Racial Diversity In Law- Why The Industry Standard Is Not Enough

When shining a light upon the recent uptick in diversity initiatives in the legal sector, the Financial Times stated, ‘The death of George Floyd… accelerated a shift that had long been discussed but failed to materialise’.

Such rhetoric is meant to show the legal world is reactive and has bound into action, rising to the challenges and questions the Black Lives Matter movement has laid before them. Instead, such rhetoric speaks to a larger business trend- that diversity only matters when it is fashionable when the world is watching and significant pressure to change.

Admittedly,  several firms have made significant efforts to diversify and create equity amongst their candidates in the past decade. Many more, however, have lain dormant; they have heard the cries of the oppressed, heard the woes of those seeking to enter a sector that does not represent them and have seen the blaring sirens of inequality in their candidate pools. Yet, they have hit snooze- content to ignore a problem that has not affected their pockets until now.

I am of the whole-hearted belief that these strides are necessary, a belief which with I think most reading this would concur. My main question, however, is, is this enough? Are we content to read yet another firm made their CVs blind or initiated reverse mentoring schemes in an ultimately passive attempt to change, or are we willing to ask for more, wish for better, and hope for better?

 The deaths of many such as George Floyd, Ahmaud Arbery and Breonna Taylor were shocking. They stirred the conversation, but where were these efforts with Trayvon Martin? Where was this energy when we fought for civil rights? To say George’s death accelerated a long-discussed shift is, in fact, deeply disturbing. Did it really take the death of one man on video to convince these firms to think, ‘Okay, maybe we should take diversity seriously’ when black and brown peoples have been systematically oppressed for 400+ years? If so, the legal sector is more out of touch than even they would care to admit.

In the first of this D&I cohort’s blog pieces, I will dissect the available data, illustrate why the industry standard is not enough, and the glaring issues with current practices. I do this not to shame firms or imply their management’s beliefs but instead to stir the conversation, point to those firms that really do care about the BAME community and signpost the places that I believe will value BAME aspiring lawyers, such as myself, the most.

The Figures

The following tables focus upon progression- looking at diversity in firms at various levels. For diversity and inclusion to be truly embedded within these spaces, there must be some concrete signs of progress and avenues available for people of colour to succeed. As an aspiring solicitor, there is no ultimate worth in devoting your labour to an organisation that will limit your progression based on your ethnicity.

There is also an obvious caveat to the following data: Magic circle firms get the most applicants and have untold resources to put into this. Rob Powell from Bristows confirmed as much on  Episode three of our Podcast. However, that’s not a criticism of them, as it still requires acknowledgement of issues to funnel resources into these avenues. Still, one could question whether the larger candidate pools and having more offices increases their statistics by just sheer luck.

(honourable mentions go to Simmons and Simmons, with a top rank equalling 12% diversity in partnership and Trowers and Hamlins with 39% in trainees. It will be fascinating to see how the latter develops as it is not currently reflected in the associate and partner numbers. The former appears to be more of an anomaly, as it did not bear out in the associate and trainee data.)

Name

Minority Ethnic Trainees

Minority Ethnic Associates

Minority Ethnic Partners

Clifford Chance

38%

26%

8%

Linklaters

31%

20%

10%

Allen & Overy

26%

19%

9%

HSF

26%

18%

5%

Hogan Lovells

19%

12%

<5%

Slaughter & May

21%

18%

6%

Watson Farley & Williams

<16%

21%

12%

BCLP

24%

11%

9%

Bird & Bird

16%

<11%

6%

The SRA claims that only 8% of partners at top firms are BAME. With the national demographic for BAME people being around 14%. This shows what many of us know that ethnic minorities are under-represented in the legal sector’s top bracket. The question has to be then, what are firms doing that isn’t working, and what can they do to change?

The Issue with Current Practices

Nepotism

Continued nepotist practices plague many top firms. Moni Mannings, a former partner as Olswang, recently stated that the legal profession is an ‘astonishingly white male… club’ where self and managerial interests are forced into alignment. ‘Difference itself is perceived as a risk’. Whilst stated in a particularly damning tone; I believe that Manning is speaking to more unconscious biases. Nepotism does not need to be overtly discriminatory to be discriminatory; a partner may pay close attention to a trainee that reminds them of themselves. It could be that they went to the same school or university. I could even be they both have an interest in golf or the theatre. It could even be as simple as ‘hey, that new guy looks like me but with a full head of hair!’. While not inherently evil, these elements perpetuate a cycle of nepotism. Those in power promote those that they like or have paid close attention to. When placing this lens over this data, the lack of progression is easier to understand. You may think, this is just standard business practice, of course, this happens- but is that justification for its continuance?

