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Episode 80: Diversity and Inclusion Programs – What Law Firms Need to Know with Tyrone Thomas, Jr., Vice President and Deputy General Counsel at Invenergy

Sharon:   Welcome to the Law Firm Marketing Catalyst Podcast. Today my guest is Tyrone Thomas, Vice President and Deputy General Counsel at Invenergy, and today he’ll give us his perspectives on diversity and inclusion and how it impacts his selection of outside counsel. Tyrone, welcome to the program.

Tyrone:   Glad to be here, Sharon.

Sharon:   So, can you give us a brief overview of your career?

Tyrone:   Of course. I don’t know how far you want me to go back, but I have a B.A. in Urban Studies from Hunter College and I received my J.D. from University of Illinois College of Law. I spent some years in private practice in Washington, D.C. at DLA Piper, in San Francisco at Hanson Bridget and then in Chicago at a firm called Gould & Ratner before I transitioned in-house. I’ve spent the last six years of my career at Invenergy which for some of the listeners who wouldn’t, know is a global leader in sustainable energy solutions.

Sharon:   And now you’re based in Chicago. Is that where the firm is headquartered?

Tyrone:   Correct, our company is headquartered in Chicago, but we are global—I’d say our U.S. Headquarters and our global headquarters are in Chicago. We’re a global company, so we’ve got offices—we’ve got a lot of small offices, but larger offices in Chicago, Denver, New York, Toronto, Mexico City, San Salvador, Tokyo, Krakow.  We’ve got offices all over the world.

Sharon:   Wow! Do you travel a lot in your business?

Tyrone:   I personally do not although there are other folks who do. There’s actually a role I’m currently for on our legal team now that will have to travel domestically a good bit more than most of the attorneys do.

Sharon:   I guess I really should say can they really travel.

Tyrone:   And that is a challenge we’re looking at right now, too, is if a location is open for business and they are oftentimes not optimized to conduct business virtually and so that can be a challenge in some of the jurisdictions where we operate where they’re open and you kind of need to be there in order to really get the best out of the engagement.

Sharon:   Wow, O.K., when hiring, do you mostly find yourself evaluating attorneys from larger firms? You’re responsible for hiring outside counsel from time to time, right?

Tyrone:   Yeah, a good bit. Because we sort of develop, build and operate and finance these utility-scale energy facilities, we have very large sort of transaction-based legal needs, not to mention operational legal needs and so every deal—and there are hundreds of them at any given moment—myriads of counsel both on our side and representing a lender or a buyer or a regulator—well, a local regulator or what would have you. So, we have quite a bit.

Sharon:   Mostly would you say because the deals are larger, would you be mostly looking at attorneys from the larger firms?

Tyrone:   Actually no, so it’s a little interesting because it really depends on the nature of the world. So we have some work for example that more often goes to larger firms, your project finance work, some one-off tech negotiations, a lot of our M&A, federal regulatory work for example, and then we have a whole other subset of work that really goes to smaller firms just by the nature of their work. So, state and local permitting, real estate, environmental, tax controversy, tribal matters especially involving Native Americans in the U.S. or first nations in Canada; those really need people who really have a connection in addition to having the expertise and I think sometimes that’s where the smaller firms can really win out is they are the place to be within their locale and they have the technical expertise and you really can’t replicate that at a national level.

Sharon:   That’s a good point. Today with diversity and inclusion being such a large subject, how does a firm’s diversity and inclusion program influence your decision to hire a firm?

