Roundtable: diversity

Half a century has passed since the US civil rights movement’s seminal victories; 22 years have elapsed since the end of apartheid in South Africa; and today our schoolchildren learn about once-legal advertisements that read ‘No Irish, Blacks or Dogs’.

Yet race remains an urgent topic in modern Britain – and even more so following a reported spike in hate crimes following last month’s shock Brexit vote.

Though state-permitted race discrimination is a thing of the past, unequal outcomes continue to anger and perplex, not least in the legal services sector.

We know, for example, that the judiciary and law firm partnerships remain stubbornly unrepresentative. This is a debate that lights up in the law because fairness – or accusations of unfairness – cut close to the professional identity of lawyers. Both exclusion and accusations of discrimination inevitably wound when they find a target.

Given the pivotal role of the judiciary, it is appropriate that the discussion begins with reflections on the composition of the bench. District Judge Tan Ikram recognises ‘slow progress, [and] not as much progress as many of us want, especially in the higher judiciaries… but there is progress’.

Initiatives to support the emergence of a more diverse judiciary have produced results, Ikram adds. He points to a Law Society-funded programme that helps candidates understand the application process and the workings of the Judicial Appointments Commission. ‘It’s not just talk,’ he insists. ‘We can point to people who’ve been appointed as a result of going on that course.’

 The judiciary itself is showing resolve here too, Ikram adds: ‘We are committed to doing what we can within the process to move towards a diverse judiciary. I can tell you that the lord chief justice himself wants to see progress.’

Sundeep Bhatia, a member of the Law Society Council, asks about the JAC’s use of positive discrimination. Its declared intention is that if two candidates indistinguishable on merit apply for the same appointment, the JAC should decide the appointment in favour of a candidate who is from an under-represented group. Does that really happen? ‘Yes, it does,’ Ikram says, though he notes that the number of instances is in ‘single figures’.

Dele Ogun of Akin Palmer, though, believes a more serious commitment could be made, and compares the UK unfavourably with the US. ‘In the US, you have Justice Clarence Thomas, who made it all the way to the Supreme Court,’ Ogun points out. ‘Here we’re talking about county courts. If the American system, an Anglo-Saxon jurisdiction, has managed to progress minority lawyers through [to] their senior courts, all the way to the apex court, and here we’re still at the county court, [then] I don’t see the urgency manifesting itself clearly.’

Ogun adds: ‘I was called to the bar in 1985. That’s a long time ago and yet the changes that we’ve been waiting for since 1985 and earlier are still not coming through. I was in an employment tribunal recently. I almost fell over, seeing a black judge. It’s a problem that needs to be consciously addressed.  It can’t evolve because the evolution is not dealing with the problem.’

Joy Douglas of Hillary Cooper Law asserts that the UK has a ‘feudal system’, whereas the US has developed as a more instinctively ‘meritocratic’ society. ‘The issue isn’t simply about a failure to evolve,’ she observes, ‘but rather a deeply rooted mentality; an unconscious bias in society with regard to minority ethnic groups.’

Organised groups like the US’s National Association for the Advancement of Colored People had a key role to play in ‘vocalising the needs of people from ethnic minority groups’. Douglas points out: ‘We don’t have a vocal cohesive body here that will advocate for people in the profession in a similar way.’

The Law Society’s Pearl Moses says that in the absence of more tangible progress, deciding to ‘interrupt the system’ through measures such as quotas is the only way to remove obstacles to change. She is critical of an approach that contends it is adequate to wait ‘until [we] organically get to a place where three or four people somehow survive every adversity and make it to the top’.

Good black, Asian and minority ethnic (BAME) lawyers ‘are there’ to be appointed, several insist – both to the judiciary and more generally. And, Ikram says, ‘in relation to recent appointments, you are now starting to see change. At the moment, it’s just a fact that there are not large numbers of judicial appointments, because of the times we’re living in. You can’t create massive change if there isn’t a large number of judges being appointed’.

A wider problem

‘It’s not just the judiciary,’ Law Society Council member Stephanie Boyce interjects, moving the discussion forward: ‘It’s the legal profession – the entire legal profession – [that has a] glass ceiling.’

