Breaking through ceilings: diversity in the law

First published by The Lawyer on 16 November 2015

In the five years since The Lawyer published its first diversity report, much has been done to promote and improve diversity across the profession. Firms at the top of the market have formalised and integrated diversity programmes while others from across the spectrum have found ways of making their organisations more inclusive places to work.

From disability networks to gender targets, unconscious-bias training to blind recruitment policies, there has been no shortage of initiatives aimed at making the legal profession more representative of the communities it operates in and, crucially, more reflective of the clients it serves.

But at the most senior level the efforts have had little impact, with partnership at the top 200 UK firms still by and large the preserve of privately educated, heterosexual, white males.

Client influence

The legal profession was late to the diversity party, with the issue going largely unrecognised until high- profile clients began questioning why their legal advisers did not look and sound the same way as they did.

In-housers such as former Transport for London (TfL) general counsel Gareth John and JP Morgan managing director and associate general counsel Tim Hailes were at the vanguard in this respect, demanding in 2007 that prospective panel firms provide break-downs of their diversity profiles and give reasons as and when any diverse candidate left their partnerships. While this prompted firms at the top end of the profession in particular to put formal diversity programmes in place, figures from The Lawyer’s UK 200 2015 reveal that just 22 per cent of all partners at the top 100 firms are female – representing no shift at all in female representation over five years – while data collected for The Lawyer Diversity Audit show that at partner level the profession lags the general population on all key diversity metrics. This is despite firms taking on much more diverse cohorts at the junior end.

When it comes to strands like social mobility, sexual orientation and disability, part of the problem is disclosure, with firms’ statistics unlikely to be a true picture thanks to the large swathes of partners who choose not to reveal their status, even anonymously.

Yet for the most visible strand of diversity – gender – firms are still struggling, with the lack of enough role models at the top of the profession counteracting much of the positive work that has been done around target setting, mentoring and normalising flexible working.

“Women aren’t leaving the firm more than men, but there’s a huge piece about how attractive partnership is,” says Herbert Smith Freehills (HSF) diversity and inclusion head David Shields. “If you’re ambitious and see only 20 per cent female partners globally then you might think ‘partnership isn’t for me; can I be a partner and actually have a work-life balance?’.”

As a result women are taking themselves off the partnership track right at the beginning of their careers, long before most firms have given them all the information required to make an informed decision. They are, says Shields, essentially “leaving before they leave”.

Even at firms that have taken steps to address that anomaly, pairing junior lawyers with partners through mentoring schemes and encouraging senior women to be frank about how they juggle work and family life, the fact that women are so under- represented is in some ways proving to be self-perpetuating.

“They [junior lawyers] look at these women and think ‘they’re exceptional, I couldn’t be like that’,” says Alison Unsted, head of diversity and wellbeing at Hogan Lovells. “We try to normalise some of these women, but it’s not working yet.”

High business priority

Five UK 200 firms stand out as diversity champions for the way in which they have not just tackled the issues that have given rise to a socially constrained profession, but have woven diversity and inclusion into their strategic priorities too.

On the one hand it would be inaccurate to say that the five – CMS, Herbert Smith Freehills (HSF), Hogan Lovells, Linklaters and Pinsent Masons – are the sector’s most diverse firms. A look at their diversity audits shows that all have partnerships that are at least three-quarters male, not a single Hogan Lovells partner has yet admitted to having a disability, and Linklaters’ partners are three times more likely to be privately educated than the population at large.

Yet on the other they are all pouring not just resources but also partner time and commitment into transforming diversity from a nice-to-have HR project into a business-critical issue. In addition to having networks focused on all the main strands of diversity, each has strong diverse role models in high-profile positions, all five have put aspirational targets in place to improve gender diversity in their partnerships, and all have made diversity a board-level issue.

This, says Pinsents partner and diversity steering group chair David Isaac, is key.

“This is about the business case for diversity; about getting the best possible talent into the firm,” he says. “I used to be chair of [gay-rights charity] Stonewall and when I was there we worked out which sectors needed to change and legal was one of the main ones. I felt that as chair, pushing other sectors to change we should lead by example so I persuaded our board to get on board.”

Hogan Lovells partner and global diversity committee co-chair Ruth Grant agrees that partner buy-in is essential and points out that her firm spent the past three years raising awareness of diversity issues across its entire network before embarking on a new three-year plan aimed at embedding diversity across all practices and geographies.

“Diversity is a subject that you can do at all sorts of levels and can appear to be doing well by just doing ‘stuff’, but experience shows that just doing stuff doesn’t really work, you have to embed diversity issues in the firm and that particularly means among partners as a group,” says Grant.

“We had a diversity plan from 2012-15 that was very much about building focus and awareness. We didn’t want anyone to be able to say ‘what’s diversity?’. This year we agreed a new plan with a number of strands, but the fundamental issue is around embedding and action planning.”

Forget the numbers game

According to CMS diversity and inclusion partner Daniel Winterfeldt, when firms realised a decade ago that diversity was an issue that they should be dealing with, they “started hiring 50 per cent women and thought that by waiting 10 years it would sort itself out”.

That it hasn’t may have come as a surprise, but it has also sent the kind of wake-up call needed to influence how the most progressive firms think about all strands of diversity.

