversity, equity, and inclusion. Predictably, as with the Institute for Inclusion in the Legal Profession survey, those clients who did require their outside law firms to track those efforts reported higher levels of diversity in their outside counsel teams. If clients care, it’s likely that the lawyers who represent them will care. As one of the survey respondents insightfully observed: “The more direct the connection with revenue, the easier it is to convince our leadership to adopt DE&I initiatives.”

Even though neither of these surveys showed that large numbers of women are being hired to lead corporate matters, the numbers reported are likely the highest we would see across the legal profession. The respondents in the surveys above were largely large corporations—who for the most part hire AmLaw 200 firms—which, until recently, purported to have DEI programs.

Based on my personal experience, these numbers would be much worse if they measured the diversity of teams hired by state attorneys general or local governments, and they are downright terrible in places where there is no client gatekeeper, like leadership in Multidistrict Litigation (MDLs).

In addition, with the backlash to DEI efforts we saw throughout 2023 and continue to see in 2024, the survey numbers may actually get worse.

As I said at the outset, these surveys don’t address my larger question—whether women clients hire women lawyers. The surveys are aggregated, and therefore don’t identify specific clients who are—or aren’t—hiring women lawyers to lead matters. While I’m sure those clients are well-known in law firm circles, greater public accountability would lead to greater change.

But Let’s Not Just Talk About Hiring Women Lawyers . . .

It’s not as if we only want clients to hire women. Doing that, or even insisting that the women you hire lead matters, is only the beginning of what clients should demand. Men support other men at every opportunity: by bringing them to pitch meetings, by giving them facetime with clients, by praising their work to clients and others on the outside counsel team and within the law firm, and by supporting them in informal networks where relationships are made. Women have to do the same for other women.

• Start at the pitch. Beginning at the first meeting, insist that the person who will be running the matter for the law firm participate in the pitch. I can’t tell you how many pitches I participated in where the people (read:men) giving the pitch never worked another minute on the case. If clients don’t make this demand, it perpetuates the rainmaker/worker bee stereotypes for men and women lawyers present in so many law firms. Lawyers who do excellent work are rainmakers, and clients should treat them as such.

• Origination credit. Clients should demand that the women you hire to lead matters get origination credit. Women should be far more than tokens or relationship managers; they should be rewarded financially for bringing in clients and leading matters just as men are. Don’t just insist upon this at the outset. After a matter is concluded, follow up to ensure that the women on the team received the credit demanded.

• Meaningful work. While it’s important to request that your outside law firms staff matters with diverse personnel, that’s not enough. It’s also not enough to ask for a certification in an RFP that a firm is committed to diversity. Those are meaningless. Instead, ensure that the women on the team are receiving the opportunity to do meaningful work. You should ask questions similar to the ones U.S. District Judge William Orrick recently posed [paywall] at the conclusion of the Juul litigation: who’s taking depositions, appearing in court, or going to mediations and settlement conferences?

• Praise women who bring it. If a woman on the outside counsel team does a great job, please make that known. How many highly competent women have slaved away on a matter behind a man who takes all the credit? Break that cycle. If you see a woman doing excellent work, make that known to the partner in charge of the matter, the firm’s managing partner, or anyone else who can make a difference in that woman’s career. And, if you don’t see that woman at a meeting to which she should have been invited, say something.

Insisting that women get business—and receive credit for getting that business—is arguably one of the most important things we can do to advance women in the legal profession. Giving women business enhances their stature within their law firms and the legal community at large. It is incredibly disappointing that even “progressive” clients or nonprofit organizations continue to hire the same male-dominated teams. To change the numbers of women in management at law firms, to change the numbers of women leading government agencies, to change women running Fortune 500 companies, we must do better.

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