Despite much debate in recent years, social inclusion in the legal profession remains woeful. Are a new range of initiatives the latest diversity fads or steps towards a breakthrough?
Ray Berg, UK managing partner of Osborne Clarke, recalls first getting his foot in the door of the legal profession: ‘I only got work experience because my dad started talking to someone in the back of his cab. He was so proud to say his son was this, that and the other. That someone was the then managing partner at Nicholson Graham & Jones and he said: “Would your son like to do a week’s work experience with us?” That was extremely fortuitous but people without those contacts shouldn’t have to rely on fortune like that.’
As has been well documented, the profession’s record on social mobility has hardly improved since Berg got his lucky break. On some measures, law firms have followed the UK in becoming less socially mobile since the 1970s.
Of course, a key issue remains the UK’s poor record on providing quality education to those from non-privileged backgrounds. Research from the education charity the Sutton Trust found that five of the top private schools get more students in Oxford and Cambridge than the bottom-performing 2,000 state schools.
This feeds through into the ranks of the legal elite, with the same report finding that 68% of barristers at leading sets went to fee-paying schools, against 7% for the UK population as a whole. Fifty one percent of Magic Circle partners over 40 attended a fee-paying school.
Nevertheless, the statistics confirm that progress is glacial even in a profession that has expanded three-fold since the 1970s. This reality hit the headlines again in June with the publication of a study backed by Milburn’s panel on barriers to entry to the professions focusing on leading law and accountancy firms.
The findings of the report, ‘A qualitative evaluation of non-educational barriers to the elite professions’, were a good deal more nuanced than the ‘poshness test’ Milburn proclaimed that top City firms impose on candidates. But the report did find that elite law firms continue to employ young people who are predominantly from more privileged backgrounds, and out of those firms supplying data according to job type, typically close to 40% of graduate trainees were educated at fee-paying schools.
This outcome is attributed in part to a series of assumptions around talent and meritocracy, which tilts the playing field away from the less socially confident candidates.
‘The statistics are the statistics and there is no getting around that,’ admits Scott Cochrane, head of UK corporate at Herbert Smith Freehills (HSF). ‘I went to the local state comprehensive school in Dumbarton and the real question for me is how and why are we losing people? Why are people who went to my school not ending up doing what I do more regularly?’
David Morley, senior partner at Allen & Overy (A&O), himself a state-school boy from Chester, argues that progress requires a multi-pronged approach. ‘It is a really complex issue and there are many players in this. For example, schools and the way kids are educated and what aspirations, if any, are encouraged. Through to universities, to the way they select and recruit and give careers guidance through to the government in terms of how they support people from poorer backgrounds and the professions. And everybody has a role to play. It is a great big ball of string with lots of different strands to it. And we are only one of those strands.’
While it is inarguable that law firms have to work with society and the educational landscape as it is, they still have considerable influence to bear.
‘You can’t blame law firms for recruiting good graduates from Oxbridge who have been to excellent schools,’ says Slaughter and May head of corporate Andy Ryde. ‘But there is some laziness here and there are easy steps which aren’t being taken. How many of us are strong enough to decline when a senior client asks for a vacation placement for his daughter to help build her CV? Every time we agree to this, we are perpetuating elitism rather than operating a meritocracy.’
Berg agrees a more full-blooded response is in order. ‘What is required is a more root-and-branch approach. The schemes all do certain things, but there needs to be a shift in attitudes and approach. You have to change people’s hearts and minds.’
Perhaps part of that answer will come in the growing number of initiatives to emerge in the last three years – notably focusing on bias in recruitment – that are aimed more at tackling the core of how the profession defines and secures talent.
Demand-side solutions
Inclusion schemes and policies cover both the supply and the demand side of the social mobility equation, with the former aimed at encouraging a wider group of applicants to consider a career in law, while the latter addresses how the firms recruit.
Supply-side programmes aim to raise aspirations among students from less privileged backgrounds, seen in initiatives such as PRIME, the Sutton Trust-backed Pathways to Law and A&O’s Smart Start. These initiatives often focus on working with schools in deprived areas, and can involve identifying students with potential and supporting their development through work experience, training and mentoring.
