Beyond Advisers Discusses Language and the Law with The American Lawyer

As political rhetoric around diversity, equity, and inclusion evolves, so too must the strategies of law firms and advocacy organizations. Beyond Advisers CEO Scott Curran recently discussed with The American Lawyer how social impact leaders can adapt their messaging without compromising their mission or values.

'Language Whac-A-Mole': Big Law Tries to Keep Up with the Trump Administration's Word Targets

By Abigail Adcox

As the legal industry reckons with President Trump’s attack on DEI efforts, many law firms this year swapped out certain language on their websites and other materials to be less offensive to the administration, with some continuing to play what one industry consultant termed "language Whac-A-Mole."

Firms have scrubbed their websites, renamed positions within the firm, and in some cases, disbanded affinity groups. Many firms have eliminated terms from their websites that the Trump administration has signaled are problematic, including "DEI," "diversity," "equity" and mentions of races and ethnicities. Instead, firms are now more commonly using terms such as "inclusion," "belonging" and "culture."

While replacing problematic words with less offensive euphemisms may seem minor compared with other law firm actions, it's a high-stakes environment. If a firm falls behind, it risks finding itself the target of a future executive branch action because of the government’s tendency to zero in on certain words from firm websites, as well as associate fellowship and scholarship applications.

For instance, deputy associate attorney general Richard Lawson cited Susman Godfrey’s website usage of the word "under-represented" in a line of questioning about the government’s justification for a racial discrimination claim. It’s not the only time the government has cited a firm’s website or statements to make their claims in litigation related to law firm executive orders.

'Reframing and Not Retreating'

Of course, not all firms are responding the same way to this pressure. They are falling into several different categories, with some firms staying the course; other firms making some changes, but sticking to their core practices behind the scenes; and finally, a third group of firms that are making more substantial changes, according to several observers.

Two observers said that the majority of law firms are falling into the second category: making some changes, including on their websites.

"I believe most firms are reframing and not retreating,” said attorney Scott Curran, founder and CEO of consulting firm Beyond Advisers.

“They've conceded the [DEI] acronym,” said Curran. “They've made changes to firm materials, whether that be website or other collateral, but they're continuing the work, and they're talking about it as a firm in the leadership meetings and with their teams.”

And that’s where some law firms have been creative in adjusting websites.

"I think a lot of it is the outward-facing communication—so the websites, the lingo that we're using," said law firm DEI consultant Amie Santos, who is founder and principal of AKS Advisors.

"A lot of people are dropping the terminology 'equity' and moving more towards 'belonging,' and 'culture,' and 'inclusion.' I think some of these groups are rethinking affinity groups and off-sites and their training, but at the core, the work is still being done. Looking at policies, retention, promotion, compensation—all of that work is still happening behind the scenes."

Web pages describing firms’ cultures have been altered in recent months. Goodwin Procter now has a webpage titled “Opportunity, Inclusion and Belonging,” K&L Gates has a webpage titled “Opportunity & Inclusion,” and Morgan Lewis & Bockius has a webpage labeled “Inclusion,” as Law.com previously reported.

Curran said that language changes may evolve, referring to the situation as "language Whac-A-Mole."

“There is no silver bullet [or] magic answer that's guaranteed to last,” Curran added.

Risk Factors

Whether law firms go for an extreme edit of their websites and materials, a light touch, or nothing at all, is a very individualized decision, observers say.

“Firms are assessing what their level of risk is. They're making decisions about what they feel is safer than [their] previous language. And so I think that's where you're seeing some language changes, even recent ones,” said Cari Brunelle, founding partner of legal industry consultancy Baretz+Brunelle.

How law firms adjust could be based on their size and visibility to the administration, as well as a firm’s pro bono work and client base. A firm’s risk level can also evolve.

“As [firms] pick up new matters, potentially their risk goes up. ... If they determine that they are at risk, then they're going to be more conservative around their practices and the language that they're using,” Brunelle added.

Erika Steinberg, founder of marketing firm CMO2Go, who works with a number of smaller and midsize law firms, said firms in those segments generally have been staying the course, but are continuing to watch and monitor what others are doing.

“To me, ultimately, it seems that they're watching and they're listening, but they're not walking away from policies that they've had in place regarding DEI,” said Steinberg.

Steinberg noted that some smaller and midsize firms have taken more public stances, including signing on to an amicus brief in support of Perkins Coie challenging President Donald Trump’s executive order targeting the firm. "I think that larger law firms have been in the crosshairs more,” Steinberg added.

Inspiration

Some law firm language changes followed Trump’s executive orders targeting DEI programs in the public and private sectors. In response to one of those executive orders, the EEOC acting chair Andrea Lucas sent letters to 20 big firms requesting extensive information on employment practices related to hiring, recruiting, compensation and client DEI requirements.

The EEOC letters and other statements from the Trump administration have helped firms craft what language changes, if any, they make.

“I think the EEOC letters gave firms a pretty clear idea of what the administration deemed as not legal,” said Brunelle.

The Justice Department has also been guiding firms on what it views as questionable language and programs throughout the course of executive order litigation. In addition to targeting the words “under-represented,” Lawson argued at one point during a hearing in Perkins Coie's case that some elements of the Mansfield Rule certification process could be "problematic."

As firms continue to make decisions on how to address their DEI initiative and consider any changes, legal observers say that this issue has evolved through the years and will continue to.

“We were guiding clients to consider opportunities for doing this reframing before November 2024 because it was already under attack, and a political flash point,” said Curran, pointing to previous DEI lawsuits spearheaded by attorneys such as Edward Blum and current Trump adviser Stephen Miller.

Now, with the Trump administration targeting firms on a larger scale, the issue has become front and center for firms.

“This seems a much larger-scale attack, particularly when it's driven from the top leaders of the executive administration, and it also really sends a signal and empowers others to maybe bring similar suits,” said Santos. “But the diversity industry has always been changing, and it's always been evolving.”