Firms such as BCLP are seeking to break this cycle by using a third party to allocate work- a step in the right direction. Segun Osuntokun, managing partner at BCLP, confirmed what the data suggests, that junior levels are not replicated later on, but at BCLP, the drop off is much less stark than its competitors. Firms should seek to replicate these steps.

Dentons has also formalised appointment and succession planning to consider diversity more rigorously, including formalising a necessary level for board appointments. As with quotas in general, as long as this system is meritocratic and seeks to highlight those that deserve it and bring equity, rather than fill a nomination for publicity, this is also a positive step.

Contextualised Applications

Many, if not all firms, used a contextualised application process. Of those I researched, big names such as DWF, Macfarlanes, Freshfields, BCLP and Eversheds Sutherland, to name a few, use contextualised application processes.  This system is sound, but should we settle for just this?

Considering someone’s economic background, educational history, and various difficulties that have led to their application isn’t doing them a favour; it’s just compassionate. That may be an emotion often shunned in business or thought to be incompatible, but if diversity and inclusion is to continue and grow then, this cannot be the case. Dentons’ partnership with Aspiring Solicitors provides contextualised recruitment (the minimum) but also talent maps BAME staff to help them progress in their career. This additional step of not just ignoring diversity but instead helping to promote equity actively should be the norm, and if we are to progress, we should expect better. Some, in this case, would argue ‘positive discrimination’, but such a sentiment is a fallacy. Providing an equal playing ground for all is equality- if you need to toss a ladder to those than have been placed in a hole in the ground from centuries of digging by those on top, this isn’t unfair; it’s precisely the opposite. 

Mentoring schemes

Firms such as Macfarlanes and Eversheds Sutherland have reverse mentoring schemes, and they are being adopted more widely across the board. These schemes are meant for senior management levels, in which they can learn from BAME members of staff about their experience and foster an appreciation of others’ struggles. This on paper is a good step, but there are issues with this.

 Firstly, it is iconoclastic. In our first talk on Neurodiversity, James from Freshfields highlighted such an issue, which resonated with me. Asking one person of colour about all BAME people’s experiences is like asking a pigeon what it’s like to be an eagle- it may know what it is to fly, but it’s not even comparable. A black person knows discrimination but doesn’t know the struggles that many of the Asian community have faced from the uptick in racial abuse from the pandemic. Further to this, it is not BAME people’s job to make others more accepting or understand. Can they not read many books on the topic, have external speakers, go through further training rather than getting those affected to repeat and relay instances of trauma? I understand that it may only fall upon accepting ears if it comes from those they know, but surely that is the problem of the listener, not the messenger.

Baker Mckenzie has established a fantastic active listening and learning campaign to encourage personal stories within a safe space, helping others learn and giving employees air in which to vent. Allen & Overy established GROW, an increasingly powerful social mobility initiative. Ashurst has employed training for staff to intervene safely in cases of sexual, racist and homophobic abuse as a compulsory measure- a positive step to ensure the workplace and beyond are safe for all. These active measures, rather than the passivity of merely listening, will do much more than reverse mentoring.

Positive Steps

Before I conclude, I wish to highlight unabashedly positive steps that are being made in the space, without caveats, that may be lesser-known.

CMS is using technology to innovate Diversity and Inclusion practices. By eradicating bias in work distribution, active mentoring, flexible working policies, resilience training, and more, they use technology to remove the unconscious bias limiting the push for diversity elsewhere.

Baker McKenzie and Hogan Lovells are also putting their money where their mouth is using billable targets. At Baker Mckenzie, associates are credited with up to 125 billable hours to spend on activities that promote D&I, whilst at Hogan Lovells, the firm has pledged 65,000 Pro-Bono hours until 2023 to address systemic injustice against POCs and even instructed the UN on racism within the workplace and examining police accountability and safeguards for human rights.

Conclusion

The industry standard is not enough. It is not enough to tweet, set up a section on your website or have a BAME network- business decisions need to be made to cut out racism. There is no use setting quotas or making bold statements if nothing active is done to back it up. I think that’s what I want to hone it on- activeness. Those firms that excel beyond their means are not just providing lip service to retain publicity; they are placing significant resources of both time and effort to take matters seriously.

 On the Podcast, as mentioned earlier, Vin Bange, a partner at Taylor Wessing, highlighted something important- lip service will come out in the wash. We will see what is real and what is fake in the coming years, and a chasm could well emerge between the firms that hope they are doing enough and those that are.

Time will tell, but for most aspiring solicitors, it feels as if we don’t have the time to wait. For those genuinely invested in devoting their time to those that value them and their allies equally, I hope this piece signposts to, even in the smallest ways, which places you should spend those extra few hours honing your training contract applications for!   

Thank you for reading, and we hope to welcome you back again for our next piece.