Though the accountancy profession is often regarded as ahead of the law in social inclusion – in reality the statistics on this point are ambiguous – PRIME influenced a similar programme, Access Accountancy, that launched in 2014 with all the major audit firms (the major accounting firms certainly have been more progressive on apprenticeships and more flexible on considering academic qualifications).
‘We looked at the legal sector, at PRIME, when we wanted to develop Access Accountancy. They gave us a lead from which we could really develop a model, that’s been hugely beneficial,’ says Rachel Hill, senior social mobility manager at Grant Thornton.
However, the June report, produced by the Social Mobility and Child Poverty Commission, questions the effectiveness of such initiatives, concluding that although they are ‘undoubtedly transformative for some students and are therefore valuable on this basis, there is little evidence to suggest that significant numbers of students who would not otherwise access the elite professions are currently doing so as a result of these interventions’.
Dr Louise Ashley, lecturer in human resource management and organisational behaviour at Royal Holloway, University of London and one of the report’s authors, believes one of the reasons why such little progress has been made is an over-reliance on programmes that operate at the margins of how firms treat potential recruits.
‘Many firms haven’t changed their recruitment and selection processes that much in terms of the types of people they recruit and how they do it, so even when they have introduced really interesting social inclusion initiatives, they do so against a backdrop where mainstream processes continue to disadvantage particular groups of applicants on grounds other than ability. We recommend that firms also look at those mainstream processes with a critical eye to make sure they are identifying talent in a way that is fair.’
Policies she advocates include unconscious bias training, ‘CV blind’ selection and flexibility in judging academics for some candidates.
More recently some firms have also started exploring the use of socioeconomic data to contextualise academic performance at school, a measure the profession has previously strongly resisted.
‘There is some change,’ says Ashley, who is more impressed with the commitment of professional services firms than the press release announcing the report’s launch implied. ‘More firms are now focusing on fair selection techniques in order to address some of the issues embedded within those practices and there is some great work happening in that area.’
The slow march: legal apprenticeships and new paths to law
While major accountancy firms have made substantial use of apprenticeships, in law progress remains slow despite government attempts to encourage work-based learning and Solicitors Regulation Authority (SRA) reforms designed to widen educational access.
The current apprenticeship framework for legal services, developed in 2012, created the existing structure of the advanced ‘level three’ apprenticeships for GCSE level students and ‘level four’ apprenticeships for first year undergraduates, enabling qualification in roles including paralegal. In addition, the Chartered Institute of Legal Executives (CILEx) provides a qualification for chartered legal executives, for those with a minimum of four GCSE grades C or above.
A wide range of firms including Berwin Leighton Paisner, Bond Dickinson, Mishcon de Reya and Wragge Lawrence Graham & Co (WLG) take on paralegal apprenticeships, with some of these also taking on legal executives. Numbers are typically small, but Noel Inge, managing director of CILEx Law School, is confident these figures will increase.
‘Firms typically take on one or two paralegals to start off with, but as they become more confident they take on slightly bigger numbers. Law firms will have to change because IT and the way the economy is organised will force them to change. And especially with [alternative business structures] coming into the market – it is going to force the pace of change.’
However, it wasn’t until the SRA made substantive changes to its training regulations on 1 July 2014, which included removal of the certificate of academic standing and the introduction of on-the-job training, that school leavers could undertake an apprenticeship enabling them to become a qualified solicitor over a six-year period. This paved the way for the University of Law (ULaw)’s Articled Apprenticeship Scheme – the first of its kind – which was unveiled in November 2014.
‘We have taken some of the changes brought in by the 2014 revision of the training regulations, which essentially allow you to qualify as a solicitor by doing four years part-time LL.B degree, two years part-time Legal Practice Course (LPC) plus the professional skills course,’ says Alan Woods, the director of apprenticeships and vocational education at ULaw. ‘Now you don’t have to study things sequentially, you can count that period of time when you are at work as your period of recognised training.’
So far only four firms are currently advertising the new articled apprenticeship for a start date in autumn: Hillyer McKeown, Gamlins Law, Rowlinsons Solicitors and Mayer Brown; only the latter is an international law firm, with the remaining three all regional firms based in North Wales and the North West.
