Feature

posted 15 May 2007 in Volume 10 Issue 1

All the difference…

As an industry traditionally dominated by white males, the legal profession has had to make big strides when it comes to diversity. Clients increasingly want evidence of a commitment, and now even the government is taking a keen interest in how firms are rising to the challenge.

By Tina Lofthouse

The legal industry has something of an image problem when it comes to diversity. For many years, partnership at most firms has been the preserve of men – the majority
of whom are white and ‘preferably’ from Oxbridge.

But things are changing. Clients have made it an issue. They want the firms they instruct to reflect their own policies on diversity. Law firms are also realising that in the battle for the brightest stars, it makes sense to recruit from a wider talent pool.

Greater efforts are being made to attract people from ethnic minorities, there is more awareness of lesbian, gay, and bisexual (LGB) issues, and firms are looking at how to retain
more women as they move up the career ladder.

However, the government is still concerned over the rate of progress, which prompted legal services minister Bridget Prentice to warn that the legal profession should be representative of the people it serves. In November 2005, Prentice wrote to the top 100 law firms and 30 chambers asking that they make diversity data public. By the end of September 2006, 37 firms and six chambers had responded. In December, she challenged more firms to publish their equality and diversity figures. To date, the number that has published figures still stands at 37.

For some, the request presents problems. Herbert Smith was among one of the first to respond to the call, but the firm’s chief operating officer Norman Green says it is unfair to read anything into the fact that others were more reluctant.

“Some law firms have not, historically, monitored their statistics, and therefore could have had difficulty in actually collating the information,” he says. “And realistically I’m sure there were some questions about how the statistics were going to be used and interpreted, and concern they might undermine much of the good work that is happening in many law firms at the moment.”

Green also stresses that it isn’t just a case of getting the numbers right. “They’re useful from a benchmarking perspective, but diversity is more about changing the culture than achieving the ‘correct’ quota of people from any section of our society.”

There is a danger that if too much emphasis is put on the statistics it could become nothing more than a tick-box exercise. Many firms will not set themselves targets on diversity for that reason. Jill King, director of human resources at Linklaters, says: “It is a risk and we’ve always been very clear that we won’t ever set ourselves targets – we’re not into positive discrimination. We’re not into lip service. What we want to do is to have access to the broadest and deepest talent pool and commercially that is very important to us.”

Reed Smith Richard Butler’s UK managing partner Tim Foster says firms should, however, be prepared to divulge their statistics: “Some firms will understandably be nervous but everyone realises that making progress with diversity is tough and complicated. If you’re prepared to stand up and say here’s where we are and we want to do more, it is a far better sign that you will make some progress than if you’re not prepared to be open about it.”

There is no hard and fast rule about what data is collected. Linklaters’ King notes, for instance, that the firm doesn’t monitor gay and lesbian issues. “It raises issues as we are a global firm and operate on an integrated basis but there are certain countries where we can’t even ask for those sorts of statistics,” she explains.

Some firms now have sections of their websites dedicated to their diversity policies and statistics. Taking a whistle-stop tour of some law firms’ websites showed the following:

Allen & Overy in the UK provides statistics for male, female, part-time, minority ethnic and non-minority ethnic staff, covering partners, associates, other fee-earners and support staff. Partners at the firm are 80 per cent male, 90 per cent non-minority ethnic. The firm says that while they encourage people to formally record if they are registered disabled, this happens infrequently;
Slaughter and May offers a similar monitoring pattern in the UK. Eighty-four per cent of its partners are male, and 94 per cent are non-minority ethnic. It is also looking at how it records disability within the firm;
Olswang’s diversity data is very similar, with the inclusion of a category for declared disability. Seventy-nine per cent of its partners are male, and 99 per cent are non-minority ethnic;
Simmons & Simmons, meanwhile, has a more comprehensive range of statistics online, including a breakdown of age and gender, ethnicity, nationality, religion or belief, disability and sexual orientation. While it is certainly comprehensive, the firm does face problems gathering the data. For example, over three per cent decline to disclose their religion or beliefs, and the firm is still awaiting responses from over 45 per cent of staff on this point.