Tyrone:   It’s an interesting question. I really appreciate that question. We all know the legal industry has a D&I problem, full stop. They have a problem. It’s been a problem for a long time and so what we’re looking at is not necessarily a firm that is creating circumstances that we know today don’t exist, but a firm that is really kind of being a partner in trying to right the ship as it were. Having a D&I program and talking publicly about the firm’s commitment to D&I, including on the firm website which we see is really the least that any firm can do.  So just to be very direct, if a firm doesn’t have a program—and you see this from time—doesn’t even mention it at this day and age, they’re really setting themselves apart from the competition in a bad way. The minimum you can do is to have something in place where you’re at least ostensibly trying to do something about it. The way I always look at this is I occasionally will give these talks to junior attorneys at law firms about how to market themselves to potential clients, how they’re building those networks for later on when those can turn into books of business and the one thing that I always tell them without fail is that there’s no shortage of law firms or legal departments that are training and pumping out good lawyers who do good work. The legal work itself is a commodity. It’s everything else you bring to the table that isn’t and so every law firm and every lawyer that’s good at what they do needs to be thinking about what they can do beyond that and when law firms are competing for business, I think that’s true there as well, so from an individual lawyer perspective, there’s client service; there’s personal; there’s affability; there’s strategic insight in those types of things. From a law firm perspective, they need to show among other things that they have an environmental, social and governance framework and that they take it seriously and so show me your program. Of course, you have to have a program, but what are your metrics? What are your goals within this program and how are you measuring up against them because most of these firms didn’t pull one of these out in 2019. So you’ve got year over year of having these programs and putting some dollars behind them and one would hope that you have something to show for it and that’s really interesting to me, marrying the program with the actual data.

Sharon:   So that would be the evidence to you that they are serious, the metrics.

Tyrone:   Yes, the metrics and then obviously we want to support good firms who can do the work we do who themselves are actually moving the ball forward on these ESG frameworks.

Sharon:   Has a firm’s ability to demonstrate they have a robust D&I program, has that become more important would you say in the last few years?

Tyrone:   Yes in some ways. I pause for a second because as you know, Sharon, we have talked many times. I’m a black man and so I was never really able to overlook—that’s assuming benevolence—or ignore—that’s assuming malevolence—the realities of systemic discrimination or exclusion or in many cases, personally my clear status as the other in a variety of professional circles. So for me, I’ve always been looking at firms having a robust D&I program as of paramount importance and I’ve always been thinking about it in some ways from the gaze of myself as a more junior attorney or more junior professional in what I’ve experienced, sometimes just because of the structure itself. I think I have many friends and colleagues who don’t share my demographic or my experience in the national conversation, especially right now following the public killing of George Floyd, has really amplified that need and so I think there were always people in my position who were pushing on this and now I think you’re seeing much more of this push across the board and so there’s less room for lip service. That’s really what I’m seeing. I’m seeing it grow and I’m seeing some firms rise to the challenge and what that’s doing is it’s putting the folks who are giving lip service in an uncomfortable position of no longer having the pack to sort of blend in with.

Sharon:   When you’re looking at a D&I program, what are you looking at? Are you looking at how many ethnicities there are? Are you looking at how many women or LGBT? Like what to you is important?

Tyrone:   I think that the core that we’re talking about—so when we talk about diversity, you can talk about diversity of thought; you can talk about religious diversity and a variety of other things, but I think what a lot of people are focusing when they’re talking about diversity within the legal profession is really an effort to address representation issues that are specific to the legal profession and that themselves are widespread and so we’re really talking about racial and ethnic diversity. We’re talking about gender diversity and we’re talking about gender identity diversity. That’s really what we’re talking about. I think we’re talking about those four above all else because those four are I think, where there’s the most room for improvement within the legal community.

Sharon:   What we would you advise? We’ve had several clients. They’re very, very good firms, but they are basically white males who are middle age, white males who are older who have maybe hired a woman or somebody and that person does not last long. If they don’t have diversity, how at first would you advise to attract a firm and keep the person and then what to do in terms of being in the marketplace?

Tyrone:   I think that’s a great question and I think that even though it not may not seem like it makes sense, I think to that question is the reason why the acronyms in the D&I space have seemed to grow in letters. It’s because the simplification which I think you need to do to market a concept was doing the concept an injustice and so you have diversity which is in many ways what you were mentioning, the instance of hiring let’s say this female lawyer which, as you know, is the presence of various different identities within an organization. You’ve got inclusion as the next step. So, the presence alone isn’t going to do anything there. You’ve got tokenism. You have a variety of other issues where someone is brought in, but you’re not really making them part of the fabric of the organization. So, you have inclusion which is intending to deal with that. That’s the act of ensuring that the diverse array of perspectives within your organization is heard and valued. So, the employee, from the employee’s gaze, if they are in an inclusive organization, they feel included; they feel involved and they feel accepted.

Sharon:   No, that’s glue. That’s glue, to get somebody to become loyal to a firm.

