October 27, 2020

Volume X, Number 301

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October 27, 2020

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October 26, 2020

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Achieving Diversity and Inclusion within the Securities and Financial Management Industry and its Legal Partners

A very effective panel discussion on “Leadership Matters:  Meaningful, Measured Impact in Diversity and Inclusion” took place September 23, 2020 during the SIFMA C&L Virtual Forum Elaine Mandelbaum, General Counsel of Interactive Brokers and the current SIFMA C&L Society president moderated with panelists Christopher Lewis, General Counsel, Edward Jones; Robert Marcham, Senior Policy Advisor on Diversity and Inclusion, U.S. Securities and Exchange Commission; and Grace Speights, chair of  Morgan Lewis’ Labor and Employment practice. Too many highlights to cover fairly, but these points that resonated with me.

  1. The business case for diversity and inclusion within the wealth management industry and its legal counsel providers is long settled.  The panel spent little time discussing this long established fact.  The written course materials nonetheless pulled together a wealth of empirical evidence proving diversity and inclusion can only help a financial industry firm’s and its legal counsel’s bottom line.  Most importantly, the fact of the business case is an outright rejection of the old excuse of there not being enough diverse talent.  As we learned in kindergarten, if there’s a will then there’s a way.   If nothing else, the program laid out such “a way.”

  2. Inclusion means creating a sense of belonging for all.  Inclusion means being heard, having a voice,  having a seat at the table, being on the committee, being asked your views, active listening, and all of the other things big and small that encompass being made a part of something.  Marcham highlighted the importance “career allies” have played in his career and how such acts can easily foster inclusion, especially within the financial services industry legal practice.

  3. With intentional commitment and effort, diversity and inclusion can be achieved.  Here, the panelists were especially helpful in providing concrete acts on how to bring about positive, tangible results.

  • Create space for a dialogue. Webinars, town halls, practice group meetings, one-on-one mentoring, one-on-one conversations.  The list of opportunities for dialogue in and out of the firm and the office is endless.  Lewis cautioned honest dialogue can sometimes be “messy” while also presenting opportunities to extend “grace” to yourself and others.  All of the speakers addressed constructive dialogue.

  • Strongly consider implicit bias education. Speights was straightforward explaining the importance of including implicit bias discussions early on in any program because of the unique educational opportunities it offers.  Indeed, acting from a place of implicit bias can often create the wrong impression, however innocently or unintentionally.  And if the dialogue can already sometimes be uncomfortable, or you are not sure what to say or how to say it, then learning to avoid those stumbling blocks can be a good faith display of intentional commitment.   Implicit bias education can also show us more constructive ways to say, to do, and to express while avoiding labels, and it can help to expose our own blind spots.  As more seasoned lawyers, we often tout our judgment as helping us “to know what we don’t know,” and thereby avoid traps.  Education on a topic like implicit bias can help us understand what we may not know as well as create an environment where we can more readily recognize the other person’s perception.

  • Any effort must be intentional and deliberate. Every panelist was absolutely clear on this point.  As one panelist described it, it means “doing what you say … doing what you say you stand for.”  Speights described it as “not waiting for results to happen.”  And she used examples of how intentional and deliberate actions foster success within her firm and the practice group she leads.  And although a concern about “saying the wrong thing” might be real, it cannot keep us from acting and doing, especially when there are steps we can take to educate ourselves.  All speakers agreed that intentional engagement at the top of any firm is a key driver.  Intentional and deliberate effort also means what we do day‑to‑day and on the weekends, both inside the office and out of it.

  1. Accountability and measurement are necessary to achieve results. Marcham encouraged us to avoid barriers that we often throw up, and not to see diversity and inclusion results as a “zero sum game.” Instead tangible D&I results are a chance to grow both inclusively and financially – the well-known win‑win.  Lewis wryly observed the financial services industry measures everything so there is no excuse not to measure our results on D&I.  Speights discussed how including D&I evaluations within 360 reviews—which  are already an evaluation staple within financial services and legal firms—can lead to measurable results.

Going forward then, we should consider:

  • Dispensing with excuses like “not enough talent.”

  • Creating spaces and opportunities for dialogue and action.

  • Better educating ourselves, including exploring implicit bias theory.

  • Committing to an intentional and deliberate program, including honest leadership from the top of the organization measuring our efforts and holding ourselves accountable.

  • Measuring our efforts and holding ourselves accountable in tangible ways.

These points will help us avoid having our best intentions about diversity and inclusion become simply a fuzzy aspiration serving neither the firm nor the individual.

© 2020 Winstead PC.National Law Review, Volume X, Number 269
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About this Author

John Kincade, Winstead, Shareholder; Co-Chair, Securities Litigation & Enforcement
Shareholder

John Kincade is Co-Chair of Winstead’s Securities Litigation & Enforcement Practice Group. He practices at all levels of federal and state securities litigation, arbitration and regulatory enforcement disputes. He represents a wide range of financial services clients including brokers/dealers, investment advisers, banks, and their registered persons in complex, high stakes FINRA arbitrations, FINRA Enforcement proceedings and investigations, and SEC and State enforcement matters. He also advises privately held and publicly traded companies and their officers and directors in federal...

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