Ticking boxes – Is City law going beyond the platitudes on ethnic diversity?

‘People are so scared to talk about race in the UK,’ Linklaters senior partner Charlie Jacobs says. ‘They think it’s a landmine they’re going to walk straight into, so they’d rather avoid it entirely.’

A landmine – easy to lay but hard to get rid of – which has seen Big Law for years avoid a substantive discussion around ethnic diversity. Gender is already an uncomfortable topic for the industry, yet not so uncomfortable that it has obscured increasingly intense scrutiny of the profession’s poor record promoting female partners. In contrast, ethnic diversity at the upper reaches of commercial law is rarely addressed head-on, being submerged in the wider ‘D&I’ discussion.

Legal Business is aiming to provide a little more clarity on this issue, assembling data from the UK’s 12 largest law firms. Even at first glance – and figures on ethnic breakdowns are notoriously sensitive to statistical sleight-of-hand or reporting variations – they show a wide disparity between peer firms.

Across the UK partnership of the top 12 firms, just under 7% identify as black, Asian and minority ethnic (BAME). In isolation the figure may seem better than many expected, given the striking scarcity of black lawyers at senior levels of City law. For context, Law Society statistics found 12.8% of solicitors in private practice in England and Wales were classed as BAME in 2017, a figure that has risen from 9.5% ten years earlier, but one that is complicated as a comparison because of holes in the data.

If gaps in the statistics make it hard to gauge change over the last decade, the professed commitment on diversity is much more vocal. Ten to 15 years ago, top City firms barely pretended to engage in the subject, now they market their position as progressive outfits relentlessly.

‘How do we make sure diverse lawyers are getting the same hours and same feedback? It’s going to need groups of partners knowing it and getting on top of it.’
Tom Shropshire, Linklaters

Yet informed observers still frequently complain of a lack of commitment beyond box-ticking initiatives and a disregard of the dismal retention rates for BAME lawyers shipped in at junior level. Meanwhile, some minority groups remain virtually unreachable by law firms with their current strategies and there has been mounting disquiet regarding the relationships and tactics of law firms in working with some of the expanding pool of diversity consultants.

‘Frankly, for a long time firms have done the bare minimum,’ laments Jat Bains, Macfarlanes partner and ambassador for diversity consultant Aspiring Solicitors. ‘They do things like bias training just to tick the box. I hate the phrase political correctness – it’s not about that – it’s about being thoughtful and hospitable to people.’

Few claim law firms are blind to concerns over ethnic diversity. But the question is whether concern is enough to translate into the hard slog of engaging with communities with few historical links in law and changing entrenched habits of partners. As Sandra Wallace, DLA Piper’s joint managing director for UK and Europe, notes: ‘We wouldn’t need a feature on it if we’d taken enough strides.’

Reading the dial

Assessing the profession’s position on ethnic diversity requires some context. Across the more than 2,300 UK-based partners at the top 12 firms in the Legal Business 100, 7% identify as BAME, according to figures supplied to Legal Business. The proportion ranges from 5% of the partnership at Freshfields Bruckhaus Deringer to just under 12% at Linklaters (see box below).

This is broadly in line with the picture in the profession. The 2008 Law Society statistical report found that around 7% of partners across the UK were classed as BAME. A decade later, the proportion of BAME partners has edged up to nearly 10%.

Within the top 12 firms there are large variations. Clifford Chance (CC) met the average of 7%, while Slaughter and May was well below at 5%. Time – so often cited as a great agent of change by law firms – shows itself to have only a modest impact on ethnic diversity at the senior end of law, though it is hard to be clear given the lack of reliable historical figures for the group.

More promising signs can been seen for younger solicitors. The overall percentage of UK lawyers who identify as BAME is significantly higher across the top 12, at 17%, while for non-lawyer staff the figure is 13% (surprising perhaps, given anecdotal claims that it is business services staff in law firms that tend to be more diverse). Ashurst recorded the highest percentage, with 28% of UK lawyers classed as BAME. CMS was the only firm to record a single-digit figure, at 8%.

