An independent, strong, diverse and effective legal profession – if at first you don’t succeed, try try again, but how many chances do we need?

As a firm, we have had many discussions about Black Lives Matter and how we can make a difference to the movement. In the seventh blog in our series, Jessica talks about the importance of creating an independent, strong, diverse and effective legal profession.

We recently wrote about the importance of equality, diversity and inclusion (EDI) initiatives in promoting a good working culture within law firms, and explained why one of the key responsibilities of any employer is to create both a diverse and an inclusive workplace.

Legislative and regulatory obligations

Legislation sets the minimum legal obligations – such as ensuring that law firms take steps to remove potential discrimination, harassment and victimisation – but your regulatory obligations extend beyond this. Encouraging an “independent, strong, diverse and effective legal profession” is one of the all-pervasive “regulatory objectives” set out at section 1 of the Legal Services Act 2007 (LSA), which the oversight regulator (the Legal Services Board (LSB)) and all of the approved regulators, when discharging their regulatory functions, have a duty to promote.

The here and now

The LSB has recently committed to working with the regulatory bodies to collect and evaluate data which is meaningful and also to review the regulatory performance framework in 2021, to find a way that optimally measures how well each regulator is doing at achieving what it has set out to do. The LSB has also said it will also work with the Legal Services Consumer Panel to understand how BAME consumers experience access to justice and the service they receive from legal providers. This follows on from previous work the LSB has undertaken, which spans the best part of a decade.

A regulator’s role in trying to encouraging a more diverse profession

It is just over nine years since the LSB first published guidance under section 162 of the LSA, “for the purpose of meeting the regulatory objectives” and well over a decade since the LSB first began to think about its role in this regard. In this guidance document - “Gathering an evidence base about diversity across the legal workforce and promoting transparency at entity level” - the LSB made clear what it expected of approved regulators to meet this regulatory objective and the approach it expected them to adopt.

Given the clear guidance by the LSB and the timeframes involved, perhaps we would expect the profession to have made more progress than it has. It is therefore not surprising that the LSB is now seeking to once again step in to ensure there is a commitment from the frontline regulators to make further progress in respect of diversity and inclusivity within the profession.

The Chair of the LSB, Dr Helen Phillips, has recently said that following ‘years of limited movement’ over the issue, her organisation will “use its oversight role more effectively to ensure change”. And since the start of 2020, the LSB has been working to better understand how regulators such as the SRA and BSB are performing in this area, and specifically what understanding they have of the longstanding and ever-present barriers to entry and progression. According to Phillips, results thus far have been “disappointing” with only three bodies – BSB, ICAEW and SRA – able to show they understood the composition of those they regulate. Although most regulators showed they understood the barriers to entry, there was little evidence they were using this knowledge to address the issues. And indeed, for me, this is where the problem lies.

An additional area where the LSB considers the regulators need to better understand the data is in relation to disciplinary and enforcement procedures and specifically whether these are disproportionately impacting certain groups of individuals. As things stand, Phillips stated that ‘no regulator was able to demonstrate that they currently have a comprehensive understanding of whether their disciplinary/enforcement procedures disproportionately impact certain groups.” To not yet have this understanding in the amount of time that has passed is hugely disappointing, particularly in relation to the SRA which publically committed to improving its analytical capabilities in this area following the recommendations set out in the Independent Comparative Case Review (ICCR) of EDI in SRA enforcement prepared by Professor Gus John back in 2014 – six whole years ago.

So, what has the regulator of law firms said in respect of EDI?