Funke Abimbola, Roche’s general counsel UK and Ireland, says that changing that situation requires concerted action. ‘Whether it’s quotas, targets or positive discrimination, it’s preferring the underdog, in [a] scenario over someone else, all things being equal,’ she argues. ‘It is absolutely impossible to drive through societal change without that.’

Such ideas are treated as controversial, she admits. All the more so, the Law Society’s Ethnic Minority Lawyers Division chair Caroline Newman notes, following the vote to leave the EU. This has brought ‘racism to the surface in society’, she says.

‘I do worry for the youngsters,’ BLD Foundation and BLD Lawyers founder Debo Nwauzu adds. ‘The changes [of Brexit]are going to be really huge.’

‘You feel a change already,’ Linklaters’ Paulette Mastin notes. ‘It may affect some more than others, but it is absolutely imperative that we… try to encourage this attitude of fairness… ensuring that the cultural mindset remains on a trajectory for inclusion so that, in terms of recruitment, retention and promotion practices, we are directly [confronting] unfair assumptions, unfair stereotypes and unfair biases.’

Open racism, several attendees note, is a problem that is not limited to what one might traditionally bracket as BAME people. Eastern Europeans living in the UK are also being targeted, for example. And, arguing for ‘intersectionality’, common cause is also recognised with a drive for gender and LGBT equality.

Entry into the legal profession influences all that comes after, Douglas notes, adding that social mobility is ‘the elephant in the room’. Put simply, a more balanced intake does not automatically translate into progress in the hierarchy. After a successful City career, Douglas set up her own firm, so her point of view is telling: ‘The higher up you go, you notice a certain demographic – and that demographic tends to be Oxbridge, Russell Group, private school.’

A lot of profiling occurs, she suggests, drawing on her experience of working in the City: ‘I don’t have an African name, and having spoken to me on the phone, [boards] certainly weren’t expecting that I was black.’ When she entered a room jaws would drop, she says, before ways were found to establish common ground and ‘camaraderie’. That such preconceptions still obtain in 2016 is in itself jaw-dropping, one might argue.

The underlying problem, of course, can be getting into the room in the first place. Once you are in, as Linklaters’ Mastin relates, it can in one sense be rewarding to confound those who would pigeonhole you: ‘I actually find it the most wonderful challenge to walk into a room, be silent and be profiled negatively, and totally debunk all those stereotypes,’ she says. ‘[This] is what we encourage our youngsters to do.’

Entry-level experience is not everything but it counts for a lot, Bhatia says. He describes the training contract as giving rise to ‘the golden apple syndrome’.

‘The fact is,’ he adds, ‘the “golden apple” is a training contract. What’s being said is if you don’t get entry to [certain schools and universities] then you don’t get the golden apple. If you don’t get the golden apple, you don’t find an easy way into the legal profession. So… at the bottom, people end up being paralegals and not being able to qualify as solicitors.’

SRA proposals for a Solicitors Qualifying Exam (SQE) are intended to offer alternative ways into the legal profession. But for Moses this ‘sidesteps the issue… almost providing a “B-stream” entry’.

Roshni Patel, legal assistant at Eversheds and a member of the Hindu Lawyers Association, maintains that alternative routes to qualification are crucial: ‘I think it’s quite difficult, coming out of law school. A lot of people don’t know there are different routes to becoming a solicitor. It’s not only the training contract that qualifies you to become a solicitor. I think it’s really important for people to know that.’

Barclays lawyer Stephanie Amoah obtained a place on a BLD Foundation scheme to gain extra support and experience. ‘I think that there is unconscious bias, and I think a lot of the firms and practices need to have some training in this,’ she reflects. Good work on this at Barclays includes unconscious bias training for people involved in interviewing. ‘I’m helping out with the Barclays Legal Work Experience Weeks,’ she adds.

That scheme helps aspiring lawyers to ‘get through the first hurdle, to get your foot in the door, which is [how] I got into Barclays in the first place. I think that’s really important. From there, [it’s up to] the students themselves to work really hard to make sure they make [an] impression.’

Not everyone would accept there is an automatic responsibility to assist others by dint of being a successful ‘representative’ of any group. But it is a role Amoah keenly embraces: ‘When I do get there, I can still help others around me and lift them up as well and, hopefully, train them to do the same for others.’

