A step too far?

The lack of diversity at the biggest law firms was recently described as ‘a national scandal’ by Legal Services Board chief executive Matthew Hill. In large commercial law firms, efforts to measure and improve progress to partnership – still a glittering prize in the legal profession – have focused on race, gender and socio-economic background. For these firms, Hill’s sentiment appears borne out by the numbers (see box, below). But what remain up for discussion are the remedies.

In theory, US and City firms are well placed to respond. Unlike, say, the criminal bar, they can draw on a deep well of financial resources and management experience to address the massive task of shaking up a rigidly hierarchical profession which has traditionally attracted a disproportionate number of privately educated offspring of the professional classes.

The intake of trainees from a mix of racial, gender and socio-economic backgrounds has improved in recent years through pioneering schemes such as partnership with legal diversity platform Aspiring Solicitors.

But the legal profession still faces huge challenges in retaining its diverse cohort. Put simply, too few make it through to partnership.

The profession received special attention in Alan Milburn’s 2013 report for the Social Mobility and Child Poverty Commission, which showed that social mobility in the law had actually declined. Since 2017, the requirement for larger firms to collect and publish gender pay gap figures demonstrated huge disparities, in large part attributable to the small proportion of women partners. A mean gap of 60% is common. On race, the Black Solicitors Network has been pushing for change for 26 years, collecting data and promoting best practice to support the goal of equality.

Singular achievement

Those who achieve partnership and then leadership positions find they are role models who, if they choose to, can speak with authority on their own experience of progression and on the action that the profession needs to take to diversify at the top.

Trevor Sterling is a case in point. Sterling left his underperforming comprehensive school in the early 1980s. His careers adviser suggested three career options: tennis racket stringer, warehouseman, or outdoor clerk for a trade union law firm in Wimbledon. He took the latter. Working every weekend to qualify and taking day releases from work on reduced pay, he became a solicitor aged 25 and made headlines when he became partner at 28. The first Black senior partner of a top-100 UK law firm, today he combines the senior partner role with that of head of major trauma at Moore Barlow and remains the only Black senior partner in a top-100 law firm in the UK. That number will swell to two in January when Segun Osuntokun takes up the role of global senior partner at Bryan Cave Leighton Paisner.

Having broken ceilings of race and social mobility, Sterling identifies the culture of the legal profession – as it presents in top commercial firms – as a problem. ‘To leverage the benefits of diversity, you have to be your authentic self,’ he explains. ‘As a diverse lawyer it is easy to become a chameleon, to try to imitate other people to fit in. This is exhausting, and results in the pattern we see of people moving from a City to a mid-size then to a small firm to try to find a place where they feel more comfortable.’

Penelope Warne is senior partner and chair of the UK board at CMS, having worked at the firm since 1993. A role model for many women who aspire to top-tier status in the law, Warne combines her management responsibilities with being head of one of the most profitable teams at the firm: energy and climate change.

Warne is an enthusiastic supporter of the firm’s myriad diversity initiatives, such as its Diversity Week and its plethora of networks – which are wide-ranging and cover faith, disability, mental health, LGBTQ+ , ethnicity and more. The firm offers apprenticeships and scholarships to help those from disadvantaged backgrounds to enter the law.

While proud of what CMS has achieved, Warne is also clear-sighted about how much work remains to be done in the legal profession. ‘There has been much success in increasing diversity at the level of the trainee intake, but this has not yet filtered through to partnership level,’ she says. ‘In terms of encouraging more ethnically diverse partners, I feel the legal profession is at a similar stage as it was a few years ago with women partners.’ At CMS 36% of the senior cohort of partners are women. ‘We have now created a strong pipeline of ethnically diverse lawyers and will support them all the way through their careers,’ Warne adds.

Working on retention

Charlotte Yirrell is senior diversity and inclusion manager for the US, UK and EMEA at Herbert Smith Freehills (HSF). Like Sterling, she believes attention must be paid to law firm ‘culture’. ‘There is no simple answer, but it is imperative to create a culture within the firm that supports the retention and progress of diverse lawyers,’ she says. ‘We are not talking about a homogeneous group of individuals. Our initiatives have to be wide-ranging and engage everyone, from the C-suite downwards.’

One initiative that both Yirrell and Warne cite as being particularly effective is the introduction of reverse mentoring schemes. Yirrell says: ‘Reverse mentoring not only gives senior leaders insights into the different perspectives of junior diverse lawyers at the firm and their experience, but is also beneficial in allowing junior lawyers access to senior decision-makers, with the opportunity to build networks.’ Senior leaders at HSF are automatically enrolled into the reverse mentoring scheme.

Aspiring Solicitors works with firms on schemes to aid retention as well as trainee recruitment. It recently awarded Mayer Brown its ‘Overall Best Retention of Diverse Talent 2023’ award for its high retention of diverse trainees. The firm also won the ‘Best Diversity Initiative 2023’ award for its Accelerate coaching programme, which has assisted 30 trainees since October 2021, with each trainee receiving six hours of coaching in the run-up to, during and beyond their qualification. Trainees were given a space in which they could share their experiences from an inclusion perspective. They reported that the initiative led to increased confidence, higher levels of motivation, enhanced focus on career development and improved well-being. Mayer Brown was also the first City law firm to introduce an alternative route to qualification.