Tyrone:   And then—and we can talk about this a little later; we can put a pin in it—but then you’ve got the equity piece and then you’ve got this word belonging that I think has started to come into the conversation and I think there are also good concepts for firms to think about as they’re crafting their approach to solving for D&I deficiencies.

Sharon:   How would you define equity?

Tyrone:   Sure, so we’ve got diversity, this is fact. You have people; you’ve brought them in.  You’ve got inclusion, this action that you’re trying to make these people like the glue to your point part of the fabric of the organization. I think the equity is thinking about why when you try to diversity and inclusion, they don’t work alone. Equity is saying that is it making an acknowledgement beyond the structure that—the reason we’re having this conversation about diversity and inclusion in the legal industry right now and most other industries is because they’ve historically been structured and led with one perspective mind: it’s the hiring partner whom you just mentioned. It is an upper middle class or an upper-class white man and if I’m being very specific, the perspective is also that of a cisgender man who is not living with a disability. Now, there’s nothing wrong with being an upper-class cisgender white man who is not living with a disability. I am friends with and consider myself very close to many of them; however, if you’re designing systems and enforcing structures that only take into account their needs and their strengths and their challenges, then you’re missing things that might not necessarily be the same with people in other groups and therefore the systems are not fairly set up and I think that’s the equity piece. They’re not fairly set up because equity’s not a quality which I think sometimes is being used interchangeably. Equality is we’re all sitting in the same chair right at the table. Equity is I have three young boys; one of them needs a highchair because he’s just too small and from an equitable perspective, he needs to be at the same level to be able to engage with the spread on the table in the same way. He needs something different than what I have. I mean that’s it in a nutshell. I could go on, but I don’t want to.

Sharon:   This is the first time I’ve really heard the term used in this context which is belonging.  What do you mean by belonging?

Tyrone:   So, belonging’s really the end goal. You’re looking at diversity. You’re trying to increase diversity. You’re trying to foster inclusion and you’re trying to be equitable in your approach to both in an effort to instill a sense of belonging in your employees and I think that when we’re not goal-oriented with our execution, our execution falters and so this is the goal. It’s the feeling that any employer worth their salt really wants to instill in their employees and I’ve seen some people roll their eyes when that comes out and so I want to be clear. I don’t think belonging—many people don’t think belonging means that you should feel as embraced by your job as you do by your family or your friend groups. It doesn’t mean that your best friend in the world should be your coworker. It’s just to feel that your values support it and intrinsically motivated to perform well and I think that when firms are thinking about—that’s where they’re trying to get and they view the deficiencies or sometimes the feedback you hear from diverse talent as telling them why they don’t feel like they belong. I think that reframing really helps people figure out what needs to change and how they need to change it.

Sharon:   I guess I’m just sitting here wondering. I’m thinking of seasoned lawyers who’ve really look at the world one way and are now being told you’d better broaden your vision, how resistant they are. I’m generalizing–

Tyrone:   Of course.

Sharon:   But it seems like a sort of hard thing to do.

Tyrone:   I think it is, but I think it’s hard to do because we view it as this sort of separate thing, as opposed to viewing it as we get to the lower common denominator as a problem. Seasoned lawyers solve problems. Clients come to them with problems that are not easily solved, and they think of creative solutions and that’s why they get paid. That’s what this is and I think when you’re in-house, I think it’s easier sometimes to see the congruity between the practical problems you’re solving for your internal client and the operational problems you may be solving for your group, for your legal team and I think sometimes people start to see those differently, but you’re just solving for that problem and when these seasoned who are good at problem solving put on the right hat to approach the issue, you see way more sticky solutions emerge.

Sharon:   No, that makes sense if you’re talking about problem solving and that is what lawyers do. There just isn’t enough minority talent to go around. How do small firms compete for this? Money isn’t everything to everybody, but it seems like it’s just so difficult to first find it, find the right fit. It’s like hiring anybody, but then we say, “We want to expand our diversity and there’s nobody around.”

