Diversity in corporate legal departments is generally more developed than diversity in law firms. However, legal departments still have a long way to go, especially when looking at the ranks of senior leadership. If sustainable progress regarding diversity is desired, senior leadership must first create an environment supportive of diversity. There are many good articles discussing ways to measure this diversity issue, from analytics to surveys. A quick internet search also provides some very good suggestions on how to encourage diversity, from focused recruiting to professional development. All are fine efforts—but without a detailed blueprint agreed upon by senior leadership, any diversity initiatives tend to be short-lived. So, let’s address the matter of in-house counsel diversity directly—how does in-house counsel leadership create conditions where diversity is a goal with objective means, and not merely a subjective wish? Here is one approach.
The framework discussed here is called choice architecture—those systems and practices put in place so the chance for bias in hiring and evaluation is substantially mitigated. Essentially, this framework encourages judicious decisions, not through changing people’s views, but by altering the environment in which decisions are made. While the idea is not new, its application in legal departments has been minimal. As a necessary component, choice architecture takes away some autonomy of managing counsel—not by limiting their right to decide, but through encouraging situationally aware rational decisions. By deliberately structuring management options, this design serves to limit subconscious bias, as well as create more opportunities for greater diversity. In most organizations, there is no intentional bias. However, managing counsel can become immersed in their own careers, and neglect to notice how others are attempting to succeed as well.
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