This is the pre-edited version of the following article which will be published in final form at (2010) 13(2) Legal Ethics in December. 1 Diversity staff and the dynamics of diversity policy- making in large law firms Joanne P. Braithwaite * * * * Abstract A number of high-profile campaigns relating to diversity have focussed on the large law firm sector since the mid-2000s. Reflecting what has been called the ‘diversity approach’ to equality management, they have emphasised voluntary action based on business case reasoning. This paper considers the impact of these campaigns in practice, focusing the dynamics of diversity policy-making within firms. Drawing upon empirical work conducted in large law firms, it explores in particular the perspective of newly appointed diversity staff who have day to day responsibility for diversity policies in the majority of large law firms. It discusses research findings that show while certain policies were being implemented across the large law firm sector, much turned on the position of diversity staff within firms and their ability to conduct in-house negotiations effectively, to compromise and downplay the potential for disruption to the status quo. On the basis of this research I consider the ongoing debates about holding law firms to account with respect to the diversity of their workforce. While the strategy of pressurising firms to disclose ‘diversity data’ seems to gather pace the paper recommends an open discussion about the goals of diversity policy making as a pre-condition of greater accountability. (200 words) * Department of Law, London School of Economics and Political Science
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This is the pre-edited version of the following article which will be published in final form at (2010) 13(2) Legal Ethics in December.
1
Diversity staff and the dynamics of diversity policy-
making in large law firms
Joanne P. Braithwaite∗∗∗∗
Abstract
A number of high-profile campaigns relating to diversity have focussed on the large law firm sector since the mid-2000s. Reflecting what has been called the ‘diversity approach’ to equality management, they have emphasised voluntary action based on business case reasoning. This paper considers the impact of these campaigns in practice, focusing the dynamics of diversity policy-making within firms. Drawing upon empirical work conducted in large law firms, it explores in particular the perspective of newly appointed diversity staff who have day to day responsibility for diversity policies in the majority of large law firms. It discusses research findings that show while certain policies were being implemented across the large law firm sector, much turned on the position of diversity staff within firms and their ability to conduct in-house negotiations effectively, to compromise and downplay the potential for disruption to the status quo. On the basis of this research I consider the ongoing debates about holding law firms to account with respect to the diversity of their workforce. While the strategy of pressurising firms to disclose ‘diversity data’ seems to gather pace the paper recommends an open discussion about the goals of diversity policy making as a pre-condition of greater accountability.
(200 words)
∗ Department of Law, London School of Economics and Political Science
This is the pre-edited version of the following article which will be published in final form at (2010) 13(2) Legal Ethics in December.
2
Diversity staff and the dynamics of diversity policy-making in large law firms
Joanne P. Braithwaite∗∗∗∗
Introduction
Various formal and informal campaigns about diversity have focussed on the large
law firm sector, gathering momentum from the mid-2000s. These campaigns are
largely consistent with what has been called the ‘diversity approach’ to equality
management, notably in their strong emphasis on voluntary action based on business
case reasoning. However, the literature suggests that such campaigns may be
problematic as a driver of change in the large law firm context, not least because there
is a lack of strict enforcement, blurred objectives and a failure to recognise the
resilience of the law firm status quo.
Having considered the nature of these campaigns with reference to the conceptual
framework of the diversity approach, I go on in this paper to look at the impact of
these campaigns in practice, focusing on the dynamics of policy-making within firms.
Drawing upon empirical work conducted in large law firms, the discussion explores in
particular the perspective of newly appointed diversity staff who have day to day
responsibility for diversity policies in the majority of such firms. It considers the
research findings that the debates about the diversity approach were being internalised
within firms and that the tensions and other ‘difficult issues’ as regards the
applicability of the diversity approach in this context remained unresolved. On the
basis of the findings, I then consider the ongoing debates about holding law firms to
account with respect to the diversity of their workforce and, more generally, the
implications of the arguments for the future of the external campaigns directed at this
sector of the legal profession.
∗ Department of Law, London School of Economics and Political Science
This is the pre-edited version of the following article which will be published in final form at (2010) 13(2) Legal Ethics in December.
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1. Diversity campaigns targeting the large law firm sector
The UK-based large law firm sector is well-known for its phenomenal growth,
especially since the 1980s. This boom has been attributed to factors including the de-
regulation of the City of London, facilitative state policies in the 1980s and 90s such
as privatisation, globalisation and the increased specialisation of international
corporate and finance-orientated legal work.1 According to the Law Society’s latest
figures, there are currently 60 law firms in England and Wales with over 81 partners,
42 of which are based in the City of London.2 As at 2009, such firms represented
0.6% of the total number of law firms in England and Wales and employed 25.6% of
all solicitors in private practice.3
However, this sector has persistently maintained a problematic record on diversity, as
has been evidenced by many years of research.4 Perennial issues include the fate of
candidates from non-traditional backgrounds seeking entry into the sector and the
stubborn ‘glass ceiling’, still in place though women have made up the majority of
entrants to the profession for over twenty years.5 However, the debate is now
1 For example, see M Galanter and S Roberts, ‘From kinship to magic circle: the London commercial
law firm in the twentieth century’ (2008) 15(3) International Journal of the Legal Profession 143; G Hanlon, Lawyers, the State and the Market (MacMillan Press, 1999); and J Flood, ‘Megalaw in the UK: Professionalism or Corporatism? A Preliminary Report’ (1988-9) 64 Indiana Law Journal 569.
2 B Cole, N Fletcher, T Chittenden and J Cox, Trends in the solicitors’ profession: Annual Statistical Report 2009 (Law Society, 2009) 24.
3 Law Society, ‘Key facts on the solicitors’ profession’ (Law Society, 2009). 4 For example, see the widely cited cohort study: M Shiner, Entry into the Legal Professions: The Law
Student Cohort Study, Year 4 (Law Society, 1997) and M Shiner, Entry into the Legal Professions: The Law Society Cohort Study, Year 5 (Law Society, 1999). The study’s findings about the distribution of trainees within private practice, including an analysis of the background of trainees recruited by City firms, labelled an ‘élite within an élite’, are discussed in M Shiner, ‘Young, Gifted and Blocked! Entry to the Solicitors’ Profession’ in P Thomas (ed), Discriminating Lawyers (Cavendish 2000) and were referenced in Department of Constitutional Affairs, ‘Increasing diversity in the legal profession: A report on Government proposals’ (Department of Constitutional Affairs, November 2005) 5 onwards.