At City firm Zaiwalla, partner Pavani Reddy relates, its founder’s experience remains front-of-mind and informs the way the firm is run. ‘We started about 35 years ago,’ Reddy says. ‘One of our challenges, from what I hear from my senior partner, who set up this firm, was that entering a big law firm in the City and doing commercial law was hard in those days. Nobody would take you [and] even if they did, what would happen was that there was no upward movement [within] the profession.’ A multicultural firm, she notes, has an advantage in competing for the international work that is her firm’s focus.

‘We’re 20 people, but you have solicitors with about seven or eight different origins,’ Reddy notes. That gives the firm an edge when handling instructions that involve matters in ‘Africa and India, China and the Middle East’.

The profession, Ogun says, has been slow to realise the advantage that a more internationally connected intake can bring. Reflecting on his own formative experiences, he remembers: ‘My full name [is] Akindele Oguntimoju. The CV goes out, Akindele Oguntimoju, but, as has been recognised, this [name] is not from Shropshire. The CV went in the bin.’

He believes that abbreviating his name actually aided his progression – a depressing admission – but he does identify recent progress: ‘Now you do see partners with surnames more complicated than my own who are making it through.’

As Bhatia notes, it is in the interests of firms and corporate legal departments to eliminate artificial and in some cases simply absurd barriers: ‘Because of our backgrounds, because of our connections, because of, in some cases, our linguistic abilities or cultural access, we may have advantages which would be of use to firms in making those connections and in going forward and expanding. Maybe that’s something which we need to think about [harnessing] in the days, months and years post-Brexit.’

There will increasingly be a straightforward business imperative for doing so too, given the axiom that ‘the client is king’, Citi in-house lawyer Sharon Blackman explains. Diversity matters to her employer when it decides who to instruct. Addressing law firms directly, Blackman says: ‘We’re interested to know what your commitment is – your genuine commitment to hiring, retaining and promoting diverse candidates. Maybe to assist you in that, you’re going to find that people are actually looking at the statistics more.’

For corporate clients concerned with the bottom line, why care about progress here? Blackman is unequivocal: ‘We genuinely believe that if you’ve got a diverse environment, you get better results.’

The importance can therefore have financial incentives attached, Newman points out: ‘Ernst & Young have some really good diversity initiatives, like targets with teeth, where people don’t get their bonuses unless they meet their diversity targets.’ She adds: ‘I think the firms, the bigger ones at least – the ones with the money and the power to actually change things very quickly – know that we are watching.’

Abimbola adds: ‘Client power is very important. It’s something that I advocate very, very strongly with the in-house community. The [diversity and inclusion] element… had significant weighting when I did a request for a proposal for our panel last year. There were technically outstanding firms who did not even get to present to us, because they were doing nothing for D&I.’ In this regard, she says, ‘clients have a real responsibility’.

That diverse environment, to return to Amoah’s point, would be helped by greater solidarity. Nwauzu’s experience of setting up the Black Lawyers Directory in 2006 is instructive here: ‘I heard [lines like], “Well, why should I help you? Nobody helped me”.’

Even less collegiate behaviour is related by Douglas, who recalls the attitude of one BAME lawyer she encountered when working at a local law centre: ‘She said, “You will never be like me, and there’s only space for one of me”… She actually destroyed me by that comment, but I picked myself up, being the sort of [person] I was at the time.’

Such experiences can be scarring, Moses notes: ‘One of the things that I’ve often seen happen is hope dies, not just because people don’t get [a position], but because they see someone who they know is not as good as them get it.’

Ogun can personally reflect on more collegiate behaviour. Establishing his firm 20 years ago, he says: ‘When my sister couldn’t get a training contract after university, we trained her. My wife couldn’t get a training contract. We trained her. We have brought through so many in our community, precisely because we shared the view that you can’t leave it all to others to do it.’

On an upbeat note, Law Society Council member Nwabueze Nwokolo says: ‘Every year, the Law Society publishes statistics about various different groupings. One thing that is consistently rising is the number of black and minority ethnic people who choose law. So, we are doing something positive.’

It seems right that the last word should go to Barclays’ Amoah, as the most junior lawyer attending the roundtable. Making an appeal for the roundtable write-up to further her aims on diversity, she says: ‘We have an opportunity here. We’ve talked about the problem. The output we want is that, as a result of this roundtable, [we will] get some messages out there (see box out above) as to what we want to happen.’