Making Work, Work

Law firms should be focusing on growth through diversity in their workforce, challenging the legal industry’s appalling status that means it needs to catch up with other industries on diversity. While women make up 47% of all lawyers, this number falls to 33% when considering partners. Cultivating an inclusive and diverse work culture in the law is a social justice issue, but it can make a real difference to the global growth and financial performance of a firm. At Obelisk Support, diversity in the legal profession (or the lack thereof) was the very reason we were founded in 2010 and it still makes total business sense for us. This could be anecdotal but it’s not. It is reinforced by the statistical findings of a January 2018 McKinsey report, Delivering through Diversity.

An organisation cannot aspire or claim to be global without true inclusion and diversity (also referred to as I&D) throughout each level. Often I&D in the workplace is talked about in terms of targets and numbers, but it shouldn’t be just about bodies; there needs to be a clear and thoughtful approach to creating a diverse working culture and inclusive leadership.

Why Diversity is So Strongly Linked to Financial Performance

Why should firms concentrate so much of their efforts on growth through diversity? The link between diversity and company growth is not an unexpected one: A company can only really claim or aspire to be global with a global and diverse team to drive them. By employing people of different ethnic and social backgrounds, you bring in a broad range of talent and viewpoints to help gain better understanding of different markets, clients and societies at large.

In the McKinsey report, companies in the top quartile for gender diversity and ethnic and cultural diversity were 15% and 35% more likely to experience above average profitability. Exploring this correlation further, the more gender diversity within an executive team consistently correlated with higher profitability. Overall, companies in the bottom quartile for both gender and ethnic/cultural diversity were 29% less likely to achieve above-average profitability.

McKinsey’s hypotheses about what drives this correlation are that “more diverse companies are better able to attract top talent; to improve their customer orientation, employee satisfaction, and decision making; and to secure their license to operate—all of which we believe continue to be relevant.” 

An ethically and gender diverse workforce attracts the top talent as it brings fresh perspectives from global enterprises and structural philosophies. Diversity brings first hand experience of other cultures and ways of working that can enrich and improve an organisation’s approach to all aspects of their work, from workplace culture to communications, client relationships to hierarchies and departmental structure.

Expanding Measures to Improve Diversity in the Law

Ethnic and gender diversity in the law still lags behind many other sectors. As frustrating as it might be, the industry is still trying to figure out the best approach to incentivising and encouraging diversity in the law. The typical starting point is targets, however it has been argued that targets in the judiciary are not effective. Writing in The Times, David Pannick QC states that though he agrees the lack of diversity of ethnicity age and gender present a real problem, but he believes targets would only serve as a distraction.

To some degree he is correct: there is little sense in implementing national targets when the focus should be on the factors that are not just preventing people entering the law, but also staying and progressing in their career. Going further than targets, some companies introduce incentives and punishments such as HP’s diversity mandate, which we previously discussed here. However, targets and incentives should not be the first point of call. We need to answer the questions as to why women are disproportionately leaving the law to have children/care for family. Also the motives need to be correct: with targets in place there is less focus on an organisation adapting to ensure it is a good environment for a diverse workforce and making the best use of that talent, and simply reduces it to good representation on paper.

How to Successfully Implement a Diversity Strategy

Diversity can be incentivised, but this needs to come with true inclusion and a vision for growth. This is a slower process focusing on the culture and attitudes within the organisation, and approaching the issue from a business perspective as well as a social justice concern can be more effective. The suggestions put forward in the McKinsey report for implementing a successful strategy for diversity are:

