Scotland: Art of the possible

First published by Legal Business on 29 July 2019

There has never been a better time to be a woman in law in Scotland. Wherever you look there are women filling roles that had previously appeared closed to them: at the head of the solicitors’ profession Lorna Jack has been chief executive of the Law Society of Scotland since 2009; in the judiciary Lady Dorrian has been Lord Justice Clerk – the country’s second-most senior judge – since 2016; and at the bar Angela Grahame QC has been vice-dean of the Faculty of Advocates for three years, the second woman to hold the role but the first to have been competitively elected to it.

At the same time practically all the big independent firms are now either led or co-led by a woman, many for the first time in their history. At Brodies chairman Christine O’Neill works alongside managing partner Nick Scott; Burness Paull is co-led by managing partner Tamar Tammes and chairman Peter Lawson; and Morton Fraser chairman Maggie Moodie manages the firm along with chief executive Chris Harte.

On top of that, the chairmen at Balfour & Manson, Gillespie Macandrew and Ledingham Chalmers are all women (Elaine Motion, Fiona Morton and Jennifer Young) while at Aberdein Considine and Turcan Connell the respective managing partner roles are filled by Jacqueline Law and Gillian Crandles. Then there are all the female chief operating officers and finance chiefs, the office heads and practice leads. The list, seemingly, is endless.

There are many reasons why these women all happened to be in the right place to be taking up these positions at the same time. Recent advances in technology have given them more freedom than any preceding generation to pursue the path to seniority while also maintaining home-life commitments. Events such as the financial crash have taken much of the machismo out of the sector, allowing female voices to finally be heard. And the MeToo movement and gender-pay gap reporting have brought equality issues to the foreground, something more and more buyers of legal services are taking note of.

It is the convergence of these factors that has led to an increased focus on diversity across the profession, with Shepherd and Wedderburn diversity, development and inclusion head Yvonne Brady noting that the changes in leadership now being seen “are a manifestation of that work”.

“Those firms with a genuine commitment to encouraging a more diverse profession have been taking steps to tackle the barriers to female career progression, such as embracing modern agile and flexible working practices, harnessing technology that helps women – and men – better balance their work and non-work responsibilities and recognising both the social and commercial benefits of diversity,” she says.

In my shoes

While this is the first point in history when there has been an abundance of women in senior roles, women have been achieving high office in the Scottish profession for many decades. The first female partner was admitted in 1949, the first sheriff principal was appointed in 1960 and the first Court of Session judge in 1996. The difference now is that the senior women are no longer seen as singular and their achievements unattainable, but rather they are viewed as normal and their accomplishments emulatable.

This matters because, as Janette Speed, head of Shoosmiths’ Scottish practice, says, “role models are the fundamental piece of the jigsaw”. “Once you have that and they are able to empower and bring on younger women, and show them a way of working that hasn’t necessarily gone before, women can see they can do this,” she says.

Clyde & Co Glasgow partner Frances Ross agrees, noting that “if you’re a lawyer starting out in your career and thinking about where it may take you it helps to be able to see people you can relate to who have achieved the things you would like to achieve”.

O’Neill at Brodies has first-hand experience of this, having joined the firm at a time when the role she currently holds was filled by Joyce Cullen, a woman with a reputation not only as an outstanding – and likeable – manager but as a formidable litigator too.

“I’ve always taken the view that so far as Brodies is concerned it’s been a long time now since we got to a place where we’ve had very strong female representation,” O’Neill says. “I came in in 2000 and when I arrived I could always see very strong role models in the business.”

For Motion at Balfour & Manson this has been almost as important a sea-change as the one that has seen men concede the importance of working alongside women in senior roles, with the singular women of the past not always willing to lend a hand to those coming up behind them.

“I was criticised for being a mother and a partner and there were women in the past who did not like other women coming up to work alongside them,” she recalls. “That has changed dramatically over the past 10 to 15 years.” 