According to Annette Sheridan, global chief HR officer at Mayer Brown, which is taking on one apprentice, the articled apprenticeship was a natural progression from the firm’s existing business services apprenticeship. ‘We commenced that in 2012 and have learned an enormous amount from embedding apprenticeships within our business services teams. It is a pilot, it doesn’t mean we will stop at one apprentice. Our hope is that we will build on that.’
Gauging the impact of apprenticeships is difficult given that there will be yet another overhaul of the apprenticeship framework with the introduction of the Trailblazers Apprenticeship in Law initiative due to come into force by September 2016. The employer-led scheme, supported by the Department for Business, Innovation and Skills and the Department for Education, will create new apprenticeships leading to qualification as a solicitor, chartered legal executive and paralegal.
The committee that will create new standards consists of employers, professional associations and regulators from across the profession and is chaired by Gun Judge, HR specialist at Addleshaw Goddard. The initiative, which is only relevant to the England and Wales qualification, is being carried out in phases. Phase one from March to August 2014 was establishing the roles and responsibilities of each standard as well as the academic route.
According to Judge, over half of the top 25 law firms have been in consultation over Trailblazers. Twenty are already signed up, including Addleshaws, Clyde & Co, Dentons, Eversheds, Mayer Brown, Olswang and Simmons & Simmons as well as Barclays and The Royal Bank of Scotland.
However, the Magic Circle is conspicuous by its absence.
‘It is something we are keeping under review,’ says Allen & Overy senior partner David Morley. ‘I am personally in favour of having a non-graduate route to recruitment, the profession used to have that until it was abolished 20 or 30 years ago. Is that going to solve the whole social mobility problem? No. It is going to be a whole range of things – chipping away at this bit by bit from a whole range of different angles. That is what is ultimately going to shift it.’
With the first solicitor apprentices under the Trailblazers initiative not due to qualify until 2022, any evidence of success or failure is a long way off.
‘Apprenticeships are often presented as social inclusion initiatives and they do contribute here, but the data is a bit ambivalent,’ says Dr Louise Ashley, lecturer in human resource management and organisational behaviour at Royal Holloway, University of London. ‘A number of people coming on to apprenticeship schemes aren’t from significantly different backgrounds than those that come off graduate schemes so we suggest that at least some of those opportunities need to be ring-fenced. And some firms are already doing that.’
However, Ashley suggests apprenticeships may give people from non-traditional backgrounds more time to assimilate to a law firm environment in slightly more forgiving circumstances.
There are a couple of reasons why some law firms are reluctant to take on apprentices. One of these is the fear that apprenticeships create professional backwater with little credibility.
‘There is a risk of creating a two-tier system and that is why we think it is important that the apprenticeship also incorporates a degree so you get away from this graduate/non-graduate two-tier system and both have equal validity,’ says Peter Crisp, dean and chief executive of BPP University Law School.
However, Richard Bate, head of real estate at WLG who will take on three paralegal apprenticeships under the Advanced Apprenticeship in September, believes this concern is unfounded.
‘If you get good apprentices they can be among the most bothered of all in terms of self-improvement. On the other hand if you take a typical Russell Group-type graduate of this generation some of them can be complacent about self-development.’
Nevertheless, some argue that apprenticeships are best suited to more commoditised work and this is why apprenticeship schemes work better for accountancy firms. PwC, for example, typically takes on 150 apprentices in the UK each year.
‘My own view is that for a lot of firms it will only be a handful of people who qualify in this way,’ says Crisp. ‘At the moment some firms, particularly those who have a transactional business, can’t work out how the model fits in with the nature of their work. It does work for accountancy firms very well but the nature of legal is not necessarily predictable.’
Also significant is the building momentum in policy circles to promote work-based learning, with both the Conservative and Labour Party going in this year’s general election with commitments to ramp up the number of apprenticeships. The number of UK apprentices has dramatically risen from 491,300 in 2009 to 851,500 at the end of 2014. Other factors supporting work-based learning include the long-term impact of rising student tuition fees and expansion of New Law providers (there has, however, been some controversy over moves to facilitate legal apprenticeships, with the City of London Law Society criticising SRA proposals for lowering standards).