  • Commit and cascade. CEOs and leaders must articulate a compelling vision, embedded with real accountability for delivery, and cascade down through middle management. This commitment can be solidified by making a formal pledge, such as the CEO Action Pledge for Diversity & Inclusion in the USA, which was started by a group of business leaders including the US chairman of PwC.
  • Link I&D to growth strategy. The I&D priorities must be explicitly defined based on what will drive the business growth strategy. Leading companies do this in a data-driven way. This fascinating Forbes report on Innovation through Diversity features examples and case studies from companies such as L’Oreal, Deutsche Bank and Mattel demonstrating how each have leveraged I&D priorities to meet their business innovation goals.
  • Craft an initiative portfolio. Initiatives in pursuit of the I&D goals should be targeted based on growth priorities, and investments made to both hard- and soft-wire the programs and culture of inclusion required to capture the intended benefits. Examples of initiatives employed by large corporations include Intel’s Diversity in Technology Initiative and Ericsson’s participation in TechWomen. Initiatives can be applied to smaller organisations at a local level too.
  • Tailor for impact. I&D initiatives should be tailored to the relevant business area or geographic region context to maximise local buy-in and impact. If your firm deals with more than one locality or business area, initiatives need to be tailored, taking into account the priorities and/or cultural differences within each. This is where local, first hand expertise becomes vital, and it may be worth considering employing the services of a diversity consultant to ensure these are applied successfully.

All of these things can be applied to legal services and the judiciary. A clear commitment to reducing barriers to diversity from the top, recognising those values as being key to future success and global impact, and implementing a range of initiatives and targets once the problems and barriers in each sector have been identified and have begun to be addressed. Diversity in the law is in danger of being reduced to another buzz word, when it is central to performing better as lawyers, and being better as humans first.

Women in Law

The judiciary was once a male-only bastion. Times have thankfully changed and with that, the female presence in the Scottish (and indeed U.K. judiciary) has markedly increased. Obelisk consultant Nicola Evans explores the history and progress of women in the judiciary.

In times gone by, access to the legal profession was governed by three factors: Gender, social class and wealth.

In Scotland, 1901, Miss Margaret Howie Strang Hall petitioned the court asking to be admitted as a member of the then-termed Incorporated Society of Law Agents. The courts refused, referring to the Romans refusal of allowing women to act at prosecutors. It was not until 20 years later that Miss Madge Easton Anderson became the first woman solicitor in Scotland and a further two years until Miss Margaret Kidd became the first woman advocate. Incredibly, Miss Kidd remained the only female advocate until 1948.

Judge Selection Process | Overdue Overhauls

Both England and Scotland have, relatively recently, had a considerable overhaul of the selection process for judges. Judicial selection is now much more transparent. In Scotland, the Judicial Appointments Board was introduced in 2002 and as its website states it was designed ‘to bring transparency to the selection process and to build a system in which the public, the profession and the politicians can have trust and confidence.’
In England, the Constitutional Reform Act 2005 established the Judicial Appointments Commission, which is now responsible for appointing judges. The 2005 Act specifically states that appointments must be made solely on merit.

However, the U.K. still has one of the lowest proportions of female judges on its benches, according to a report by the Council of Europe. If we take a closer look, we see the Scottish legal system continues to struggle with equality in terms of appointments. As of 2016, there were only 125 women working as advocates (who represent clients in the higher courts) out of 462 people who are members of the Faculty of Advocates.

Of Scotland’s 113 QCs, only 21 are female. Further, of the 31 judges in post only nine are female. Europe-wide, systems with the lowest percentage of women among professional judges were Azerbaijan (11%), Armenia (23%), Northern Ireland (23%), Scotland (23%), England & Wales (30%) and Ireland (33%), with an overall average of 51% in Europe.

Female Judiciary Role Models

There are several inspirational women of note in the judiciary. In England, Lady Hale was appointed Deputy President of The Supreme Court in June 2013. In January 2004, Lady Hale became the United Kingdom’s first woman Lord of Appeal in Ordinary after a varied career as an academic lawyer, law reformer, and judge. In October 2009 she became the first (and remains the only) woman Justice of The Supreme Court. As such, Lady Hale is the most senior female judge in the United Kingdom.

Lady Dorrian QC was appointed to Scotland’s second highest judicial post as Lord Justice Clerk in 2016. This appointment made Scottish judicial history as no woman has served at this level prior to this. Lady Dorrian, a graduate of the University of Aberdeen, was admitted to Faculty of Advocates in 1981 and served as Advocate Depute – the first woman to hold the position – between 1988 and 1991, and became a QC in 1994.