Preliminary findings from Sommerlad’s ongoing longitudinal study exploring the perspective of ‘non-traditional’ entrants to the legal profession from a new university’s Legal Practice Course suggest that the profession’s ‘élite sectors’ are still largely closed to ‘outsiders’. H Sommerlad, ‘Researching and Theorizing Processes of Professional Identity Formation’ (2007) 34(2) Journal of Law and Society 190, 193 onwards, 205-206 and 217.
There is also a vast literature about diversity in large US law firms. For example, regarding the obstacles facing black recruits in large firms in the US, see D Wilkins and G Gulati, ‘Why are there so few black lawyers in corporate law firms? An institutional analysis’ (1996) 84 California Law Review 496.
5 For example, M Thornton, Dissonance and Distrust: Women in the Legal Profession (OUP, 1996), H Sommerlad ‘Can women lawyer differently? A perspective from the UK’ in U Schultz and G Shaw (eds) Women in the World’s Legal Professions (Hart Publishing, 2003). The data as regards women entering the profession is reviewed in J P Braithwaite, ‘The strategic use of demand-side diversity pressure in the solicitors’ profession’ (2010) 37(3) Journal of Law and Society 442, 444.
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broadening to take account of the lived experiences of different groups within the
profession6 and the role of large law firms in the context of declining social mobility
in the UK7 and to consider if symptoms suffered by particular groups are signs of
universal problems within the professional project.8 Because it is now self-evident
that change in the ranks of the profession is not inevitable over time, a number of
scholars are also exploring the possibilities for positive action (so far only in the
judicial context9) and the structural factors operating to reproduce disadvantage within
organisations like law firms.10
This juxtaposition- a long-term trend of remarkable growth in firm size, turnover and
geographical spread versus slow (or non-existent) change within firms in terms of the
experiences of non-traditional lawyers- makes it unsurprising that in recent years a
flurry of formal and informal initiatives about equality, diversity and the professions
have targetted the large law firm sector. These campaigns have emanated from a
range of different parties, from the Government to corporate clients and the legal
media, and have reflected a particular theory about ‘equality management’.11
1.1 The diversity approach and the campaigns in the large law firm sector
It is well-documented in the literature that since the late 1980s and 1990s, heavily
influenced by trends in North America,12 there has been a retreat from an ‘equal
opportunities’ approach to managing equality in the workplace, which emphasised
‘sameness’, towards what has been called the ‘diversity approach’. 13 Squires
describes this as a move towards a ‘wider equalities framework’ in which the separate
6 For example, see Sommerlad (n 4). 7 The Sutton Trust published research in 2005 on the educational backgrounds of the ‘UK’s top
solicitors, barristers and judges’, looking at partners in three large law firms in the so-called ‘Magic Circle’: Allen & Overy; Slaughter and May; and Clifford Chance. Sutton Trust, ‘Sutton Trust Briefing Note: The educational backgrounds of the UK’s top solicitors, barristers and judges’ (June 2005) 4, footnote ii.
8 L Webley and L Duff, ‘Women solicitors as a barometer for problems within the legal profession- Time to put values before profits?’ (2007) 34(3) Journal of Law and Society 374.
9 K Malleson, ‘Diversity in the judiciary: The Case for Positive Action’ (2009) 36(3) Journal of Law and Society, 376.
10 S Sturm, ‘Second Generation Employment Discrimination: A Structural Approach’ (2001) 101 Columbia Law Review 564.
11 G Kirton and A Greene, The Dynamics of Managing Diversity: A Critical Approach (2nd ed. Elsevier Butterworth-Heinemann, 2005) 2.
12 For example, as set out in R R Thomas, ‘From Affirmative Action to Affirming Diversity’ (1990) 68(2) Harvard Business Review 107.
13 Kirton and Greene (n 11) 2.
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strands of equality have been ‘replaced by a more integrated concern with
‘diversity’’. 14 This development can be understood as part of a wider political trend
whereby ‘bureaucratic control and constraint’ fell from favour in the face of the ‘more
vigorous application of market principles’.15
Though its definition remain controversial16 three characteristics of the diversity
approach are consistently referenced in the literature, being its focus on the potential
of every individual, promise of business benefits and transformative potential. As I
discuss below, each of these feature prominently in the recent campaigns which have
targetted large law firms, though not always in a straightforward way.
Focus on the individual
A defining characteristic of the diversity approach is that it involves ‘sameness’ being
downplayed in favour of valuing ‘difference’17 with the objective of helping every
individual thrive within an organisation. Barmes and Ashtiany write that the focus of
(what they call) the diversity perspective is to investigate ‘what arrangements are
needed to maximize the capacity of each to realize their potential’.18 A practical
manifestation of this shift in approach came with the establishment of a single
equalities commission in the UK in place of several representing particular ‘strands’
of equality19; as Squires points out, this reform reflects a commitment at a state-level
to ‘a generic equalities or ‘diversity’ approach’.20
As regards individual organisations, this aspect of the diversity approach suggests that
the organisation as a whole should become involved in trying to bring about change,
rather than particular departments having responsibility for ‘equal opportunities’. 14 J Squires, The New Politics of Gender Equality (London: Palgrave MacMillan, 2007) 16. 15 J Webb, ‘The Politics of Equal Opportunity’ (1997) 4(3) Gender, Work and Organisation 159, 161-2. 16 Indeed, Dickens concludes that ‘this is an area where the use of particular terms can be problematic
and not necessarily illuminating as to practice’. L Dickens, ‘Walking the Talk? Equality and Diversity in Employment’ in S Bach (ed) Managing Human Resources: Personnel Management in Transition (Blackwell, 2005) 203.
17 S Liff and J Wajcman, ‘‘Sameness’ and ‘Difference’ revisited: Which way forward for equal opportunity initiatives?’ (1996) 33(1) Journal of Management Studies 79
18 L Barmes and S Ashtiany, Diversity in the City: Initiatives in Investment Banks in the U.K. (Nabarro Nathanson, 2003) 4
19 The Equalities and Human Rights Commission has replaced the Equal Opportunities Commission which had responsibility for gender relations, the Commission for Racial Equality and Disability Rights Commission.