Looking at the wider picture, the Law Society figures do note that BAME practitioners have increased more than 50% over the last decade, from 7,889 in private practice in England and Wales in 2007 to 11,937 in 2017: 12.8% of solicitors in private practice overall (Law Society stats are limited in their reliance on self-designation of ethnicity. Though they provide a historic benchmark, they will not capture all BAME solicitors).

‘We wouldn’t need a feature on ethnic diversity if we’d taken enough strides.’
Sandra Wallace, DLA Piper

Returning to the top 12 UK firms, the disparity between the junior and senior ends is underlined by the group’s 2019 partner promotion rounds. Across the firms’ 317 promotions to partner globally (excluding the US businesses), 47 were BAME based on an independent visual assessment of online partner profiles. In the UK, 11 out of 113 lawyers promoted could be identified as BAME, while in London the figure stood at ten out of 90 lawyers, or 11%.

The London figure is below the demographic make up of the region, with around 40% of London belonging to a minority ethnic group according to the latest figure from the Office for National Statistics (ONS). This drops substantially, however, across England and Wales to 14%.

But the crux of the matter is dire representation of black lawyers. In total, two of the UK lawyers promoted in the group were black, less than 1% of the overall round, with one of the lawyers being made up in London. According to ONS figures, the Afro-Caribbean make-up of London in its latest research was 11.2%.

Such disparities fuel the common concern that headline figures are heavily distorted by the inclusion of minority groups that are already experiencing comparable privilege and educational opportunities to white counterparts. ‘The numbers are definitely flattered by Asian representation,’ notes Jacobs at Linklaters.

Here we enter the minefield of identity and self-reporting. Unlike gender, in the main an easily-identified group, ethnic background is more fluid and subject to both individual choice, and potential statistical gaming.

Lawyers are also much more likely to disclose gender than ethnicity, and diversity questionnaires at law firms remain non-compulsory. For many reasons, the data cannot be regarded as robust or reliable as equivalents for gender. This is underlined by the fact that gender representation figures are far closer across the group than figures the same firms provide for ethnic representation.

‘On the trainee side, we’re 75% of the way there.’
Raph Mokades, Rare Recruitment

Many also argue the BAME umbrella is a fundamentally misleading grouping, since the experiences of different ethnic groups vary enormously. Certainly, many senior figures among the more than 30 individuals interviewed for this article believe that some ethnic groups are barely being reached at all by the profession.

Comments Leona Ahmed, co-head of the real estate sector for Addleshaw Goddard: ‘In the early part of my career I would go to black and Asian lawyer networking events and there were predominantly Asian lawyers there. At our own firm, I’d say there are still fewer black lawyers than there are Asian.’

Tom Shropshire, Linklaters’ US practice head, says a more nuanced approach is needed. ‘There’s ethnic diversity due to a firm’s geographic spread, and there’s diversity relevant to the community you’re in. One should not be used to mask the other.’

Within the wider BAME camp, Paulette Mastin, counsel at Linklaters and chair of the Black Solicitors Network (BSN), believes representation of black lawyers at top firms is as low as 1%. Slaughter and May partner Nilufer von Bismarck says the firm has long been told it is black candidates who require the most help in overcoming systemic obstacles.

Overall, while retention rates adversely affect many BAME lawyers, it seems not even substantial increases in the levels of BAME intake at the trainee level are much benefiting black candidates. One business service professional at a top 50 UK law firm notes that their firm, with over 350 lawyers, currently employs just one black solicitor. Whatever the cause – society at large, the profession, or varying aspirations of individual candidates – few claim City firms are anywhere near making progress in improving black representation.

We do that

‘When I first came over to the City from the US I’d ask firms if they had diversity initiatives or targets,’ reflects Daniel Winterfeldt, Reed Smith partner and founder of LGBT diversity forum InterLaw. ‘They’d just laugh and say: “That’s so American. We don’t do that over here.”’

Such attitudes have moved on, superficially at least. All the firms Legal Business approached cited internal initiatives targeting BAME representation, while many were also signed up to external consultancies. The most popular external consultants among the top 12 include Rare Recruitment, Aspiring Solicitors, Bright Network and SEO London.

In junior recruitment, there are clearer signs of progress. Hogan Lovells sports one of the highest BAME representation stats in its latest graduate recruitment round, with 47% belonging to a minority ethnic group in the UK. For context, 15% of Hogan Lovells’ UK lawyers identify as BAME. The firm’s main recruitment strategy is based on a partnership with external contextual recruitment business Rare.

