When I began practicing in New York in the early 1980’s there were
still vestiges of the "white shoe"/Jewish law firm divide; indeed,
Breed, Abbott & Morgan, where I started, and Shea & Gould, where I
also worked, were almost caricatures of that divide.

Today, of course, this (properly) feels like ancient history, but
Eli Wald, a law
professor at the University of Denver College of Law, has undertaken
a study revisiting
the history of the divide and how
it was eventually surmounted, with an eye to the question of whether
there are lessons in that history for today’s challenges of diversity
in large law firms—both with respect to minorities and to women.

The professor is not hopeful: 

"Indeed, his research into the history of Jewish lawyers
and firms in New York from the late 19th century to the present seems
to leave him extremely pessimistic about the prospects for minorities
and women today."

First, let’s recap this history.

For essentially the first half of the 20th Century, the elite corporate
New York bar was upper-class white Ivy-League educated Protestant.  (Cahill
Gordon was the exception:  A Catholic firm.)  Jewish firms
were plenty numerous—Wald calculates that 60% of the city bar’s
membership in 1960 was Jewish—but
even such powerhouses today as Paul Weiss, Fried Frank, Kaye Scholer,
Stroock-Stroock, Weil Gotshal, Skadden, and Proskauer were marginalized
and focused on (perceived as) distasteful, down-market practices such
as real estate, litigation, and bankruptcy.  Protestant lawyers,
18% of the total, handily accounted for more than half of those at
large "corporate" firms.

The practices Jewish firms specialized in, theorizes Wald, gave them
a "protected" ecosystem in which to develop expertise and, when corporate
America came calling for more sophisticated legal services in areas
such as litigation, antitrust, and M&A, the Jewish firms were ready
to respond while the white-shoe firms were caught temporarily flat-footed. 
Wald sees the establishment firms’ willingness to hire Jewish lawyers
as driven by the competitive realities of the marketplace—which
changed in the 1970’s.

When Wald asks if this experience holds out hope for women and minorities,
he comes up empty-handed.  In a world of globally competitive
firms racing to seize even the slightest comparative advantage, long
gone is the opportunity for women and minorities to cultivate "protected
practice areas."

Worse for women and minorities, the "flip side of bias"
that perversely ended up working in
favor of
Jewish lawyers will do women and minorities no favors.  "Flip
side of bias?"  Yes:  If
Jewish lawyers were viewed as being overly aggressive and money-grubbing,
that could suddenly become a powerful attractor to firms determined
to toughly represent their clients and make money doing it.

But stereotypes about women (preoccupied with work/life balance, never
going to be as dedicated as men) and blacks (lazy, intellectually inferior)
will never redound to their advantage, posits Wald.

So then, pretty bleak, eh what?

Not so fast.

Discrimination based on presumptive stereotypes deprives firms of
potential talent.  Need we be reminded that women are still 50%
of the population?  You might as well write off everyone whose
birthday falls on an even-numbered day.  As one of a couple of
dozen Jewish partners Wald spoke to who joined large firms between
1945 and 1962 put it:

“You sort of had no choice, even if at your heart you were racist,” one of Wald’s interviewees told him. “You had to understand that the economics of the business could no longer support your racism.”

And doesn’t that indeed say it all?  "Economics does not support
racism."

One or more smart firms are going to figure out how to incorporate
women and/or minorities into their ranks in ways that will endure,
and gain access to an inexcusably neglected talent pool thereby.  And
who would suggest that such a competitive advantage will not soon be
mimicked by less progressive, but equally profit-obsessed, peer firms?

I’m far more optimistic than Prof. Wald—not because I always
trust people to "do the right thing," but because I always trust people
to "do the right thing [for their self-interest]."