Whether or not publishing these statistics will actually help the government in its aim is open to debate. What the statistics do, however, is reinforce what people in the industry already know – that there is a problem, especially when it comes to retaining women. What the figures won’t do is provide a solution to what is a complex issue.

Retaining women

Equality aside, there is no escaping the fact that women still hold the lion’s share of family responsibilities. Offering flexible-working patterns
goes some way to helping, but these can be tough to implement – perhaps even impractical – in some sectors, given client demands. This is only part of the story though, as several firms have realised.

Linklaters, for instance, has a mentoring and coaching scheme, both pre and post-maternity leave. “This is designed to help women work through the transition, particularly on returning to work where there can be a confidence dip and when they are juggling what are often conflicting demands in their work and home lives,” King explains.

The firm also monitors bonus allocations and appraisal ratings by gender, which King says has helped raise partner awareness of any unconscious bias that may be at play. Having such data available really helps them test and challenge themselves, and one another, to be entirely fair, she believes. In Sweden, the firm has even done some analysis of work allocation looking at whether male and female associates are getting proportionate levels of access to the best deals.

Workshops have also been introduced by some firms. Reed Smith, for example, has a women’s career-advancement initiative designed to increase representation of women at partnership level. It also holds networking events between women from the firm and female clients
and contacts.

But Lovita Tandy, chairman of King & Spalding’s diversity committee, points out that the statistics themselves are a deterrent to women: “The numbers lead many to conclude that there is a glass ceiling in large law firms and they decide to move on to other legal careers, which appear to provide more room for continued career growth.”

A significant percentage of women opt out of the profession altogether, either to raise families or pursue other careers. Tandy says that providing reduced hours, flexible hours, and day care will help firms attract and retain women attorneys in the short term. Longer term, firms must concentrate
on their culture. “Firms will have to prove they’ve created an environment where it is possible for women attorneys to take advantage of these programmes and continue to succeed and advance in the firm hierarchy,” Tandy adds.

Looking outside Oxbridge

When it comes to increasing the number of people from ethnic minorities, again the issue is a complex one. Broadening the recruitment criteria and encouraging firms to look further than the doors of the most ‘prestigious’ universities for talent is one possible solution.

In May 2006 the Commission for Racial Equality said more should be done to nurture talent that could enter the legal profession via less traditional routes. Trevor Phillips pointed out that, anecdotally, paralegals are a more diverse sector than solicitors, and many ethnic minorities, who might not have the opportunity to study law at Oxbridge, might consider a paralegal career as a way of getting a foot in the door. The Department for Constitutional Affairs also hoped to raise awareness about alternative paths into the law and brought out its ‘Routes into the Legal Profession’ booklet.

Reed Smith’s Tim Foster agrees that firms need to take a broader view when it comes to their recruitment criteria. “What some firms are doing is cutting out people from low socio-economic backgrounds who may be particularly bright and driven but who won’t necessarily get to one of the better universities.”

However, even once ethnic minorities have been attracted into the industry, there is the issue of retaining them and seeing them progress up the ladder. A 2006 Diversity League Table survey found only three per cent of partners in the UK’s top 100 law firms come from ethnic minorities. Some say it is only a matter of time and now inroads have been made we are likely to see more become partners. But others in the industry hold the view that there are firms that ‘talk the talk’ when it comes to diversity, but fail to increase diversity in practice.

There is also a lack of role models at the top, says Lovita Tandy who was the first African-American female to make partner at King & Spalding.

She explains some of the barriers. “In addition to dealing with the factors that chip away at the attrition rates for women attorneys, women of colour often find it more difficult to find mentors, role models and develop genuine friendships in law firms. The job itself places such high demands on your time, that it is exceedingly difficult to succeed if you don’t have these types of support systems built into the work environment,” she says.

Shoosmiths, meanwhile, was the first law firm to achieve Committed2Equality accreditation, recognising achievements in terms of commitment; training; monitoring; knowledge; recruitment; and HR processes. It also ranked top for diversity across all classifications, according to the survey by the Black Solicitors Network.