20 J Squires, The Challenge of Diversity: The evolution of women’s policy agencies in Britain (2007) 3(4) Politics & Gender 513.
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Indeed, Kandola and Fullerton’s influential 1994 account21 differentiates between the
diversity approach and equal opportunities on the basis (inter alia) that the latter is
narrowly focused on avoiding discrimination and principally the concern of the
personnel and human resources departments.22
In practice, various campaigns in the large law firm sector have shown signs of this
thinking, including the Law Society’s Diversity and Inclusion Charter and Protocol on
the Procurement of Legal Services which were launched in mid-2009.23 The Charter
itself, which is the text which law firms are invited to sign up to, does not refer to any
particular groups but rather states that signatories agree that ‘a commitment to
diversity and inclusion is essential to reflect the society we serve today’.24 Moreover,
one of the case studies of ‘good practice’ offered in conjunction with the Charter
discusses how a large law firm generates ‘imagination and resourcefulness’ ‘by
drawing on the broadest possible pool of knowledge, skills, perspectives and talent’.25
Similarly, in a 2005 report called ‘Increasing diversity in the legal profession’
(hereafter, the ‘2005 report’) the then Government argued that ‘in order to create a
more diverse profession, talent must be drawn from all quarters of our society’. 26
However, many high profile campaigns in this context do focus on the position of a
particular group or groups within the workforce. For example, The Black Solicitors’
Network (‘BSN’)’s 2009 Diversity League Table presented data voluntarily disclosed
by 50 large law firms27 about the proportions of ethnic minority, women, disabled and
‘LGB’ staff (though returns with respect to the last two categories were so few that
they were not included in the BSN’s overall ranking).28 This survey found that just
21 R Kandola and J Fullerton, Diversity in Action: Managing the Mosaic (2nd ed: Chartered Institute of
Personnel Development, 1998) 8. This work is referenced, for example, by Kirton and Greene (n 11) 123 and Barmes and Ashtiany (n 18) 4.
22 Ibid, 167. 23 Law Society, ‘Law Society’s Diversity and Inclusion Charter’ (2009) and Law Society, ‘Protocol on
the Procurement of Legal Services’ (2009). All documents in relation to the Charter and Protocol are available at <http://www.lawsociety.org.uk/productsandservices/inclusioncharter.page> All websites last accessed 10 September 2010.
24 Law Society Diversity and Inclusion Charter Statement. Law Society (n 23) 25 Law Society Diversity and Inclusion Charter: Case Studies: Linklaters. Law Society (n 23) 26 Department of Constitutional Affairs (n 4) 4. This was a response to the May 2005 recommendations
of the Legal Services Consultative Panel which was, in turn, set up by the Access to Justice Act 1999. 27 The BSN states that it approached all of the top 150 UK law firms and top 30 leading international
firms with UK bases as defined by the Lawyer’s 2008 rankings. Black Solicitors’ Network, Diversity League Table 2009 (Black Solicitors’ Network, 2009) 14.
28 Ibid, 15.
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over 4% of all partners in the sample were from ethnic minority groups, though the
representation of black partners was particularly low (just over 0.5%).29 Other groups
have sought to reward firms’ progress with respect to the position of particular groups
in their workforce (or more accurately, reward the progress of those firms that apply
for recognition), including charities such as Stonewall.30
The trend of asking large law firms to disclose group-based data about their
workforces has been marked for some years and, if anything, shows signs of
becoming more popular as time goes by. Official adoption of this tactic began with
the 2005 report, immediately after which the Department of Constitutional Affairs (as
it then was) sent letters to the top 100 law firms and 30 chambers asking them to
disclose workforce data broken down by gender, ethnicity, disability and flexi-
working.31 Similarly, the Law Society explains that Charter and Protocol ‘covers all
aspects of diversity (ethnicity; gender; disability; age; religion or belief; sexual
orientation)’32 and its related Monitoring and Reporting Protocol suggests that firms
collect data on the same six aspects of identity.33 Moreover, recent reports suggest
that the Legal Services Board (which oversees the legal profession’s regulators
including the Solicitors Regulation Authority) is considering requiring law firms and
chambers to publish diversity information about their staff.34
While there are some signs that the categories involved in these exercises may be
open to negotiation- for example the Law Society suggests that that data on social
background may be included in its list in the future35 - it is unclear how exactly those
asking for it intend to use group-based data to hold law firms to account. There are no
signs, for instance, that it will lead to express targets being imposed on law firms.
However, if this data is to be used to critique firms’ performance or even ‘inform
29 Ibid, 37. 30 A lesbian, gay and bisexual charity which run an annual workplace equality index as well as a
diversity champions’ scheme. http://www.stonewall.org.uk/ 31 Department of Constitutional Affairs (n 4) 9-11. 32 Frequently Asked Questions about the Law Society Diversity and Inclusion Charter. The Law
Society (n 23). 33 Law Society Monitoring and Reporting template. The Law Society (n 23). 34 N Rose, ‘Law firms may be forced to publish diversity figures’ (7 September 2010) The Guardian,
discussing reports that the Legal Service Board is considering requiring firms to publish their diversity data.
35 Frequently Asked Questions about the Law Society Diversity and Inclusion Charter. The Law Society (n 23).
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policy making’36 it would imply that criteria of some kind are being used to underpin
the discussion, though campaigners have been reluctant to clarify what they might be
or how this relates to the ‘generic equalities’ agenda.
On the face of things, therefore, there are two strands within these ‘diversity’
campaigns which are difficult to reconcile, namely the pressure to maximise the
potential of every individual (which is consistent with the theory underlying the
diversity approach) and the pressure to address the progress (or lack of it) of particular
groups in the workforce. This matters because it has been argued that such dissonance
may undermine the benefits of the diversity approach, as a preoccupation with the
progress of particular groups can narrow the focus of diversity policies and destroy
the potential for broader transformation within an organisation. For instance, in the
judicial context, Rackley has criticised those (including the Department of
Constitutional Affairs) who focus on what she calls ‘an evening up of the numbers on
the bench to ensure a kind of numerical aestheticism’. 37 Defining diversity by
reference to numbers therefore risks tokenism and, ultimately leaving the status quo
intact.
