Corporate governance and form must address global challenges

I care deeply about corporate form and governance. They are the scaffolding that allows companies to operate and scale. They are also critical to outcomes, determining the impact of corporate action on shareholders as well as critical stakeholders like employees, customers, suppliers, communities, and the natural environment.

One of the many reasons that scaffolding is so important is the failure of philanthropy. Philanthropic capital represents less than 0.25% of the capital markets. So, while it can certainly be used for good, relying heavily on philanthropy to solve the world’s problems—starting with climate change and inequality—is a fool’s errand. There is simply not enough capital to effect the change that we need. Therefore, I have long held that in the absence of (or alongside) effective government action, we need to look to the private sector. And if companies are willing to leave “market” terms behind (including those NVCA forms for private companies) and start using new corporate forms (including the Delaware public benefit corporation, perpetual purpose trust, and sidecar public charity), we just might be able to save our society and the planet.

I was a drafter of the California social purpose corporation, the first of the new corporate forms that have a dual fiduciary duty to both shareholders and a public benefit. Back in 2008, when we first introduced the form in California, in addition to the lawyers in the drafting group, there were several law professors who started focusing their academic study, as well as their clinical work, on new corporate forms and social enterprises. In addition to me, there were four other women. And they were all women of color.

So I am left wondering why—almost 20 years later—the experts being cited and consulted on corporate forms and governance are all white men?

I don’t have an answer, but I believe that there are several factors at play.

First, as has been analyzed in hundreds of books and articles, at critical points in their careers, women face greater pressures at home (particularly with children) and are forced to make difficult choices. Those choices are often detrimental to career advancement. For example, almost 20 years ago, I went part-time at MoFo and opted out of most evening and weekend business development opportunities with clients because I was already billing 10–12 hours a day and wanted to see my children. This translated into fewer opportunities to interact directly with clients. For me and others in similar situations, this necessary prioritization means that women do not have the same opportunities to build their practice and spread the word about what they are doing.

Second, men seem to be much better at trumpeting their successes. If they close a cool deal or help a company raise financing or go public, they make sure that everyone in their networks knows about it. Women? Attorneys of color? Not so much. Again, from my personal experience, I am often hesitant to share my credentials or accolades for fear of being judged as too pushy or boastful.

Third, I do believe there is a competency bias. As a younger partner, I often felt the need to bring a man to high-level meetings with me to communicate our advice (often to simply repeat the lines that I had given him). I am extremely lucky that one of my mentors at the firm (and one of the men that I asked to join me for those meetings), Rob Townsend, recommended that I get coaching to work on my own communication style so that I could engender greater confidence from clients and other attorneys. Many women and attorneys of color do not receive that support.

And finally, there is the judgment that we women feel—professionally and personally—when we “lean in” and try to do it all. Years ago, when I met former Supreme Court Justice Sandra Day O’Connor, she admonished me for trying to achieve work-life balance, explaining that there really was no such thing. She advised me that as long as I continued to enjoy my job, I needed to accept that life was going to be extremely messy with three young boys and I should just do my best. But the judgement that I felt from others (my failure to get involved in the PTA at school or turning down the lead for a large transaction) as well from myself, led me for years to feel that I was failing—as a lawyer, partner, mother, and friend.

The good news is that I decided to stick it out. And now with three teenage boys, I am happy to report that I am still a partner at MoFo, teaching at Berkeley Law and advising clients on corporate form and governance to move the needle on climate change, among other urgent matters. I would urge myself and all of us—male and female attorneys and clients—to create scaffolding in our own lives to make it a little easier to look for and listen to the women and attorneys of color who sometimes have greater depth of expertise and experience but have more difficulty having their voices heard.