Lady Hale is a regular speaker about issues such as feminism, equality and human rights – and has notably been happy to be open about the ‘imposter syndrome’ that she has experienced. This characteristic affects more women than men and is the feeling that despite academic and professional success the person will be found out to be a fraud. Many studies have looked at this and found it to be a natural symptom of gaining expertise.

Success for Women in the Judiciary

Lady Dorrian has referred to only a modest amount of sexism in own her career – and that was largely in the sense that it was simply less familiar to have women appearing in court and conducting cases. She does not attribute her success to having a particularly pioneering attitude, but simply to working hard and taking opportunities that seemed sensible.

It is interesting to note that both Lady Hale and Lady Dorrian almost seem to downplay their respective success in the profession: a characteristic that people who ascend very hierarchical institutions often exhibit. Sheryl Sandberg’s bestselling book Lean In: Women, Work and the Will to Lead looks at this tendency and unsurprisingly, many of the case studies are female.

Family-Friendliness | the Bar vs Private Practice

Although not necessarily an easy option, the Bar has been considered a more ‘family friendly’ career option than private practice. Roisin Higgins QC, commented in the Scotsman newspaper that far from being a hostile environment to female advocates, there is the suggestion that for women hoping to combine a legal career with family, advocacy might offer the most family friendly path.

Remaining Challenges for Women in the Judiciary

Lady Dorrian has pointed out the real ‘challenges’ facing the future of the profession in relation to its composition, access to it and progression within it. In a recent conference, ‘Equality means Business’ in Edinburgh in May 2017, Lady Dorrian highlighted that the legal profession as a whole should be representative of the society which it serves. Without this diversity, the profession runs the risk of not being able to offer access to justice for a wide range of practice areas (often the poorly funded areas) or for a wide client base. To be respected, the legal profession has to reflect the society it represents.

Accordingly the benefits of putting equality and diversity as the focus of the profession, she points out, isn’t just about doing the right thing but is enshrined in legislation, putting duties of equality on the shoulders of employers and public authorities.

The profession should take heed and retain talent by constantly seeking to ensure it is nurtured in the correct way.

Nicola Evans has a background in commercial law having worked  in-house for an international company and also having lectured in law. Nicola works as a Consultant for Obelisk Support, specialising in commercial law and providing remote, flexible services.

Making Work, WorkWomen in Law

We often talk of the challenges and obstacles that stand in the way of diversity in the legal profession, so it is but it is important to also look at the achievements and positive trends to inform and inspire future progress within the industry. Encouraging more diversity in recruitment is just one aspect of this progress – alternative business structures and a culture rethink is required to retain diverse legal talent. Here at Obelisk we work to lead by example and change the culture of the legal services industry to create a flexible working model accessible to all.

In June, there were some encouraging trends coming out of the UK Law Society’s annual statistic report, showing that the number of BAME and women solicitors is on the rise. Solicitors coming from Black, Asian, and minority ethnic (BAME) backgrounds now make up 16% of the profession, and 57% of these are women, in contrast to 48% of white solicitors who are women. Overall for 2015-16, 62% of admissions were female, up from 53% 15 years ago.

What Firms Must Do Address a Lack of Diversity in the Legal Profession

Any private practice or other public company who is actively working to tackle the complex issue of diversity is to be celebrated. Working to minimise recruitment bias, tapping latent and underused talent and incentivising company diversity are just some of the key areas of focus for diversity programmes and innovations. Some specific, high profile examples that have been particular talking points in the legal profession include HP’s diversity mandate that withholds a percentage of fees from firms who do not meet their set diversity requirements, previously discussed here in the Attic.

Another example is Nixon Peabody, which has adapted its approach to recruitment – ensuring that 20% of candidates called are diverse (the definition of a diverse workforce for Nixon Peabody CEO and managing partner Andrew Glincher includes all – BAME, women, LGBTQ) and first candidate called for leadership position is diverse if equally qualified for the position. The firm has earned a 100% ranking from the Human Rights Campaign in its Corporate Equality Index for ten consecutive years.

Talent retention

Of course, it’s not just about attracting talent to create a more diverse workforce, but also to maintain a culture that retains such talent. In fact, it can be detrimental to the success of a diversity programme if the focus is too much on recruitment and hiring. Firms need to look at the whole picture and focus on changing the mindset in recruitment, investing in people who want to build their careers and develop with a company long term.