Others have sought to reconcile the focus on particular groups with the diversity
approach. In particular, it has been argued that the individualistic focus of the
diversity approach needs to be qualified by reference to group identity, because it is
misleading to proceed on the basis that all groups may be celebrated equally,38 risks
distracting from the realities of unfairness39 and because of the broader ‘legislative
context’ which is framed by reference to protected groups.40 Nonetheless, to the
extent that law firms (and specifically diversity staff) do seek to be accountable on
‘diversity’ matters, this tension clearly has the potential to present a considerable
challenge, blur policy objectives and may even thwart progress.
36 Rose (n 34). 37 E Rackley, ‘Judicial diversity, the woman judge and fairy tale endings’ (2007) 27(1) Legal Studies
74, 94. 38 D Cooper, Challenging Diversity: Rethinking Equality and the Value of Difference (Cambridge
University Press, 2004) 40. 39 For a discussion of the concern of some feminist scholars about the consequence of the shift to
diversity approach, see Squires (n 20). 40 Nabarro, The perils of UK anti-discrimination law: Nabarro Review of law and practice on diversity
(Nabarro, 2007) 2.
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The business case
Perhaps the most notorious aspect of the diversity approach is that it seeks to bring
about change within organisations on the basis of the ‘pull’ of business benefits rather
than the threat of sanctions for non-compliance- or as Dickens puts it, on the basis of
the carrot and not the stick.41 With respect to the business case, Kandola and Fullerton
promise that:
..harnessing these differences will create a productive environment in which everyone feels valued, where their talents are being fully utilized and in which organizational goals are met42
Some campaigners are so confident about the business benefits flowing from diversity
– spelt out in detail by groups like Business in the Community43- that they have
argued that the recent global financial crisis is an opportunity to advance diversity.
For example, Opportunity Now reckons that ‘boardroom diversity may well be
strengthened during the credit crunch as new innovative ways of working are
investigated’.44
The business case has been extremely influential in the debate about diversity in the
law firm sector. The Law Society has long embraced it, as evidenced in its Handbook
as well as the recent Charter and Protocol.45 So has the Government; for example, in a
2008 speech where the (then) Secretary of State for Justice addressed the diversity-
related business advantages for those large law firms trying to win international
work. 46 Moreover, as I have discussed in detail elsewhere, certain clients are
explicitly linking a law firm’s capacity to win work with its performance (as defined
41 L Dickens, ‘The Business Case for Women’s Equality. Is the carrot better than the stick?’ (1994)
16(8) Employee Relations 5. 42 Kandola and Fullerton (n 21) 8. 43 A membership organisation for businesses ‘committed to improving their impact on society’.
http://www.bitc.org.uk/about_bitc/index.html For an example of the application of the business case, see Business in the Community, Responsibility in a Recession: Checklist for restructuring and downsizing (January 2009) 2, which states that ‘The business benefits of responsibility are well articulated in terms of increased market share, loyalty, customer attraction and retention, employee engagement and productivity’. Available at http://www.bitc.org.uk/resources/publications/downsizing_legacy.html
44 Opportunity Now, Diversity in the Downturn (undated). Available at http://www.opportunitynow.org.uk/best_practice/diversity_in_the_downturn/
45 The Law Society, Delivering Equality and Diversity: A Handbook for Solicitors (The Law Society, 2004) and the Law Society (n 23).
46 The Rt Hon Jack Straw MP, Lord Chancellor and Secretary of State for Justice, ‘Launch of Law Society ‘Markets, Justice and Legal Ethics’ campaign’ (Speech given on 6 March 2008) <http://www.justice.gov.uk/news/sp060308.htm>
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by the client) in terms of diversity, all of which is troubling in terms of the long-
standing academic criticism of campaigns based around the promise of profit.47
For the purposes of the discussion below, it is relevant to note that campaigns in the
law firm sector have been and continue to be framed overwhelmingly in business
terms and as such, rely on voluntary action and lack mechanisms of strict enforcement.
The one exception currently is the requirement in the Solicitors’ Code of Conduct that
firms ‘adopt and implement an appropriate policy for preventing discrimination and
harassment and promoting equality and diversity within your firm’ 48 which is
explicitly linked ‘the size and nature of your firm’. 49 Breach of this rule incurs
professional sanctions, but the demands which it places on firms are limited.
Transformative potential
The final feature of the diversity approach which is consistently referenced in the
literature is its potential to transform organisations by challenging the status quo.
Aiming to change ‘organisational structures.. to better accommodate all’50 is an
attractive and optimistic-sounding goal, which campaigners can neatly link with the
business case, discussed above. For example, in an article about diversity and the
financial crisis, Opportunity Now promises that ‘the prize for employers who are
willing to tackle and change the status quo could be huge’.51
This aspect of the diversity approach is also evident across the campaigns targeting
the large law firm sector. The foreword to the Government’s 2005 report, written by
Bridget Prentice MP, stated that the legal profession would not be ‘the high quality
profession we want it to be unless we increase the diversity of that profession.’52
More recently, the Law Society has promised that:
47 Braithwaite (n 5). As discussed therein, McGlynn has offered a particularly powerful critique of the
business case in the law firm context suggesting that the business case is empirically fragile and could be used to justify inactivity or worse: C McGlynn, ‘Strategies for Reforming the English Solicitors' Profession: An Analysis of the Business Case for Sex Equality’ in U Schultz and G Shaw (eds), Women in the World's Legal Professions (Hart Publishing, 2003).
48 Solicitors Regulation Authority, Solicitors’ Code of Conduct 2007 Rule 6.03 (Equality and diversity policy).
49 Solicitors Regulation Authority, Solicitors’ Code of Conduct 2007 Guidance to Rule 6, paragraph 22(c)(i).
50 Dickens (n 16) 201. 51 Opportunity Now (n 44) 52 Department of Constitutional Affairs (n 4) 4.
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A diverse and inclusive legal profession benefits everyone with opportunities to develop and recruit the best talent and better understand and meet the needs of its clients. Collaborative action provides opportunity to identify, address and resolve common problems, develop and disseminate best practice and improve individual and collective performance and benchmarking.53
The transformative potential of diversity approach has also proven compelling for
academic observers. Notably, Guinier and Torres have developed their theory of
political participation on this basis.54 Rackley has discussed this potential in the
context of the judiciary, arguing that:
diversity requires the usual to be transformed by the remarkable, and the extraordinary to become the norm. It is as much about looking at that which difference itself is different to- the everyday or the mundane- as it is about looking for difference itself.55
However, scholars have been more willing than campaigners to follow through the
arguments about the transformative potential of diversity and address the negative
implications for the status quo. Malleson has explored these tensions in the context of
the judiciary, where there is an added constitutional dimension to arguments that
diversity has the capacity to transform the institution.56 In the context of the legal
profession, scholars have long pointed to the need for radical change within law firms,
including Webley and Duff who have argued that women lawyers may act as a
‘barometer’, or ‘more accessible indicators of problems’ within the professional
project.57 This suggests that while the ‘transformative potential’ of diversity may
seem relatively uncontroversial in theory, it may not prove so when applied in a
particular setting such as a law firm. As seen, it is one thing to argue that the diversity
approach may transform an organisation by unlocking a variety of benefits; it is
another to follow this logic through more fully and argue that the perspective of
marginalised groups might help to shine a light on deep-seated problems with the
status quo.