That, Motion believes, sends a “massively, massively positive message”.

“I had nobody who I could use as a role model or a mentor when I was a young solicitor; I just had to get on and plough my own furrow,” she says. “Now there are really senior women in big roles and it’s sending a message that you can do both – you can have a family and a life and you can have a career. Psychologically, if young women can see it being achieved they can see that they can get to those positions too.”

Role modelling and other measures certainly appear to be having an impact. Figures from the Law Society of Scotland show that women – who have long accounted for around 70% of law school and law firm intakes – currently make up 54% of all solicitors on the roll, up from 38% in 2001.

Yet scratch beneath the surface and it is clear that, despite the progress and despite the current levels of representation, there is still a lot more to be done, with women remaining woefully under-represented at partner level, at the bar and in the judiciary.

Indeed, despite the proportion rising by seven percentage points in the past two years, women still account for just 32% of all Scottish partners while 27% of advocates, 18% of silks, 23% of sheriffs and 29% of Court of Session judges are female.

As Jack at the Law Society of Scotland says: “Angela Grahame QC is the second female vice-dean of the Faculty of Advocates, but they’ve never had a female dean. We’ve got the first ever female Lord Justice Clerk, but we’ve never had a female Lord President and none of the four Scottish judges that have sat in the Supreme Court have been women.”

Though there have been problems in the past with some men not wanting to give ground to women, and some women not wanting to push for that ground, the main reason there has been a lack of female representation at the highest levels is that women have by and large been leaving the profession before they could get there. The reason for that is simple: women still take on the greatest share of childcare responsibilities.

When she took over as managing partner of Turcan Connell earlier this year – the first woman to hold the role in the firm’s 20-year history – Gillian Crandles was very clear about the reason why, despite having risen to the top of the firm herself, she was still one of just four women in a 24-strong partnership.

“This is not so much a gender thing as a family thing,” she said. “It’s about who is looking after the children – whether you are male or female – and that’s something we need to get better at.”

To address the issue she has been instrumental in overhauling the firm’s maternity policy as well as its flexible-working options, something she believes will be of benefit to both the men and women looking to take on senior roles in the business.

Ms Crandles is not alone. After succeeding Linda Urquhart as chairman of Morton Fraser in 2017, Maggie Moodie spent the first year of her tenure establishing a formalised agile working programme that has been adopted by around half of all staff. When surveyed about the impact it had made, the vast majority of those working in an agile way (83%) said it had improved their overall sense of wellbeing, something Moodie believes is vital if staff are going to be retained.

“We thought and believed it would help people’s sense of wellbeing and help them balance their work lives with their lives outside work, and ultimately that would keep us providing a great service for clients because people that look after themselves look after their clients,” she says. “That has filtered through with a really high percentage reporting that this has had a positive impact on their sense of wellbeing. That was always really important to me.”

Crucially, from Ms Moodie’s point of view, both men and women have taken the opportunity to work in this way, with the benefits of agile only likely to be seen if it is not just normalised in the workplace but reciprocated in the home too.

“It’s very important that this is not just for women,” she says. “Men have traditionally had a hard time wanting to spend time with their kids or elderly parents or just being at home enough – its crucial to remember that.

“[If you’re in a relationship] and one partner has this flexibility and the other one doesn’t that’s not good for either partner. You can’t free up just one because all that will happen is that they will end up taking on the vast majority of the household tasks.”

Staying flexible

Most large firms now have similar schemes in place but the Scottish Government has urged the entire profession to follow suit, with community safety minister Ash Denham telling all firms that flexible-working practices should be adopted as a means of achieving a 50:50 gender split in their senior ranks by 2028.

“Anything which legal professionals or new entrants to the sector could perceive as a barrier to entry or progression is unacceptable, which is why I am calling on the sector to act,” she said when announcing the target earlier this month. “By working collaboratively, we will create a legal climate that is ambitious, dynamic and adaptable, and fulfils the ambitions I believe our young people should have the chance to achieve.”

