Let’s talk about…the growing drive for diversity in the legal profession
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Putting forward a diverse legal team is no longer ‘preferred’ and the ‘right thing to do’ – it is fast becoming ‘essential’. How law firms and their clients are using spend to help drive change, by David Stone.
Just over four years ago, I looked around the courtroom in the Rolls Building and it hit me like a bus that of the 20 or so people in the room, there was only one woman – the transcriber. It was an IP case – and there are plenty of brilliant female IP lawyers, so there was no shortage of women who could have been there. It seemed very odd that, in circumstances where clients are insisting on diverse teams of lawyers for the cases and transactions, this looked like a gentlemen’s club.
So what could I (or, more accurately, we, Allen & Overy), do to try to change that picture? For over 10 years now, many law firms have been using their buying power to help improve the diversity, equity and inclusion (DE&I) of the providers with whom we work. Sometimes, these are outsourced in-house colleagues – security, catering etc – and it makes sense given how closely we all work together to ensure that we share DE&I goals. For the firm’s other providers – such as couriers and cab companies – it also makes sense: a negative or inappropriate comment in a vehicle on the way home after a 16 hour day can be damaging. So we meet regularly with our providers to review their DE&I efforts, to provide feedback and to benchmark.
Until recently, we had not included barristers in that program. Perhaps some at the Bar may bristle at the notion of being “providers” – but it’s not the labels that matter. What is important is that, in representing our clients, we, together with the Bar, are doing the very best job that we can. And that job will be improved if the teams we are putting forward draw on the broadest available pool of talent and experience.
Of course, it’s the “right thing to do” and helps to retain the best people, but there’s also an element of this that is very much client driven. Our clients are now asking detailed questions about our DE&I strategy, the progress we are making and, increasingly, about the diversity of their matter teams. A few are becoming very explicit about their DE&I requirements, and they are following through more proactively than they used to on whether their needs are being met.
‘GCs for D&I’ is a group representing the in-house legal functions of about 120 major corporations who have come together to support DE&I across the legal profession, whether in their own in house-practices, or in the law firms that they work with around the world. The group is increasingly active across the DE&I agenda and is developing frameworks which confirm their expectations of their law firms, including measuring results. They have stated their intention to use their spend with law firms that are doing most to be more diverse and inclusive.
Separately, there are 12 GCs from international banks who signed an open ‘Letter to the Legal Community on Racial and Social Injustice’ in 2020. They are now acting to set out their individual expectations across the DE&I agenda, including their intention to use their spend to help to drive change.
So we as a firm are under financial pressure to continue to improve our position on DE&I, and to show measurable results.
Specifically, our clients are now setting us targets – both for staff and hours – and the pitches we submit now routinely feature detailed questions about our DE&I efforts, and the diversity of the team we are putting forward. Putting forward a diverse team is no longer “preferred”, it is “essential”. One client recently made DE&I a key criterion in their panel selection process and has said that the firm they consider to be making the most progress gets an automatic place when the panel is next up for renewal.
And to ensure that the diverse team pitched actually does the work, other clients have begun to tell us that they would cut fees by up to 15% if the matter teams didn’t meet their DE&I requirements.
The message from clients is therefore clear.
What can we do?
With those client expectations firmly in mind, we set out to try to do something about it – and set up a roundtable with 15 sets of barristers with whom we work regularly. We meet every six months or so to discuss what can be done across all strands of DE&I, to share information, and to encourage cross-fertilisation between chambers. At this point, we’re very much focussed on the carrot rather than the stick. And I should emphasise that we’ve been very clear that this is not about telling clients which barristers they can and can’t use – client choice always comes first.
Many of the suggestions have come from the barristers themselves. For example, it was suggested that the language used by some of the legal directories, much of which consists of quotes from solicitors, can come across as gendered. Men are often described using bellicose and automotive references, whereas women are often described as “easy to work with” or “a safe pair of hands”. Our research backed up that hunch, so we launched an internal project to educate our A&O colleagues, and to encourage them when giving quotes to avoid gendered language, focussing instead on the skills we admire in that barrister.
It was also reported that diverse junior barristers can struggle to build a network. So we invited pupil barristers and those up to three years’ call to a networking reception (this was pre-Covid) with our trainees and litigators up to three years’ PQE. We’ve repeated the reception since, and look forward to doing so again as soon as the situation allows. All those who attended now have some new and, I hope, useful contacts.
On the basis of feedback from the Bar, we’ve also been clear with clerks that we welcome working with barristers who work flexibly (we encourage it with our A&O colleagues as well), and we’re keen to know of barristers returning from a period of leave so that we can help them rebuild their practice. We have asked for diverse short-lists – so that, overall, we can have a diverse legal team.
Many solicitors report that they just re-instruct the barristers they’ve used before – so we’ve invited chambers to put forward diverse barristers to come to the firm and present training, so that we can get to know them. This has helped enlarge and diversify the colleagues at the Bar we will look to in future.
As clients are now measuring our DE&I contribution, we’re looking for ways to achieve that with the barristers with whom we work. That’s not easy to do whilst maintaining confidentiality and complying with GDPR. But our goal is for our spend on barristers to reflect the increasing diversity at the Bar. We are making good progress – but we’re certainly not there yet.
A version of this article first appeared in Counsel Magazine.