53 Frequently Asked Questions about the Law Society Diversity and Inclusion Charter. The Law
Society (n 23). 54 L Guinier and G Torres, The Miner's Canary: Enlisting race, resisting power, transforming
democracy (Harvard University Press, 2002). 55 Rackley (n 37) 94. 56 K Malleson, ‘Justifying Gender Equality on the Bench: Why Difference Won't Do’ (2003) 11(1)
Feminist Legal Studies 1. 57 Webley and Duff (n 8) 382 and footnote 6, referencing S Sturm, ‘From Gladiators to Problem-
Solvers: Connecting Conversations about Women, the Academy and the Legal Profession’ (1997) 4 Duke Journal of Gender, Law & Policy 119.
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1.2 External campaigns as a driver of change?
Scholars concerned with diversity and the legal profession have generally been
pessimistic about the capacity of high profile campaigns such as those discussed
above to drive meaningful change. For the most part, these objections have focussed
on the capacity of arguments framed around the business case to trigger meaningful
change on a voluntary basis. However, as discussed, it is also possible to argue that
the campaigns lack clarity as regard their objectives and have failed to address the full
implications of rhetoric about the transforming the status quo.
As diversity-orientated campaigns have now been targeting the large law firm sector
for some years it is appropriate that the academic debate moves on to consider the
impact that they are having in practice. As part of the process of developing the
debate in this way, it is important that we consider how firms are actually responding
to these pressures. Accordingly, in the rest of this paper I focus on exploring the
processes whereby diversity policies are being debated and implemented within large
law firms.
The research project which is discussed below was set up as a qualitative study of
large law firms’ engagement with the ‘diversity approach’ and addressed, amongst
other issues, which external drivers had proved persuasive in practice, their
interaction with the internal hierarchies within firms and how diversity policies in the
large law firm sector were made. A discussion of the research methodology, which
was interview-based, and of the sample is appended to the paper. In this paper, I focus
in on those findings about the impact of the external campaigns regarding law firm
diversity. In doing so, I paying particular attention to the perspective of the diversity
staff within firms who have day-to-day responsibility for issues pertaining to diversity.
This is for a number of reasons. First, the perspective of diversity staff merits greater
attention than it has received to date, as most academic work in the area has focused
on the perspective of marginalised groups within the legal profession and is generally
lawyer-centric. Secondly, deepening our understanding of the work of diversity staff
shows how the campaigns targetted at the large law firm sector affect negotiations
within firms about implementing particular initiatives. Thirdly, this perspective
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affords some useful insights into how strategies for change in the profession might be
refined in the future.
2. Diversity staff and diversity policy-making: Challenges and strategies within
the law firm hierarchy
Launching the Law Society’s ‘Markets, Justice and Legal Ethics’ campaign in 2008,
the (then) Secretary of State drew attention to various positive developments in the
law firm sector:
Some individual law firms are beginning to publish their diversity policies and data on the internet; and many of the larger firms are employing staff to consider the diversity issues within their firms.58
While these may be developments which are suggestive of progress, my research
found that the picture within firms was considerably more complex. In fact,
developments such as the appointment of diversity staff were found to co-incide with
the internalisation rather than the resolution of the debate about how, or indeed if, the
diversity approach should affect firms. The process of diversity policy-making was
found to comprise a series of negotiations with decision-makers, many of whom were
concerned about disruption to the status quo or sceptical even about the business
benefits of the diversity approach. Diversity staff played a central role in these
negotiations, meaning that their status and bargaining power within the law firm
hierarchy had an impact on the policies which come to be implemented.
In this part of the paper, I consider these findings in more detail. By way of
background, I first explain the role of diversity staff and where they fit into the law
firm structure, and the patterns of policies across firms at the time of the research. The
discussion goes on to address the research findings about the challenges involved in
the implementation of policies by firms. In the subsequent part of the paper, I consider
the implications of these findings with respect to the impact of external campaigns
targeting this sector and the effectiveness of changes in law firms to date.
58 Straw (n 46).
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2.1 Diversity staff and the law firm hierarchy
At the time of conducting this research, three large law firms in the sample had
appointed a member of staff called a ‘diversity manager’ or similar in their London
offices, while in a majority of firms in the sample, the day to day management of
diversity and diversity policies within the firm had been assigned to one or two
members of the human resources (‘HR’) team as part of a portfolio of other
responsibilities. I refer to these employees collectively as ‘diversity staff’ and, so
defined, all the large law firms in my research sample bar two59 employed diversity
staff.
These diversity staff were not legally qualified and all had a human resources (‘HR’)
background. Some were appointed in-house and some laterally, i.e. from outside the
firm, for example from other professional services firms in the City. In the latter
group, at least three research participants had considerable experience of diversity
management in previous jobs; this was not the case for people recruited internally as
diversity jobs were being newly created by law firms. This opened up some
differences in perspective between the two groups, with laterally hired diversity staff
able to bring an outsider’s perspective to their law firm roles. For example, laterally
hired diversity staff interviewees suggested that the legal sector was lagging behind
the others they had worked in, in terms of implementing the diversity approach. One
commented that the legal sector was ‘coming to diversity late’ which meant that ‘we
can take the experience and then move it on’. They also regarded themselves as being
in a good position to apply their previous experience; one put it bluntly, saying ‘I
guess I have the advantage of having done diversity the first time it came round’. Part
of this confidence also came from maintaining contacts in other sectors. One such
interviewee describing themselves as ‘well-connected’ in the ‘diversity world’. The
research found that such links were regarded as valuable by diversity staff who used
them as a source of advice and suggestions. In this respect, the research confirms
59 One of which was a global (meaning here non-UK head-quartered) law firm, where diversity in its
London office was the responsibility of a partner. In this case, the London office was small compared to the London offices of the other firms in the sample. The second firm was UK-headquartered. Here, a partner had sole responsibility for diversity in the firm. However, at the time of the research, the partner concerned was charged with exploring and ultimately recommending how diversity should be managed in the future.