The SRA sets out key obligations in respect of encouraging EDI and prohibiting discriminatory behaviour in its recently launched Standards and Regulations (StaRs) and in March 2020, it published its five year review of work it has undertaken in this area. The SRA states that its work over this period has been influenced by the findings from the ICCR. The SRA commissioned Professor John in 2012 to carry out this review and he published his report in March 2014. This focused on the overrepresentation of black, Asian and minority ethnic (BAME) solicitors in some of the SRA’s disciplinary outcomes. Professor John analysed SRA data, reviewed its processes and considered complaints that had been made, finding no evidence of discrimination. However, he did find evidence of disproportionality at all three stages of the disciplinary process: when a complaint is raised, during the investigation, and at the point when a sanction is imposed. Between 2009 and 2012, BAME solicitors made up 13% of the entire profession but accounted for 25% of new conduct investigations. His report recommended some improvements the SRA could make to its processes and considered some of the external factors that may be responsible for a higher proportion of BAME solicitors being brought within the SRA’s investigation and disciplinary work.

The SRA has recently committed to publishing a report later this year, detailing what proportion of solicitors who are referred to the Solicitors Disciplinary Tribunal are from minority ethnic groups. Additionally, the SRA has recently launched an interactive diversity tool and set out its key findings in respect of diversity within law firms based upon data from Summer 2019. The tool has a number of useful filters to compare statistic relating to various diversity categories, including comparisons of the data between firms of different size and work specialism. The SRA has also included data for in-house solicitors as a comparator, where that data is available. Good work some might say; but perhaps many more would say what has taken so long given it is more than six years since the John report was published.

Still so much to be done

You could say that the LSB is flexing its muscles with a genuine hope of bringing about much needed change. And this cannot happen quickly enough. But realistically the responsibility for change cannot fall at the doors of the LSB and to a large extent, not even at the doors of the regulators. We all have to take responsibility for bringing about change, both in terms of adherence to our regulatory and ethical obligations but more importantly in respect of our own moral compasses and the fundamental values we display as human beings.

Law firms have to play a huge role in all of this even to the extent they can influence the ethical behaviour of their workforce and encouraging individuals to display the values of the firm. Much like the gender gap, there is still a substantial discrepancy in BAME partners and trainees at larger law firms in that both black and Asian lawyers are significantly underrepresented in mid to large size firms (those with six or more partners). This is interestingly contrasted with single partner firms, where just over a third (36%) of partners are BAME individuals (up 2% since 2017). The rate of increase in BAME partners in one partner firms from 2014 to 2019 (38%) is more than twice that of firms with 50+ partners (14%). However, when considering seniority differences among BAME lawyers, there is actually very little difference. As of 2018, 21% of solicitors are BAME compared to 20% of partners. This has been followed by a significant increase in the proportion of BAME lawyers working in law firms in general, now one in five. There has been a steady increase since 2014 (14%) to 2017 (21%). One possible explanation cited for this in reporting is the increase in lawyers of Asian origin, up from 9% in 2014 to 15% in 2019. Asian lawyers make up over two thirds of BAME lawyers.

This contrasts starkly with the figures for black lawyers who make up only 3% of lawyers in the UK, this figure having risen by only 1% in six years (since 2014). This needs to change and that change needs to start from now. Not five years on from now, with us looking back and making more excuses for why change has not happened as quickly as we would have liked.

Our black lives matter / Bame blog series

As a firm, we have had many discussions about Black Lives Matter and how we can make a difference to the movement. We wanted to do more than just put out a statement of support, we wanted to take substantive action to address the inequalities faced by Black people and other ethnic minorities. Over the coming weeks, we will be publishing a series of blogs from our varying practice areas highlighting what we are doing, how you can make a difference and shining a light on the issues.

Our Diversity and Inclusion group is working hard with Human Resources and the Management Team to effect change through methods such as training and reviewing recruitment practices.  We have implemented a lot of change but we recognise we have more to do and we are always looking to make improvements as a firm.  We all have respective roles to play in advocating for issues of inequality and we hope our blogs give you some inspiration as to how you can make a change.

About the author

Jessica Clay is a Senior Associate in the Regulatory department and specialises in legal services regulation, with a focus on regulatory compliance, legal ethics, investigations and public law matters.