The publication of magic circle firm Linklaters’ diversity statistics last week was made all the more interesting by the fact that the Legal Services Board has just laid down in statutory guidance its expectation that all firms will need to be publishing similar information by 2012.

Firms and chambers will have to publish statistical info on the age, ethnicity, disabilities, and caring responsibilities of their staff. The only areas where data will be collected but not published (initially, at least) will be sexual orientation, religion/belief and gender reassignment.

Linklaters is clearly ahead of the game in this, and the results of its own staff survey are more or less what one might expect: 78% of UK partners are male (but only 51% of associates, giving the optimist in me hope that more women may make it through the ranks, eventually); 89% are white; 39% went to a non-fee-paying school. It’s not what you’d call fantastically diverse, but it will certainly not be the worst of the City set.

What is possibly more interesting than the stats themselves, though, is the column showing the percentage of respondents who ‘do not wish to disclose’ in each area. As you might expect, some of the highest figures here were in the category of sexual orientation.

At partner level, 3% of men and 1% of women at the firm said they were gay, while 9% chose not to reveal the information. While not all of the 9% who chose to keep quiet will necessarily be gay – some heterosexual respondents may simply feel the question is too intrusive – it does seem to imply that there are some gay solicitors in the firm who feel it is wiser to keep their sexuality to themselves, even in an anonymous survey.

And surprisingly (or not), it seems the same may apply to the issue of flexible working. While 4% of partners said they worked flexibly, 7% declined to answer the question. At the lower end, no trainees said they worked flexibly, but 8% did not want to say. Is this a taboo subject as well?

Linklaters undoubtedly adopts a progressive approach towards trying to increase diversity within the firm. But if, even in a firm like this, a significant minority of employees are reluctant to answer certain questions, how much more of a problem will that be at other, less progressive firms? Solicitors quite rightly cannot be compelled to answer the questions. But if they don’t, then it becomes impossible to build up an accurate picture of the makeup of the profession, which is essential if diversity issues are to be tackled effectively.

It means that firms could end up forced to spend time and resources compiling the data that the LSB demands, but the end product will be a set of misleading figures, because so many will have refused to answer the questions, or not felt they could answer truthfully.

This is exacerbated by the way that the LSB seems to want the data to be captured. At a recent meeting of the Bar Standards Board, the LSB suggested that the information should be collected by firms and chambers themselves.

But in a firm where it is taboo to be gay, solicitors are much more likely to decline to answer, or simply lie, if the data is collected directly by their employer, even if it is given anonymously. And in small chambers with just a few barristers, anonymity becomes impossible.

A better alternative would be for data to be collected at regulator level, for example by the Solicitors Regulation Authority or BSB. The LSB’s statutory guidance does appear to allow for this, and it would surely be a more sensible approach. The cost could be charged back to firms.

If the results will be used to make essential decisions on how best to open up the profession, let’s make sure those choices are based on honest and reliable answers, not a false picture.

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