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certain findings by academics who have studied the experiences of officers working in
equality and diversity in other contexts.60
Diversity staff are therefore part of the ‘non-lawyer’ corps in large law firms, the
growth which has been noted, amongst others, by Galanter and Henderson in their
‘updated account of the modern large law firm’.61 What is the significance of diversity
staff being non-lawyers? Parker has drawn out some of the differences between how
non-lawyers and lawyers work in the context of studying the growth of ‘compliance
professionalism’ in the wake of business deregulation.62 She has linked the relative
effectiveness of non-lawyer compliance professionals to factors including their
deploying business case arguments, close understanding of the businesses in which
they work and successfully facilitating others to ‘do compliance’.63 Much as this
echoed some of the tactics used by diversity staff in law firms, working in a law firm
context was also found to present particular challenges for non-lawyers. Indeed,
participants in this research who had worked in companies before brought their
comparative perspective to bear on this issue, with one finding that:
it’s far easier to work in a corporate organisation than a partnership. It makes a huge difference, because in the corporate you’ve got, first of all, somebody who is paid to make decisions. They have people who are paid to make things happen, and you have a board who is remunerated or not, but who gives direction to the firm and you’ve got shareholders who, if they don’t like what’s happening will pull their money and walk away. Here, you don’t really have any of that.
Large law firms are unusually stratified organisations. Lee has described how internal
hierarchies are ‘clear and marked’, describing the divisions between different grades
60 For example, D Meyerson and M Scully, ‘Tempered radicalism: Changing the workplace from
within’ in R Ely, E Foldy and M Scully (eds), Reader in Gender, Work and Organisation (Blackwell, 2003) 271 and C Parker, ‘How to win hearts and minds: Corporate compliance policies for sexual harassment’ (1999) 21(1) Law & Policy 21, 37-38 citing V Braithwaite, ‘First Steps: Business reactions to implementing the Affirmative Action Act. Report to the Affirmative Action Agency’ (Australian National Agency, 1992).
61 M Galanter and W Henderson, ‘The Elastic Tournament: A Second Transformation of the Big Law Firm’ (2008) 60 Stanford Law Review 1867, 1876. It is notable that, overall, non-lawyers are now almost as numerous in some large law firms as lawyers; for example, as at November 2009 there were 996 support staff in Allen & Overy’s London office, compared to 1079 partners, associates and other fee-earners. Allen & Overy, ‘UK London office diversity metrics’ (30 November 2009) <http://www.allenovery.com/AOWeb/binaries/51175.PDF>
62 C Parker, ‘Lawyer deregulation via business deregulation: Compliance professionalism vs. Lawyer professionalism’ (1999) 6(2) International Journal of the Legal Profession 175.
63 Ibid, 184 onwards.
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of lawyer ‘obvious and inevitable’.64 As the interviewee above implies, and as has
been well-documented, both ‘producing and managerial roles’65 in law firms are
concentrated in a partnership made up of lawyers66 which is a very different
arrangement to the corporate organisational structure. This concentration of
responsibilities, including decision-making powers, in the partnership has important
implications for non-lawyers like diversity staff. For example, as Mayson has
observed, non-lawyer staff may find working in a law firm ‘infuriating and
frustrating’ because their kind of expertise is not properly valued.67 However, to the
extent that participants in this research expressed these sorts of feelings, it was not
explicitly based on their expertise being disregarded but on the more general
challenges of bringing about change within law firms. As one research participant put
it, in terms which were typical of views across several diversity staff interviewees:
Lawyers are trained to be lawyers rather than trained to be managers… I think their training is such that you get trained to think in a particular way and so getting them to buy into something is quite challenging.
Diversity staff were therefore found to be acutely aware of the professional challenges
they came across in the law firm context, but they were also in a position to be
strategic and resourceful in response as I discuss later in the paper.
2.2 Diversity policies across large law firms
After a series of diversity-related ‘firsts’ in the mid-2000s (including, in mid-2006,
Herbert Smith becoming the first law firm to appoint a full-time diversity manager,
and Freshfields becoming the first law firm to publish an account of its corporate
64 R Lee, ‘Up or Out- Means or Ends? Staff retention in large firms’ in P Thomas (ed), Discriminating
Lawyers (Cavendish, 2000) 190. The implications of the law firm hierarchy for lawyers aspiring to be partners have been famously described in M Galanter and T Palay, ‘Why the big get bigger: The promotion-to-partner tournament and the growth of large law firms’ (1990) 76 Virginia Law Review 747, which thesis has been developed in Wilkins and Gulati (n 4).
65 J Gabarro, ‘Prologue’ in L Empson (ed), Managing The Modern Law Firm (Oxford University Press, 2007) xxi.
66 However, note that the Legal Services Act 2007 paragraphs 81 and 82 of Schedule 16 make it possible for non-lawyers to be partners in law firms (Legal Disciplinary Practices) and Part 5 of the Act allows for law firms to be owned by non-lawyers (Alternative Business Structures), subject to various conditions being met before these arrangements are permitted in practice. LDPs have been permitted since March 2009 while the SRA suggests that ABSs will be permitted from the ‘latter half of 2011’ (Solicitors Regulation Authority, ‘Legal Services Act FAQs’ <http://www.sra.org.uk/sra/legal-services-act/lsa-questions-faqs.page>). However at the time of conducting the research, non-lawyers were not permitted to be partners.
67 S Mayson, Making Sense of Law Firms: Strategy, Structure and Ownership (Blackstone Press, 1997) 361.
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social responsibility activities, including its diversity statistics68) certain diversity
policies have become much more widespread across the sector.