‘Frankly, for a long time firms have done the bare minimum. They do things like bias training just to tick the box.’
Jat Bains, Macfarlanes

This looks to contextual academic attainment against a student’s ethnic, economic and schooling profile, trying to grade more subtly against their environment. For example, a student achieving ABB at a school where the average is CDD could be considered more intellectually capable than a student that achieved AAB at an elite school. Hogan Lovells has also partnered with Aspiring Solicitors through the hosting of events at universities.

Linklaters is similarly teamed up with Rare and the firm has a global diversity recruitment team. Meanwhile, Freshfields created the Stephen Lawrence Scholarship Scheme, which gives black men from less-privileged backgrounds an introduction to City law and support, including a bursary and a career development programme. The firm says that 55 scholars benefited between 2013 and 2018.

CC, which has long been regarded as one of the most progressive of the major City firms on diversity, has among the strongest results on representation at recruitment level. The firm – an early convert to contextual recruitment – has secured BAME representation of 48% in its latest intake and a quarter of its UK lawyers identify as BAME.

Elsewhere, CMS is primed to pilot blind CVs in a number of areas of the business while the firm’s ‘early talent acquisition team’ will use contextual recruitment more widely. One area of difference at the recruitment level for the top 12 is how heavily partners are involved with diversity efforts, though most graduate recruitment schemes among large firms are broadly similar.

Looking at the figures, there is little obvious pattern in BAME representation between peer group firms – the different numbers for Freshfields and Linklaters are striking, for example. What is unclear is the extent to which such divides reflect differing outcomes and commitments on one hand or varying means of gauging staff demographics.

Whatever the shortcomings of the industry, many feel the battle at junior intake has made real ground. ‘On the trainee recruitment side we’re 75% of the way there,’ argues Rare founder and chief executive Raph Mokades. ‘In terms of social disadvantage and ethnic minorities, generally, we’re doing really well, but it’s not as good as it should be on black men. There are cold spots – we’re not recruiting many people from the rougher parts of Plymouth – but at the recruitment level I don’t think there is a whole lot of bias left in those processes.’

Linklaters is among a growing number to champion reverse mentoring programmes. The aim of such initiatives is to have younger lawyers mentor more senior peers on issues relating to ethnicity and culture to spread the message to the partnership and build crucial social bonds.

DLA Piper, CMS, Slaughters, Freshfields and Allen & Overy (A&O) also have such programmes. Ashurst has a more conventional mentorship model, with its small group mentoring programme now being expanded to a one-on-one initiative available to any individual from a BAME background. Reverse mentoring is regarded as one of the most effective means of embedding cultural change when proactively applied but it is also prone to confusion on how to implement.

‘Retention is why we’ve got a reverse mentoring scheme,’ says Wallace at DLA. ‘It is so we can be told, and so we keep hearing what things are going to keep talent in our business.’

There is a live debate on whether firms should pursue a minimum target for BAME partnership representation, with such public goals already common for gender. Macfarlanes is among those to have such a target, looking to increase BAME representation at its partnership to 10% against 2% in 2017. Eversheds Sutherland is considering a target, though the firm has yet to land on a figure, with 5% of the firm’s partnership currently identifying as BAME (co-chief executive Lee Ranson has made it clear he wants the firm to materially raise its game on diversity).

Bias training is a mainstay and compulsory across much of legal. Even those with a jaded view of the industry’s efforts concede it has a positive impact on graduate recruitment, though far less so in more subtle areas of mentoring and favouritism that later help build enduring legal careers. ‘A few years ago you saw a zeitgeist moment where partners were being trained on unconscious bias,’ argues Laura King, global head of people and talent at CC. ‘Partnership has drunk the Kool-Aid on that stuff.’

‘People are so scared to talk about race in the UK. They think it’s a landmine they’re going to walk straight into.’
Charlie Jacobs, Linklaters

‘Johnny’s getting promoted’

Given the ubiquity of diversity initiatives, cynics ask why progress has not made it further up the hierarchies of major law firms. Promotion remains the most common concern. CC, for example, has a strong story to tell, with 25% UK lawyer BAME representation. Yet this translates to only 7% at UK partnership. And the dramatic fall-off from the 40%-plus intake figures at some large firms is also telling.

