The Do (More) Good (Better) Newsletter™ #2

The The Do (More) Good (Better) Newsletter™ #1

Beyond Advisers Featured in Law 360

Beyond Advisers was featured in this Law 360 article, where Founder Scott Curran described how firms with a longstanding commitment to social impact continue their ESG efforts despite pushback, driven by genuine values and client demand.

Read the full article below!

Law Firms Diverge As Anti-ESG Pushback Continues

BY AEBRA COE

A continuing onslaught of legislation and litigation opposing corporate environmental, social and governance actions has created a fork in the road for law firms, with some choosing to scale back efforts and others pushing ahead with their internal ESG and diversity, equity and inclusion goals.

U.S. House Republicans in September passed two pieces of anti-ESG legislation as a part of what they dubbed "woke week," in reference to socially and environmentally conscious corporate and investment policies.

Meanwhile, numerous state legislatures continue to introduce legislation aimed at limiting corporate ESG and DEI, with 86 anti-DEI bills introduced in 28 states and the U.S. Congress since 2023, according to a legislative tracker assembled by the Chronicle of Higher Education.

Additionally, a conservative group whose founder sparked the demise of affirmative action in college admissions threatened to sue a number of law firms and filed lawsuits against a handful of them last year over their diversity programs, saying they discriminate against nonminorities.

At the same time law firms continue to see pressure elsewhere to embrace ESG and DEI principles, including from many clients and wide swaths of talent, experts say. And those operating internationally face regulators in the European Union and U.K. requiring them to comply with ESG laws there.

"There's a tension for law firms," said Patricia Gillette, a consultant and speaker on diversity in the legal industry.

"There are some firms, big firms, that have said, we're not going to put as much emphasis" on ESG and DEI as a result of the pressures, Gillette said.

In the diversity space, that may mean restructuring so that the firm's director of diversity no longer reports to top management or cutting down on the number of personnel within the DEI team.

Today, more than a year after the string of anti-DEI litigation against law firms first began, how firms have chosen to respond to that tension has begun to create a contrasting portrait in the industry, experts say.

"The first category of firms — those with a deep history, commitment, and culture of doing important social impact work — haven't skipped a beat," said Scott Curran, a social impact legal expert at Beyond Advisers who teaches social impact law at Chicago-Kent College of Law.

"They may have made adjustments to their programs and how they communicate about them, but they were doing this type of work before DEI was a popular acronym, and they'll continue to do this work regardless of what happens to or around that acronym," Curran said.

The second category of firms — those with a less deeply rooted commitment — may be more susceptible to headlines and recent events, Curran said, and may have reacted by making bigger or more noteworthy changes, up to and including completely eliminating certain programs.

Shauna Bryce, a consultant to law firms at Bryce Legal and former chief diversity officer at Steptoe LLP, also pointed to an increasingly clear line that's begun to appear between law firms that are deeply committed to DEI and those that have simply engaged in diversity efforts in a perfunctory manner.

The latter firms may have dipped their toes into DEI work in recent years, but likely didn't move beyond "performative DEI," Bryce said, which she defines as activities that are temporary and limited in scope such as a scholarship, social media posts or heritage month celebration.

"It's not outcome-driven, there is no accountability assigned to it, and it is very low risk. But also very low impact," she said.

Where other law firms are truly making a difference when it comes to diversity and inclusion is in making structural changes that address how those firms recruit, retain and develop talent, she said.

"That is the core of DEI work. It is finding people who are genuinely the best and creating a structure in which they can flourish," she explained.

There has been some pullback and fear around the specific language of DEI and some of the performative aspects of it, but that has not swayed the firms that have taken the deeper, more integrated approach to diversity, she said.

"What I don't see pullback on, and the part that seems to be where some firms are full steam ahead, is the actual work of DEI," she said. "What we see as the hard work, the impactful work, the real work of DEI, focuses on structural elements."

Pamela Cone, CEO of Legal ESG, says she sees the same thing happening when it comes to law firms in the wider ESG space.

"If they were serious about this all along, they are not changing the course," Cone said.

Instead, what's happened is that firms have been a little quieter about their efforts, and some have moved away from using the actual ESG acronym. However, the underlying work is still the same.

"They're calling it their sustainability program or their social impact and sustainability program," Cone said.

The law firms that aren't letting up on ESG are doing so because there are compelling reasons to invest in it, said Curran.

"Clients, talent and the industry are paying attention," he said. "Clients need sophisticated guidance. They want it from firms that can help them navigate the evolving landscape. And ideally they want that service from firms that are also walking the talk themselves. Similarly, top talent increasingly wants to work at firms that both speak and practice social impact law."

--Additional reporting by Marco Poggio. Editing by Pamela Wilkinson and John Campbell.