The research69 found that as well as the appointment of diversity staff, certain
outward-facing diversity initiatives have been widely embraced across the large law
sector. These include the publication on firms’ websites of certain diversity statistics
(though with the caveats as to the usefulness of this data, as discussed below) and of
diversity statements. At the time of conducing the research (as at January 2008) all
bar one of the top fifteen firms considered in the study displayed diversity statements
(though the terminology varied) and all bar three of the same displayed diversity
statistics relating to their workforces. As at August 2010, all bar two provide diversity
statistics and all have a statement about diversity on their websites. This information
is usually accompanied on firms’ websites by a list of organisational affiliations- for
example membership of Stonewall’s Diversity Champions scheme- and diversity-
related awards. At the time of the research, just over half of the law firms in the
sample also had Diversity Committees which were either partner-only sub-
committees of the main board of the firm (which in turn consulted with working
groups) or a mixture of partners, associates, diversity staff and sometimes also
representatives of the non-lawyer workforce. The role of the Diversity Committee
varied from firm to firm but across the sample, they had responsibility for liaising
with the main board of the firm, drafting diversity statements, overseeing data
collection exercises and, as discussed below, working with diversity staff on tasks
such as consulting within firms about which issues should be prioritised.
Large law firms had typically been taking steps for some time to ensure that the
profile of their firms was raised with a broader range of potential graduate applicants
from non-traditional backgrounds. For example, firms’ graduate recruiters were
reported to be travelling to many more universities on ‘milk round’ recruitment events
than they had done in the past. Many firms also supported organisations working with
students to increase awareness about legal careers, such as the Sutton Trust’s
68 A Spence, ‘Become less straight, white and male- or go out of business’ (4 May 2007) The Times.
Available at http://business.timesonline.co.uk/tol/business/law/article1743732.ece 69 As noted in the methodology appendix, the research maintained the anonymity of interviewees and
firms.
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Pathways to Law project, and some invited school children into firms for careers days,
mentoring and talks.70
In relation to the workforce within firms, the principal problem which diversity
initiatives were concerned with was the retention of women lawyers. The most
common diversity policies in place as regards the firms’ workforce were therefore
aimed at addressing the ‘leaking pipeline’ of women. As Linklaters (one of the two
firms providing case studies as part of the Law Society’s Diversity Charter and
Protocol) states it on its diversity and inclusion website, ‘a particular challenge is
stemming the loss of potential female partnership candidates too early in their
careers’.71 One response to this problem was in the form of employee networks for
women within firms. These were found to be becoming more widespread at the time
of the research, though they had not been set up in every firm. As at August 2010, six
of the top fifteen law firms state on their websites that they have networks for women
in place (a further firm had a working group for women to advise its Diversity
Committee) with four firms from these top fifteen having networks for parents.
At the time of conducting the research, in nearly half the firms in the sample,
coaching and mentoring were available for staff who were parents or who were
returning to work after a career break and some firms offered other support in the
form of childcare vouchers or emergency childcare cover. In the majority of firms
efforts were being made to make part-time and flexible working more feasible for fee-
earners, such as by formalising the relevant policies, offering a variety of options
including working from home and job shares and, in at least one case, setting up a
working party to review the implications for transactional lawyers. However, the
interviews confirmed with wealth of scholarly data about how challenging part-time
or flexi-work is on a day to day basis, and in terms of maintaining career momentum
in a large law firm context.72 Interestingly the rate of uptake of part-time and/or
70 The Sutton Trust’s research helped to drive the setting up of the Pathways to Law project, which is
now supported financially and otherwise by a number of large law firms. Pathways to Law, Legal Profession Partners <http://www.pathwaystolaw.org/#/partners/4532690790>
71 Linklaters, ‘Diversity and Inclusion: Valuing difference’ webpage, available at http://www.linklaters.com/responsibility/people/Pages/Diversity.aspx
72 Sommerlad and Sanderson have described how in the U.K. there is a “dominant model of [legal] professionalism which continues to be characterized by excessively long hours, generating an ‘ideal worker’ who is not only free of caring responsibilities but will have domestic support”. H Sommerlad and P Sanderson, ‘Professionalism, discrimination, difference and choice in women’s
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flexible working is sometimes included in firms’ diversity statistics and where it is, it
shows that it remains very rare across the ranks of lawyers within large firms.73
The presence of other sorts of employee networks was found to be more patchy at the
time of the research but in certain respects has increased in the intervening period.
Ethnic minority and LGBT (lesbian, gay, bisexual and transsexual) staff networks
were beginning to be put in place in a few large law firms at the time of the research,
but were present in only a very small minority within the sample. No employee
groups were found to have been set up as regards age, disability or the other ‘strands’
of diversity cited by the Law Society. However, since the research certain types of
networks have become more common. Eight of the top fifteen firms now state that
they have a LGBT network for staff and three do with respect to ethnic minority staff.
One firm states on its website that it has a disability and a multifaith network. Across
the sample there was also evidence that other firms were making adjustments in terms
of catering and prayer facilities to accommodate staff of different religions and
beliefs.74
Finally, a small number of firms in the sample also held special diversity events such
as diversity ‘week’ with outsider speakers for staff or social events. These were
designed to raise awareness, launch a new employee network or sometimes as joint
events with clients.
experience in law jobs’ in P Thomas (ed) Discriminating Lawyers (Cavendish Publishing, 2000) 182. Dickens has also discussed how part time work can serve to reinforce inequality in the workforce as it can be regarded differently by the organisation; ‘career enhancing if time out is taken to study, but career detracting if used for childcare’. Dickens (n 16) 202.
73 Considering the top 5 firms by size, according to the ranking used to inform this research project: Clifford Chance 1.01% of partners and 2.92% of associates in the London office work flexibly (as at 30 June 2010); Linklaters: 5% of partners, 2% of associates (includes trainees) work flexibly (UK workforce, June 2009); Freshfields: 2% partners, 4% of associates and practice support lawyers work flexibly (London office 24 April 2009); Allen & Overy 5% of patterns, 4% of associates work part time (London office, 30 November 2009); Hogan Lovells 2% partners and 17% associates on flexible and part time working contracts (UK, July 2010). Data from diversity statistics published on firms’ websites at http://www.cliffordchance.com/home.html; http://www.linklaters.com/pages/index.aspx; http://www.freshfields.com/; http://www.allenovery.com/AOWeb/Home/AllenOveryHome.aspx?prefLangID=410 and http://www.hoganlovells.com/ respectively.