One former Magic Circle senior partner says the problem sets in early for BAME solicitors on post-qualification where it is harder to get the informal mentoring and the career-making work allocation that positions mid-level associates for a run at partnership. He comments: ‘There’s a real problem around the need for partners to not clone themselves when they’re promoting people. Promotion is a very partner-led exercise and HR doesn’t sit in on those interviews.’

Linklaters’ Jacobs echoes the sentiment: ‘If you have young Johnny and all the clients love Johnny and Johnny reminds you of yourself and he’s your heir apparent, then guess what? Johnny is getting promoted.’

It is here that contextual recruitment – for all its clear advantages in pushing up intake numbers – fails to impact. Chris White, founder of Aspiring Solicitors, argues some firms rely too much on such tactics as a silver bullet: ‘Contextual recruitment tools are just a tool,’ he says. ‘It doesn’t coach or mentor candidates. Some people don’t understand that.’

‘At a base level for BAME candidates, there is a difficulty to connect with law firms as organisations,’ agrees Shropshire. ‘That ability to have a strong connection with the firm is not as strong as it is for others. And the problem with that is, as you progress, that connection becomes very important. It turns into stewardship and sponsorship.’

CC’s King dubs this problem ‘benevolent bias’ among partners, which sees them struggle to nurture BAME candidates. ‘Senior white people sometimes don’t know how to supervise people from a very different background. The feedback wasn’t what those kids needed, there was a reticence to be open with them and they didn’t know what to say to these kids.’

Melissa Butler, White & Case’s London executive partner, comments: ‘Once diversity starts to permeate management, things can move quickly. Having said that, we’ve been talking about diversity for the last 20 years or more.’

Another oft-cited issue is the failure of diversity teams and senior management to bring on board influential practice and team heads to push through change. Says one senior partner: ‘The regional heads need to be accountable, you can’t just say it’s D&I or HR’s job.’

For Linklaters’ Shropshire, the need to make connections between senior partnership and junior BAME lawyers has to be championed by groups of engaged partners. ‘With our teammates here we as partners have to be responsible to make those connections, or we will lose our talent. It needs to come from the top and we need to be holding [partners] to account. How do we make sure diverse lawyers are getting the same hours and same feedback? It’s going to need groups of partners knowing it and getting on top of it.’

The war goes on

‘The battle doesn’t end once you get them through the door,’ says DLA’s Wallace. But not only is the battle not ending when BAME lawyers get through the door – in too many cases it is being lost outright. One City HR head even argues that law firm open days aimed at improving diversity can repel diverse candidates by quickly displaying the monoculture of City law.

‘A few years ago you saw a zeitgeist moment on bias training. Partnership has now drunk the Kool-Aid.’
Laura King, Clifford Chance

And no-one is pretending that improving ethnic diversity is easy given the complicated inter-relation of race with privilege, educational access and social mobility in the UK. If the nation is empirically struggling to provide equal educational opportunities to certain ethnic groups – for many complex reasons – it is not easy for a career like law based on structured learning to easily be part of the solution.

But what has been missing is a franker debate on the issue in the way that has emerged in recent years with gender representation: the kind of discussion that at least provides a clearer picture of where the profession is now and establishes steps to improve.

The debate over female representation in law is also a reminder that simply arguing that progress is a matter of time is not a credible response. Left to naturally change, institutions keep rebuilding themselves in the same image. The ‘business case’ for diversity will alone do little more than tick that box. It takes a degree of leadership to support change.

‘It’s about who is responsible for it,’ concludes Jacobs. ‘Who is going to put their head on the bloc and say it’s an issue for them? If you do that then people remember you said that when it comes to looking at your record.’

‘The message has to come from the top,’ says Wallace. ‘People have got to hear you saying: “This is what we expect, this is what we’re looking for, go away and bring us what we’re looking for.”’ LB

thomas.alan@legalease.co.uk

hamish.mcnicol@legalease.co.uk

Additional reporting by Marco Cillario and Nathalie Tidman.