Extending that flexibility right across the profession will not be without its challenges, though. As O’Neill says, “the extent of flexibility that’s available in a business depends to some degree on the scale of the business”.

“The extent to which smaller firms can remain economically viable while offering that flexibility is worthy of examination,” she adds. “If they are struggling with their business model they might need people to work more hours than someone who wants to do two days is able to do. There’s a structural issue in the way firms are made up.”

Nor is flexible working an end in itself. As Alison Newton, head of the Glasgow office at Addleshaw Goddard, notes, these programmes are about “getting people back into the workplace or helping them into the workplace – it’s not necessarily about promoting them”. In other words, while agile and flexible working is an important tool for ensuring women are retained within the business – as well as for giving men the opportunity for a better work-life balance – on its own it will not do anything to improve representation at the most senior level.

“There’s an absolute recognition that we have to get more female partners into equity and that’s going to take proper effort,” Newton says. “The determination to increase the numbers at all levels must come from the top. You’ve got to have a managing partner and a leader who actively want to see it happen and are totally prepared to put in place the stuff, hard and soft, that will make it happen.”

Natural state of equality

It is an effort the current crop of female leaders is more than willing to make. Addleshaws, for example, has just extended the returner programme it already runs in England to Scotland, with the aim of creating a supported environment in which those who have had an extended break can build the confidence to return to the workplace.

Burness Paull, meanwhile, is offering a range of mentoring and leadership training options designed to help female lawyers think about what they want to achieve right from the start of their careers rather than saving those discussions for when they are already on the partnership track.

“We need to persuade women that they should be investing in their own careers,” says Tammes, recalling the piece of advice that prompted her to invest in her own.

“I saw a financial adviser when I was a trainee – I’d just bought my first flat and the financial adviser said what do you think the most important investment you’ll ever make is and I thought this flat was incredible, but he said ‘never think of it in terms of a new flat, the best investment you can make is you and you need to look at your potential over the next 30 years’. It’s absolutely true. I’d love it if women thought more in those terms.”

The real challenge, though, is in changing the way that firms built around masculine trajectories and routines measure progression. It is all very well talking about wanting more women at partnership level, but that will never be achieved if no account is taken of the fact that those who have children may require a tailored route to get there.

“It’s important for businesses to make sure that people’s careers are not seen as a straight line upwards in terms of progression,” Tammes says. “Everybody – male or female, it makes no difference – should be in constant conversations with their line managers about when to put their foot on and foot off the gas. All sorts of things will intervene – children are the most common, but lots of other things come up. As a business you have to think this person is a lovely bundle of talent and we should be thinking about them over the next 30 years.”

O’Neill agrees, though stresses that in the quest for equality firms should not lose sight of the fact that some women choose to leave the law after having children simply because they want to focus on their home lives.

“To me, feminism was all about women having a choice,” she says. “We know that some women make the very positive choice to step away from the working environment and there’s something inherently contradictory about judging them for that.

“What I’d like to see is more men and women colleagues talking to each other about how they make those choices. We have to remember that nothing’s forever.”

The issue now, of course, is that if the work being done to improve gender diversity at senior levels is a success – and there is every reason to believe it will be – the pendulum could swing the other way. 

As Motion at Balfour & Manson says, with so many more women than men entering the profession at the junior end, “maybe in 10 to 15 years’ time we’ll have a majority of women in senior roles”. “That is the natural conclusion of where we’re at,” she says.

While no one believes that men’s senior positions are under serious threat, Ross at Clydes stresses that “I don’t think we’d ever want to be complacent about that”.

“There are already discussions about whether something needs to be done to change the balance of trainees coming into the profession, for example with boys at school,” she says. “I’d like to think that things will shakedown and fall into a natural state of equality but we can’t take our eyes off the ball. It’s good for the profession to be diverse in all senses.”