Isaac at Pinsents points out that many firms “have been throwing money at things and taking part in conferences” in a bid to highlight their diversity credentials. The more savvy are no longer viewing diversity as a demographical issue, though, with inclusion now the watchword for those pushing the diversity agenda.

The change in language is key, not just for defining what a diversity programme is all about but for ensuring that the people who hold the power in firms – the existing partners – buy into it too.

Unsted at Hogan Lovells points out that while partners can see diversity as being a numbers-oriented issue, they can relate to inclusion as a concept because it centres on the way people are treated.

Shields at HSF agrees, noting that at a recent panel event the overall feeling among male participants was that anyone who believes in fair play would be a champion of gender. Playing to this sense of fair play, HSF has now made diversity and inclusion a strategic objective, with the firm prioritising gender, LGBT and multi-culturalism issues on a global basis.

Shields says that lumping the strands together has helped bring about a change in mindset, with partners able to relate the inclusion – or exclusion – of one group to another.

“The biggest challenge is the engagement of the total partnership,” he says. “Having senior management on board is fantastic and we’ve got seven diversity networks that have partner co-sponsors so they have really visible leadership, but we’re not at the point where the entire partnership has a role within making the firm diverse and inclusive.

“We made a commitment across all diversity strands because if it’s just gender there’s a risk of some males having the attitude ‘I’m a man, it’s got nothing to do with me’. If you’re engaging on disability and faith too it has a wider impact because partners relate to it on a friends and family basis – they might have a son who is gay, a daughter-in-law from a different ethnic group or a friend who is disabled, for example.”

Linklaters global diversity manager Daniel Danso echoes this sentiment, saying: “It’s about making an actual connection for people on how these things affect their work and affect them personally.”

Inclusivity = stronger

But why does diversity and inclusion matter? If firms are doing good work and their businesses are thriving, is it really important if their partnerships are predominantly male, white and heterosexual?

Unsted at Hogan Lovells believes so, and not just because having a diverse workforce is ‘nice’ or the ‘right’ thing to do, but because not accessing the widest possible pool of talent could ultimately be damaging to a firm’s business.

“Diversity is not a nice community-type project – it’s about the business and there are very good reasons why as a business we should be focusing on this,” she says. “As a law firm you’re selling your people so you want to attract, retain and advance the best people. We can say we’re doing well at the moment, but if we’re losing some of our very best people at the early stages, could we be doing a lot better?”

Danso at Linklaters agrees, stressing that as firms push ahead with their global ambitions their client lists will become more international in nature, making it more important than ever for firms to be staffed at all levels with people from a multitude of backgrounds.

“We’re global, our clients are all over the world and we need to have people who reflect the values of our clients,” he says. “If you have the same types of people, they will have the same attitudes to risk and the same knowledge bases. Having diversity of experience helps you get into areas that you wouldn’t be able to get into if you were all the same.”

Many firms have cottoned on to this and have turned to organisations such as Rare Recruitment, Sponsors for Educational Opportunity and Aspiring Solicitors to help them attract diverse talent at the bottom end, a process that has been enhanced by the use of contextual recruitment and CV-blind policies.

While this is creating a more diverse population of trainees and junior associates (Hogan Lovells’ non-partner legal staff, for example, are 17 per cent BME, 3 per cent LGBT, 7 per cent disabled and 57 per cent female), these recruits are not typically progressing to partner level. That matters because, as Danso says, if a firm’s powerbase remains in the hands of the same group of people it will not ultimately have all the tools at its disposal to really compete.

Retention and progression conundrum

And therein lies the fresh diversity challenge for firms. Hiring enough diverse candidates to tick every box that’s going is one thing, but if they are not being retained or progressed – in other words, included – is it all just an exercise in futility? Winterfeldt at CMS thinks so.

“We’re diverse at the bottom end but if we’re not able to retain them why recruit them in the first place?” he asks. “There’s a lot of work going on in diversity but it’s not bringing about the change we need. We’re not seeing change in how management works or in promotions and advancement. There are some law firms where partners sit around a table and decide promotions before the assessment period has even begun. It’s all done informally.”

Firms are beginning to address this by rolling out unconscious bias training to their partners, the hope being that once they are made aware that everyone is naturally drawn to people from the same backgrounds and with the same experiences as them, partners will think more objectively when assessing candidates for promotion.

Yet while an afternoon workshop is probably not enough to reverse the influence of a lifetime’s worth of experiences, Winterfeldt believes that management training should be offered to lawyers right at the start of their careers to instil good management practices right from the off. “No one ever trained me how to manage five trainees – we fail at management from the very beginning,” he says.

For Isaac at Pinsents, though, the onus is not just on firms to drive change from within: the very people who spurred the profession into action in the first place – the clients – have to bear some responsibility for holding their advisers to account.

“Clients don’t really use their critical power to drive diversity in the way they should,” he says. “When we do pitches they say ‘we take diversity seriously’ but then they still appoint Slaughter and May on a big corporate deal. It’s that kind of timidity that needs to change. They’re the ones that ultimately call the shots.”

Attitudes towards diversity have come a long way since TfL and JP Morgan forced it into the profession’s consciousness, but will it really take clients turning away from firms to make partnerships realise that diversity and inclusion is as vital to their business as reputation and culture?

With thinking on the matter remaining entrenched, it seems it might. As Hogan Lovells’ Unsted says, “diversity is seen as important by everyone but just not critical and that’s the problem”.