Tyrone:   There are two issues. First, I think—and you touched on this about the money. Golden handcuffs, as they call it working in a large firm, they’re still handcuffs and for some people, especially for lawyers who have actually experienced them, the tradeoff isn’t necessarily worth the increased salary and so small firms do have a greater ability by virtue of their size alone to offer an experience more tailored to the individual attorney and more inclusive of their input. That’s not to say that that’s happening rapidly at small firms, but it’s to say that it’s much easier to turn that small skipper than it is a larger juggernaut and I’ve seen people who have gone to smaller firms and have gotten things like flexible working locations. I’m not talking fully remote work, maybe one or two days a week where they work somewhere else, or a dress for your day policy which we implemented a few years ago at Invenergy where you’ve got your formal meeting; you’re in your formal clothes; you’re in something more casual and these things at the smaller firms, they’re free. You’re working from home in your home office that you paid for with your time and you’re dressing in your clothes that are more casual, but the ability of people to blur the line then between working life and personal life in terms of when they collide—you have someone coming to your house to work on a broken socket and you just to physically be there to let this person in.  You can work from home that day, still be as productive, probably more without the commute, and that blurring is really, really helpful and it allows people to feel like the work isn’t getting in the way of the personal life. Those types of things I think sometimes are harder for larger firms because a law firm—at the head, it’s a committee and the larger that committee, the more difficult it is to make certain decisions. I think firms can compete on culture if they choose to. I disagree with the assertion—I’ve heard it before and we were chuckling because it was just over, I think, the weekend earlier this week, a statement from the CO of—I think it was Wells Fargo—about not finding enough talent. I think the challenge sometimes is—again, it’s how deeply we go into the problem solving. It is saying maybe the issue isn’t—because we can look at the numbers; we know the numbers; we can see the numbers from the law schools. We know the number of diverse sound that’s coming in and coming out and there’s a pipeline problem for the law schools, but there’s a lot lost between people who are coming out of school and people who are landing up in these jobs and I think what we can do is we can look at the methods by which we’re recruiting and ask the question at a minimum: are they sufficient and I think the answer is no. I know the answer is no.

I know that even for non-legal jobs at my company, what you started to see is when—there are organizations like one called HBCU 20 by 20 that’s helping organizations sort of HBCU students and these are great students and they’ve got great grades and they’re just really being promoted and amplified for these jobs and when people are starting to take advantage of these programs, they’re seeing just a wider array of candidates. Irrespective of whom they choose, they’re able to sort of hit the Mansfield Rule some firms have where they’re agreeing that any candidate class has to be have a certain level of diversity across certain metrics. Obviously, I’m simplifying, but it’s really thinking about that. It’s thinking is the tried and true method that you were using for recruiting, is it really just you leveraging the same circles in which you run and therefore coming out with more of the same or are you broadening yourself to attempt to gather as many candidates as possible? And I think that’s a real question that firms should ask themselves.

I’m in the Chicagoland area and we have on-campus interviews at a lot of law schools, but we also have the Cook County Bar Association which focuses on minority law students and attorneys and they have a job fair every year and that job fair, a lot of the bigger firms have started going to that job fair because—I mean it’s an amazing organization–I interviewed at that job fair when I was in law school—and you’re going to see a lot of diverse candidates. We can wax poetic about why that is and whether or not the people who are pulling them to that job fair, like whether there is a separate sort of track for reaching out to those students—spoiler, there isn’t—but I think sometimes for the firm, you don’t have to recreate the wheel. You can piggyback off of a lot of the efforts that are out there that organizations like CCBA in this case are doing and maybe you don’t have to unpack why when you’re looking in this place versus this place, you’re seeing far fewer minority candidates. Maybe you just look in both places. It’s the easiest solution and then you have a broader, more representative pool to pull from and you’re no longer saying to yourself, “Well, I did everything that I did last year and I only had three students of color out of sixty who applied,” you’re now saying, “I had fifteen out of sixty” or “I had twenty-two out of sixty and it looks more like it should.”

Sharon:   You’re involved in Invenergy’s recruiting?

Tyrone:   I am in a few ways. Our legal team about thirty-two people, lawyers and paraprofessionals, large, fifteen of those reporting to me and I’m actually hiring a sixteenth right now, a now lawyer for permitting and litigation. In that sense, yes, I’m involved in a lot of that hiring. I do sit on a lot of interview panels for other groups just because if I’m interacting with them or my team’s interacting with them, I want to provide some perspective and then my colleague, Utopia Hall, and I cofounded, at the end of last year, our company’s affinity group for people for African ancestry called Black and Brown of Invenergy or BBI and in that role, we are also a part of the conversation on hiring. We’re not really leading anything on hiring per se because we do have a top-notch HR team, but we’re providing that input that I was mentioning earlier where there are people who have resources that they just have and that you can tap them for those resources. We know folks at the National Black Law Student Association–

Sharon:   The national—I couldn’t hear that—the national?  Which association?