Work that works for everyone

The profession needs to acknowledge individual difference and recognise that people’s needs will change over time. They need to work closely with those talented individuals and use their experience to inform company decisions, recruitment and training in future. Rather than expecting individuals to come in and adapt to an existing culture they should have a role in shaping it for the better. There are signs that this concept of a total change in culture and working patterns is becoming more popular, with the Law Society survey reporting that 475 alternative business structures (ABSs) were in operation: 116 more than a year earlier making up 5% of all firms.

Adapt or be gone

When it comes to diversity measures conversations often turn to criticism of so-called positive discrimination. It’s important to be clear that levelling a playing field and creating a working culture that allows everyone to progress in their career no matter what their background or personal situations. Nobody loses out if more people are more meaningfully able to compete and challenge one another – we all do better when the game is fair, and more of society is reflected in institutions that represent them. As Law Society president Roberts Bourns puts it: “Firms with good diversity, inclusion and social mobility policies have a competitive advantage… Not only do solicitors themselves come from an ever widening pool – reflecting the diverse society of which we are part and which we serve – but new business models are flourishing, allowing us to provide an ever more tailored service to our clients.”

The progress we’ve seen shows there are many steps in the right direction. But the rise is diversity in the industry globally is slow, and it is important to remember that law remains the least diverse profession in many countries, including the US. It is vital to see more leaders actively tackling the issue, and championing alternative ways of working to retain talent and create a more open and accessible industry.

Making Work, Work

We watched with interest recently as the debate unfolded around HP director Kim Rivera’s direct action on diversity in law firms. HP’s diversity mandate goes further than stating they require diversity from outside legal staff, declaring the company will withhold a percentage of fees from firms who do not meet those requirements.
The move is something of a step up from measures that seek to incentivise diversity. It’s also more direct than advocating for organisational quotas or targets, where little consequence exists if companies fail to meet the requirements laid out. It’s little wonder then that the mandate has been met with some consternation by commenters, who see it as a punishment and a step too far. Rivera has responded to this criticism by emphasising that the measures are not intended to be punitive – rather they are an additional incentive; one that has been openly discussed and embraced by outside companies and collaborators of HP.

The Short Game

So are penalties the next step in encouraging more diversity in law? Should we be considering, if incentives don’t seem to be having the desired effect (and progress remains slow), more measures to drive change forward? Is it a natural progression that companies who are committed to diversity are employing extreme alternatives that actively penalise organisations for not paying enough attention to their own diversity profile? Or should there be another way?

There is a need for both a long game and more immediate action. We need more representative boards and visible diverse faces in law right now, to lead by example and act as mentors to others coming up the ranks. However the long game is essential too; quotas and incentives are tools that are used, but change seems very slow. So, the use of a financial penalty is being used as a tool to hit law firms where they will take notice and thus drive change much more actively.

The Long Game

Inclusivity can be tackled by education, and changes in working culture are both aspects that are worked on behind the scenes. These will not generate headlines and has a ‘slower’ burn effect, but it is essential action to make business more open and accessible to everyone, whatever their background, gender, race, or current social situation. Solutions such as HP’s diversity mandate are more ‘explosive’ in their impact both in terms of news and direct effect but may well be more effective. If greater commitment to diversity in law is the aim – a mix of actions which put it back into the spotlight are being tried – a ‘means justifying the ends’ may be the correct approach. It is interesting that HP (a client of law firms) is seeking to exercise its purchasing power to drive the diversity agenda forward in a separate organisation.

The long game also requires better recruitment practice, and a focus on working practices, shared parental responsibility and flexibility. The main problem with many corporate policies approach is that many are focusing on training in diversity as a separate strategy or problem, rather than looking at overall culture and changes required to allow diversity to thrive and benefit all within the organisation. It’s about finding the balance between enforcing standards and creating a working culture that is open to all. If we focus our efforts on removing obstacles to work, rather than expecting people to work around them, we can move towards a time when quotas and targets will no longer be needed.