As Judge sums up: ‘In an ideal world I would want everyone to come through this route as I am passionate about it from a social mobility perspective. But thinking about what the legal sector is like you are not going to change this sector overnight. The aim has always been to allow for a pipeline into the firms that really care about it because that’s when it will work.’
In practice
HSF is currently deploying a range of initiatives to address social mobility. The firm was one of the founding members of PRIME and since 2012 has given work placements to over 120 students through the scheme. This summer for the first time HSF provided a residential placement under PRIME which will target students outside London, who will stay at university halls during their placement. The firm also nominates five A-level students from comprehensive schools in London each year as part of the Networked Scholarship Scheme, that gives them career days and mentoring, and helps them to secure placements at different professional services firms – not necessarily just law firms.
‘We have a recruitment panel here of about 25 partners who do our graduate recruitment and we make sure they all go through unconscious bias training. Nobody on our panel should be in any doubt that it really doesn’t matter to us what school or university someone went to,’ says Veronica Roberts, graduate recruitment partner at HSF. ‘I did unconscious bias training about two years ago. It is a presentation and one of the things it incorporates, which is incredibly helpful, is that they put different pictures of different people on a screen and ask you to imagine that you are interviewing them and think about what your immediate reaction might be. You get a lot of people who say “I’m not biased” but then when they do the training people who thought they were completely unbiased start to realise that they have to be really careful and keep an open mind.’
‘Very soon we are adopting the contextual recruitment system,’ adds Roberts. ‘That enables us to contextualise applicant’s results looking at their academic and economic backgrounds. It shows where students have excelled in the environments in which they have been educated.’
Of firms canvassed for this article, most, including A&O, Linklaters, Addleshaw Goddard, HSF, Mayer Brown, Stephenson Harwood and Wragge Lawrence Graham & Co had overhauled their recruitment processes in recent years to try to make them more inclusive.
Addleshaws, which doesn’t ask for CVs in the recruitment process, also has a lower entry point academically. ‘We are trying to keep things a bit more fluid and open participation to a wider pool of candidates,’ says Gun Judge, Addleshaws’ HR specialist. ‘We have had an entry point of BBB at A-level for the last six years and have asked not to see CVs and schools attended for the last five or six years.’
In contrast, neither A&O nor Linklaters use CV blind. Morley comments: ‘We are not opposed to it but, frankly, we are not convinced it is necessarily that helpful.’
Linklaters trialled the approach a couple of years ago, but found it problematic. ‘We found that the pool of our successful applicants became less diverse, so we decided not to continue,’ says Simon Branigan, a graduate recruitment partner at Linklaters. ‘I went to a practice dinner with someone on our vacation scheme and she was a very impressive lady from Glasgow studying law at Cambridge. She said: “I worked bloody hard at my pretty rough comprehensive in Glasgow where most people didn’t even go to university and I got into Cambridge and I would like that – not to be a determining factor – but for people to recognise that is part of my background.”’
Linklaters, like HSF, will bring in a contextualisation tool for the next round of interviewing but for Branigan so far it has been unconscious bias training which proved most helpful. ‘I was quite sceptical about it but it was very effective. It makes you ask questions you might otherwise not have asked.’
Interviewed by Legal Business earlier this year, outgoing DLA Piper co-chair Tony Angel spoke of its impact: ‘Unconscious bias tests are absolutely terrifying. I scored a lot less highly than I would have liked. It is frightening to realise we have been culturally attuned to think in a certain way. The tests should be compulsory as they help you see problems in a way you don’t always see them in day-to-day life.’
Ashley is hopeful that as interventions become more intensive and sophisticated they will lead to change. ‘Think about how you define and identify talent and think about whether your selection techniques are necessarily fair. Firms are doing both now and we will see some progress hopefully as a result of that.’
Polished off
For students from less privileged backgrounds who do manage to make it to the interview stages for a vacation scheme or training contract, the report finds they will face further challenges inside a law firm.