But although Shoosmiths is making good progress, there are only three partners out of 83 from ethnic minorities. Rita Tappia, professional recruitment manager, says that the firm is working to open up more opportunities for all employees at all levels. Networking with ethnic-minority organisations and encouraging applications from all sectors of the community by having a presence in BEM (Black and Ethnic Minorities) media is key.

Social diversity initiatives are also now underway to attract more people from less privileged backgrounds; one being an arrangement between the College of Law and the Sutton Trust. A report by the Trust found that three out of four top judges, more than two thirds of top barristers and over half the partners at leading law firms had been educated at private schools, which now account for just seven per cent of the school population.

Wide-ranging approach

It is indicative of the wider view being taken on diversity issues in the UK. There is a perception the UK has been somewhat slower than the US to tackle diversity issues, but there is a greater emphasis on inclusiveness across a much broader spectrum.

“There has been, I think, a greater awareness of diversity issues in the US for a longer period of time than in the UK, but the focus has been largely on gender and ethnicity. It has been supported by government-set quotas and targets, and positive discrimination has played a part in its development,” says Herbert Smith’s Green.

He believes that although the development of the diversity agenda has been slower to gather pace in the UK, the focus has been wider. “Diversity here has been driven by a combination of recognising that certain groups within our society do not get an opportunity to achieve their full potential and a realisation that to maximise success, we need to access the top talent wherever it may be,” he adds.

Tandy agrees that the UK has been taking a wider view on diversity and that UK firms appear to devote far more resources to ethnic and religious minority groups than firms in the US.

“I think there are some definite advantages to this broader approach. It helps people focus on one of the main goals of every diversity initiative – inclusiveness. One of the keys to success in this work is creating an environment where everyone feels welcomed and perceives that they have an equal opportunity to succeed. Most US law firms are becoming more explicit about this goal as well.”

Commitment to LGB

LGB issues are also increasingly on the agenda. Several law firms have signed up to gay-equality organisation Stonewall’s Diversity Champions programme, for example, although chair David Isaac would like to see more.

Isaac, who is also a partner at Pinsent Masons, explains that the scheme promotes employment best practice, with participants attending regular training and awareness programmes. Pinsent Masons itself goes one step further. Not only is the firm ensuring its own house is in order on diversity, but it is demanding the same of its suppliers.

Given it is tough for them to get such sensitive data, however, it is hard to tell how important the LGB issue should be for law firms. Isaac says that although he has never experienced prejudice, some do. Interviews undertaken by the Law Society for its report into the issue claimed some respondents talked of a “heightened sense of heterosexual machismo” displayed by some male staff at City firms, and most participants acknowledged they were reluctant to come out at work for fear it would seriously hinder their career progression.

Isaac says diversity initiatives are important to make everyone feel valued, whether or not they choose to reveal their sexuality. “It’s about people being themselves and feeling valued. People from all different diversity strands make an enormous contribution and represent a significant proportion of the population. If those people feel valued and nurtured, their contribution will be enhanced.”

The business case

In any case, if firms don’t take the issues seriously, they run the risk of losing clients who do put diversity high on their agendas. JP Morgan, for example, has invited its panel of law firms to a seminar with Stonewall, with the bank seeking serious commitment to the issues from the firms it instructs.

Sara Lee Corporation is one of Reed Smith’s main clients and diversity is one of its core values – so much so that, under a programme now in its fifth year, it actually grades its law firms in tiers according to how well they are doing on diversity along with high quality of service, and will give preferred consideration to firms in the higher tiers when seeking outside legal assistance. A recent re-evaluation has again put Reed Smith in the top tier, along with one other firm. “It’s not just clients saying diversity is important; in the US, it clearly informs their decisions and firms should expect to see this a lot more in the UK,” says Foster.

Meanwhile, all firms are realising that having access to a wide range of skills, views and ideas is crucial. “It is a competitive market out there. And we want people with the best skills irrespective of their gender, sexuality, race or religion. It is the only way we will succeed,” says Isaac.