Tyrone:   Black Law Student Association or BLSA.  There’s a chapter at almost every single law school in the U.S. or the Navy with the National Association of Black Engineers.  There are similar organizations we can reach out to and they already have job fairs and they have job listing boards when a job comes up and you can put them in your network and so when you put a job up, it doesn’t just go on [unintelligible] and LinkedIn, it also goes to those organizations that are relevant for the particular job. I’m a member of the Bracknell Lawyers Association which was founded here in Chicago and the same thing. When I post a job, I send them a job description and say, “Will you also post this on your board?” I’m an alumnus of The Leadership Counsel on Legal Diversity (LCLD) which we talked about the last time we spoke.

Sharon:   Yes, and I remember. Can you say the name a little more slowly again please?

Tyrone:   The Leadership Counsel on Legal Diversity.

Sharon:   The Leadership Counsel—yes, I know you spoke very highly of that organization.

Tyrone:   They too have a job board and you can submit jobs there and then within our alumni network—I won’t give out the secret sauce there, but we also have an ongoing communication, all three hundred or so of us who are follows at same time that it self-serves as a bit of an informal way to post that opportunity as well, sort of a very, very, very long chain that’s been going on now for a few years, but I think it all comes down to looking outside of the tried and true paths and saying—just being open to being informed, treating it like a problem and then breaking it down into its component parts and then once you start to look around, you realize that there’s a ton of other people who’ve already done the work, already gathered the resources and set up the job boards. They’re just waiting for the inputs from the larger players in the industry.

Sharon:   That’s a good point. It’s a really good point. I mean you don’t have to reinvent the wheel. I’m circling back because I’m always curious. When you were in-house, what attracted you to an outside counsel position—I mean to leave and go in-house? I guess I’m going backwards. What attracted you to leave a big firm and go in-house?

Tyrone:   I think the opportunity was right and I think that I had had conversations, very shallow at the time, with other in-house counsel who really talked to me about the difference between their in-house practice and their outside practice and there are benefits to both, but I love solving problems. This may sound dorky, but I’m a born crisis manager. It’s what I do and it’s what I do at Invenergy and when you find that slot and you slide into it, it can be beneficial for your career and to do that, I need to know not only what you need me to do, but what came before it, why you need me to do it, how you got to that decision and I find and I think a lot of in-house lawyers find this was something I was looking for and this is something that I found. When I’m in that room when we’re talking about the decision that may lead to another decision and to another that eventually may lead to assignment for outside counsel—one ,we just have such a greater understanding of what’s being asked; two, we can nip certain problems in the bud if we catch them and then three, I can be a better in-house counsel to my outside counsel which is something that’s not talking about a lot, but I’ve worked as outside counsel with inside counsel who’s just terrible at conveying appropriate information to get this job done and I feel like I have the ability when I have the bandwidth to be a better inside counsel to my outside counsel because I’m focused on not just understanding what we’re doing and why we’re doing it and how it feeds into the broader picture, but also in leveraging outside counsel appropriately and in touching them in some ways how to be better outside counsel to Invenergy which in turn gives us better product and makes my and my team’s job easier and so more information for me just makes me happier and being in-house, I have more information; I have a better understanding of the Platonic form of what it is I’m doing and that sort of gives me comfort because now I’m not sort of grappling with these unknowns, these known unknowns.

Sharon:   That makes a lot of sense and I’m sure being on the other side of the desk would add a lot to that, having been on both sides.

Tyrone:   Yeah.

Sharon:   Tyrone, thank you so much for being with us today. I could go on forever and ask you many more questions but thank you for taking the time and for everybody, that’s it for today’s Law Firm Marketing Catalyst Podcast.

Tyrone:   Thank you for having me.

Sharon:   And please join us next time when our guest will be another law firm professional who can help you move your firm forward. You can find us wherever you download your podcasts and please rate us. Thanks so much for listening.

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