‘The issues that kept coming up in our data around the conceptualisation of “talent” were very often issues around confidence – confidence is incredibly important in the way people turn up and present themselves to organisations,’ says Ashley. ‘Also this word “polish” came up again and again. It is quite difficult to get to the bottom of what polish is, it encompasses confidence but also a range of other attributes and behaviours that would seem to make someone credible both with respect to their professional colleagues but also with respect to clients.’
These terms are ambiguous but their impact on recruitment is material, according to Ashley, strongly supporting candidates from middle-class backgrounds.
‘I am very aware of the issues surrounding confidence and polish, and recognise that students from state schools may not have the same level of confidence compared to students from private schools,’ agrees Sue Millar, diversity and inclusion champion at Stephenson Harwood. ‘I personally don’t look to recruit on that. I look for answers that demonstrate an ability to think. We are looking for raw talent and intellect.’
Branigan, who attended a grammar school in Belfast, picks up the theme: ‘Polish is the gloss on top anyone can learn if they are bright enough. A strong academic record is important, but I look for people with passion, enthusiasm – a real genuine interest in the type of law we practice and clients we act for.’
There are also issues around career progression for those from less privileged backgrounds. One argument raised in the report was the idea of a ‘class ceiling’, hampering progression of those whose backgrounds do not fit.
Ashley goes on to cite the example of several firms she spoke to who were holding team-building ski trips. ‘For a lot of people from certain, perhaps less affluent, backgrounds that is an immediate disadvantage because if you have never been skiing you have already been marked out as different.’
When this question is put to those from state school or less privileged backgrounds who are now partners at major firms, the reaction is mixed.
One partner, now at another firm says they did face some pressure to conform at A&O: ‘When I was at A&O – which is a great firm and I love it dearly – I had people go, “Oh, did you really go to Oxford?” because of my accent. I have had a lot less of that at my new firm.’
For Cochrane, the issue is not class but professionalism. ‘Irrespective of our background, we all have to make changes when we start our professional life. I don’t speak the way I did when I was 15. I don’t consider that a barrier issue. If you speak with a broad accent in London, it makes you harder to understand, so you modulate that a bit. And you learn that it is generally considered inappropriate to wear white socks with your business shoes. I am not trying to trivialise it, but part of the process in any job of becoming a professional is you have to take what you know through your experience and background, observe what successful people around you are doing and modulate your own behaviour.’
Morley concludes: ‘In my entire career I never had any sense that there was any form of ‘class ceiling’ that might hold me back. It is a very personal thing. One person can feel victimised by a situation, another person can feel energised by it. And the impact of the individuals around you rather than the firm can be crucial.’
Policies and progress – a cross-section of inclusion at major law firms
Allen & Overy: Policies and initiatives include Smart Start, Smarter Futures, and Pathways to Law. All partners required to undertake unconscious bias training. Founding member of PRIME. 39% of UK partners attended state school. 43% of UK partners attended fee-paying/independent school.
Linklaters: Launched Realising Aspirations programme in 2007, and works with a number of charities, including Inspire!, The Access Project and the Sutton Trust. Unconscious bias training for all interviewers. Introducing contextualisation tool for judging applicant grades. 32% of UK partners attended state school. 23% of UK partners attended fee-paying/independent school.
Herbert Smith Freehills: Member of the Networked Scholarship Scheme, supports Pure Potential’s Pathways to Law programme, provides Excel scholarship with recruitment specialist Rare. Unconscious bias training for all graduate recruitment partners. CV blind on schools and adopting contextual recruitment system. 77% of UK trainees and 78% of UK partners attended a Russell Group University. 44% of UK partnership attended private school.
Mayer Brown: Involved in King’s College London’s K+ scheme and works with Aspiring Solicitors. Unconscious bias training for everybody involved in recruitment and assessment. Blind CV on schools and universities for training contracts piloted in 2014. First law firm in the City of London to offer ULaw Articled Apprenticeship. 39% of UK trainees attended state school. 36% of UK trainees attended fee-paying/independent school. (The remainder did not specify or were educated abroad.)