‘Although it is a complex picture, culture and opportunity are key to retention. The diverse lawyers have to want to stay and the firm has to want to keep them,’ says Chris White, founder of Aspiring Solicitors. ‘Law firms have to continue to invest in their diverse employees and make that financial commitment.’

So far Aspiring Solicitors has met with success in assisting firms with increasing the diversity of their trainee intakes and fostered the creation of one partner. White is hopeful that in a few years there will be many more of his ‘alumni’ in partnerships.

Left behind

With City law firms so eager to encourage diversity within their ranks, why do diverse lawyers leave such successful and lucrative careers before reaching the golden prize of partnership?

For women, the answer is clear. The responsibility of partnership and the relentless pace of City-firm culture has not always sat well with obligations of parenthood and other caring responsibilities. The shift to flexible working in the past few years should have assisted female advancement in this respect. SRA statistics show an uplift in the numbers of female partners, although not a dramatic one. In the period between 2019 and 2021, the proportion of female partners overall rose from 34% to 35%.

For minority ethnic lawyers and those from disadvantaged social backgrounds the reasons are more complex, but the culture of the workplace and whether you feel you belong there plays a huge part.

The SRA statistics provide some explanation of this trend: 12% of partners in all firms are Asian, as are 12% of solicitors; 3% of partners are Black, as are 3% of solicitors.

But turning to firm breakdown, the picture shifts: 7% of partners in the largest firms with 50+ partners, and 9% in firms with 10 to 50 partners, are from a Black, Asian and minority ethnic background, compared with 36% of partners in one-partner firms, and 23% of partners in firms with two to five partners. The figures support Sterling’s observation on the way lawyers in this group respond to work culture, eventually settling in smaller firms.

A seat at the top table

Law firms are hierarchical organisations. To create meaningful change the diversity equality and inclusion (DEI) team has to have a direct line to leadership and a presence in the C-suite rather than being placed in a silo. The aim should be for the DEI angle to be considered in every strategic management decision made.

Yirrell explains: ‘At HSF the managing partners for each practice group are responsible for implementing our DEI initiatives and held accountable… DEI is considered part of everyone’s day job.’

But this is far from the case everywhere. ‘Not many firms employ DEI specialists, or have a DEI manager,’ says White. ‘Too often the role is bundled up with pro bono and CSR. It is important that DEI is a stand-alone post.’

Data and nuance

The SRA requires the reporting of diversity data from all regulated law firms every two years. Gender pay gap reporting is also required by the government for all enterprises with over 250 employees. This data presents a valuable snapshot of where a firm sits in relation to its diversity objectives and creates a benchmark to work from year on year. In addition to mandatory reporting, some firms – HSF is one – also choose to report on their ethnicity pay gap. Inclusive policies and procedures also help to create the right culture on the ground.

‘Targets are not quotas,’ Yirrell explains. ‘They are more of an aid to record where we are and to set goals and objectives… It’s all the other work that happens to reach those targets that makes the difference.’

One factor that the data does not delineate is the nuances of diversity. For example, recruiting privately educated Oxbridge graduates of colour is not the same as providing opportunities to candidates of colour from socially deprived backgrounds.

Are clients demanding?

That diverse teams produce the best outcomes to complex problems has been the conclusion of extensive academic business research, supported by data from leading consultancies.

As Sterling points out, one benefit that he brings to his practice is that he is by experience a problem-solver first, and a lawyer second. For many who follow the traditional path into law through academia, it is the other way around. Fresh perspectives on business and the practice of law are invaluable.

Many of the clients which instruct City and US firms now include the requirement for diverse teams in their pitch criteria.

Justin Farrance, who occupies an unusual niche as a DEI ambassador at Allen & Overy, explains: ‘In our experience clients are keen to collaborate to share our pooled knowledge of how to improve DEI – not only in the context of deals and pitches, but through the staging of shared events.’ The joint client/lawyer DEI take has produced results for Ashurst and Societie Generale, whose joint mentoring scheme received rave reviews from those who attended.

A united front between business and law makes sense. But it should also be acknowledged that anecdotal evidence shows that some clients’ DEI requirements in pitch documents are not always followed through.  

Another potential pitfall law firms must guard against is any bias that steers diverse practitioners towards a certain kind of work. ‘Work can be allocated from a stereotypical perspective, which does not help retention,’ says Sterling.

Here, there is a new tool to assist firms – artificial intelligence. Some US firms have created programmes that monitor patterns of work allocation. 

Sincerity

City firms are hopeful that in years to come their improved record with trainee intakes will be replicated at partner level.

The upper tiers of the UK legal market are investing heavily in promoting DEI, with firms exploring new initiatives to attract, retain and foster diverse lawyers. In recent years the DEI function within leading firms has increased in stature if not size, and is now considered essential. ‘When I first started working in DEI it felt like a sales job, I was constantly having to explain what I did and why it was important,’ Yirrell reflects. ‘That has changed. Investing in DEI is now an integral part of law firm strategy and management.’

Forward five to 10 years and the data will give an insight into whether such investment has been successful. Satisfactorily answering the question, ‘what works?’ may show the way on how to improve law’s record on equality and inclusion for professionals with other characteristics that are under-represented at law’s top table. To see such progress, Sterling concludes, legal employers ‘must invest in the solutions’.

 

Katharine Freeland is a freelance journalist