Addleshaw Goddard: Does not use CVs in recruitment process and does not request information on secondary schools. Lower barrier academically, BBB at A-level. Unconscious bias training for managing supervisors. Signed up to the Trailblazers Apprenticeship in Law initiative with HR specialist Gun Judge heading up reform of existing framework. 47% of UK partners attended state school. 27% of UK partners attended fee-paying/independent school.
Osborne Clarke: Involved in inclusion schemes with Future First, The Lighthouse Group and Pathways to Law. Works with Park Community Centre in Bristol. Considering CV blind and unconscious bias training. 80% of UK trainees attended state school. 20% of UK trainees attended fee-paying/independent school.
A question of leadership
If there is a growing consensus that law firms need to raise their game on inclusion – one of the thorniest issues is whether that push should be based on the business case, or is a matter of professional leadership.
Unlike gender or ethnic minorities, social inclusion faces unique difficulties in definitions and measuring progress. For most firms, making significant changes to recruitment and selection processes which would genuinely open access is not a commercial priority.
Of course, there is an obvious argument that widening the talent pool has advantages. One of the largest ever studies conducted in the field – published in the US in 2009 tracking 5,000 lawyers who began practising in 2000 – concluded that recruiting from only the most prestigious colleges led to an associate base with a strong sense of entitlement, with a tendency to dissatisfaction. In contrast, recruiting promising candidates from mid-tier institutions produced individuals more likely to value their job and mature into productive partners.
But the reality is wading through mountains of applications without using educational outcomes as the primary filter is a substantial cost in time and resource.
‘We get around 3,500 applicants a year for 70 places and are only able to interview around 300,’ says Cochrane. ‘It does mean there is a focus on grades and focusing on grades is tough because if you are looking at people who have got AAB at A-level minimum then that can make it harder for state school pupils. That’s why we’re removing a strict minimum requirement at A-level. We will also soon have contextual data, which will allow us to identify students who have excelled in their particular school.’
Additionally, while clients are relatively vocal on the subject of gender diversity, pressure for inclusion is muted at best.
Ashley comments: ‘I don’t think within the legal sector or maybe in society more generally we are comfortable talking about social background. People often feel that questions about class are intrusive and rude.’
There are some indications that such attitudes are – slowly – changing. As Branigan attests: ‘I have had a number of conversations with clients around social mobility. One of my clients has raised the issue of legal apprenticeships and asked that we are involved in it.’
Roberts is also optimistic: ‘Clients are increasingly asking us what our social diversity is like. I went to a pitch for a FTSE 100 client a few weeks ago and first of all they asked about the number of female partners but also the general counsel (GC) asked about how we made sure we were getting students in from a range of universities. You will see a shift in that direction.’
The fact that The Royal Bank of Scotland and Barclays have both signed up to the incoming Trailblazers Apprenticeships in Law initiative (see box, ‘The slow march’), signals further changes in attitudes. (Goldman Sachs, Vodafone and Yahoo! have also joined PRIME, while ITV’s legal team has been a vocal champion of social inclusion.)
Still, the realities of the law firm model and vast numbers of candidates flocking to the profession strongly suggest that it will require law firms to take a lead rather than wait for a market solution or stale notions of meritocracy to resolve the matter. The example of 20 years of stalled progress on gender diversity at partnership level strongly suggests the business case is unlikely to provide much pressure for change as long as the commercial profession has so much talent to spare.
Comments Morley: ‘It is critical for the profession to be able to open its doors and recruit from a broad range of backgrounds not least because ultimately if we do not reflect the society that we are serving we will end up becoming irrelevant to that society.’
Ryde again calls for more leadership: ‘The professions are still at a primitive stage in tackling diversity issues. Gender and ethnic diversity issues are generating a lot of heat and light but getting increasing numbers of posh women and ethnic minorities into senior roles doesn’t feel like much progress to me. It’s hardly time to start patting ourselves on the back because a woman who went to Cheltenham Ladies’ College has become a partner at a law firm.
‘The playing field is now very level for young British lawyers from privileged backgrounds regardless of gender or ethnicity. The area where there is huge progress still to make is around social mobility. There is still a snobbery in the City, which means that regular kids from non-elite backgrounds find it hard to get jobs or, if they do, to fit in.’ LB
kathryn.mccann@legalease.co.uk