74 For example, see Law Society Diversity and Inclusion Charter: Case Studies: Eversheds LLP, (n 23).
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2.3 Challenges and strategies
.. it is different and difficult sometimes. There’s certainly a big challenge for us as HR professionals to influence and persuade. If you can do that effectively then you’re fine. But if you can’t, you’re going to struggle.
(Diversity staff interviewee, large law firm)
Diversity staff were typically found to have a range of different responsibilities within
large law firms. They had day to day responsibility for most of the diversity policies
mentioned above. They were also the ‘contact person’ for parties outside firms on
matters pertaining to workforce diversity, for example for campaign groups
conducting surveys or asking for diversity data or the Law Society when organising a
forum for to discuss diversity in the City law firms. Within firms they provided
diversity data to partners whom had been asked for such by their clients, liaised with
or sat on Diversity Committees, organised staff training and were occasional
confidantes for staff who wanted to discuss their experiences (as one interviewee put
it ‘I am the recipient of a lot of stories from other people because I am seen as
somebody who is relatively neutral’).
Diversity staff also had responsibility for instigating new diversity policies within
firms- recent examples cited by interviewees including a new employee network and
coaching for parents. This involved diversity staff researching and pitching the
proposal to firms’ decision-making bodies (typically committees made up of partners).
As one interviewee it put it, it was only ‘once those groups have got the green light,
then we tend to be able to go ahead’. However, the outcome of these presentations
was by no means a foregone conclusion. Rather the encounters with decision-making
committees were described as demanding by diversity staff and in some cases, as
inquisitorial. As the quote a the top of the paragraph suggests, in this setting it could
be difficult for diversity staff to ‘influence and persuade’.
In this context, diversity staff were often asked to prepare and defend a detailed plan
about each proposal backed up with supporting data. In the vast majority of cases this
plan was expected to be wholly or partly based on the business case. This meant that
diversity staff had to try to demonstrate the potential benefits of the proposal to the
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firm either in financial or broader business terms.75 Often staff drew upon external
diversity campaigns which (as discussed) made various claims about the business
benefits or they made reference to outsiders who were both pressuring the firm about
diversity and offering to confer business benefits directly (e.g. clients asking for
diversity information during the pitching process).
Diversity staff reported that this ‘market-orientated’76 empiricism was a useful way of
reaching out to decision-makers. Putting proposals in business terms or in terms of
‘profitability’ was regarded as helpful because it could pre-empt one line of argument
which staff might face. As one interviewee put it:
from my point of view as a HR professional, I don’t want diversity to be seen as...‘it’s a nice thing to do’ you know... I don’t want to be put into that category. I want it to be seen as something that is really quite important to the business for its own reasons.
In this sense, using economic justifications was seen as a way of fortifying proposals
by linking them to the core business activities of the firm and, simultaneously,
distancing them from possible lines of criticism.
However, it was also reportedly difficult to put together and defend such arguments,
especially as some of the audience scrutinised them in detail. One interviewee found
the discussions of these justifications with decision-makers difficult because ‘if they
don’t like the proof, they will do what they can to deconstruct it’. As noted above, the
pitfalls of the business case for diversity have been widely noted in the literature.77
The perspective of diversity staff bears them out in practice, suggesting that using the
business case does expose those advocating change to difficult questions relating to
the fragility of their arguments. In short, those charged with responsibility for
proposing new diversity policies experienced both sides of the debate about the
business case. They come up against the shortcomings of these arguments when
constructing and debating these justifications, but still used them either because they
have been asked to, or because of the perceived advantages of engaging with
decision-makers on these own terms.
75 The different elements of the business case for diversity in the context of law firms have been
explored in detail in McGlynn (n 47). 76 Webb (n 15) 163. 77 See discussion accompanying n 47.
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Diversity staff also facilitated these negotiations by leveraging certain of those
external pressures which were discussed above. A common tactic was to make the
most of client requests about the firms’ diversity statistics or diversity policies.
However, diversity staff also used other sorts of external pressures directly and
indirectly in their work of ‘influencing and persuading’. In particular, the research
found that diversity staff in most of the firms in the sample devoted a surprising
amount of time to external awards and ranking exercises and that they had prepared
submissions for, or were working towards entering, exercises including Stonewall’s
Workplace Equality Index78, the Black Solicitors’ Network’s Diversity League Table
(discussed above) and awards such as the Law Society’s for excellence in equality
and diversity and The Lawyer magazine’s for ‘Most effective diversity programme’.79
The proliferation of awards and rankings available in respect of diversity is just part
of a more general explosion in the number of such exercises, which, as Galanter and
Roberts have commented, keep ‘the shifting fortunes within [the commercial law
firm] hierarchy.. relentlessly in view and subject to commentary’.80 Despite the time
involved in preparing submissions, these exercises were widely regarded as
worthwhile by diversity staff. English’s analysis of the ‘simply tremendous growth of
cultural prizes’ in the arts sector is helpful here.81 Drawing on Bourdieu, he argues
that the prize may be understood as an ‘instrument of cultural exchange’ and the
award of prizes as ‘a ‘full contact marketplace’ where different parties- judges,
sponsors, entrants, winners, losers, organisers and even those attending awards
ceremonies- successfully create value for one another.82
Most obviously of course, diversity staff explained that winning prizes (or performing
well in diversity league tables and other rankings) provided the opportunity to assess
78 The first law firm to feature in this Index was Pinsent Masons which came joint 67th in 2008. Law
firms Simmons and Simmons, Herbert Smith and Eversheds were also included in 2009. Stonewall, ‘Workplace: Where people can perform better’ <http://www.stonewall.org.uk/workplace/1477.asp>
79 See details of the 2010 awards at The Lawyer, ‘2010 HR Awards’ (including ‘Most effective diversity programme’) <http://hrawards.thelawyer.com/>
80 Galanter and Roberts (n 1) 167. 81 J English, The Economy of Prestige: Prizes, awards and the circulation of cultural value (Harvard
University Press, 2005) 9-10. 82 Ibid, 11-12 citing P Bourdieu and L Wacquant (eds) An Invitation to Reflexive Sociology (University
of Chicago Press, 1992).
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their own progress and portray their activities as successful within firms. However,
there were also benefits in losing or doing badly. Simply being motivated enough to
enter was regarded as ‘a nudge to their competitors’ while doing poorly allowed
diversity staff to argue before their firms’ decision-making bodies that more needed to
be done to keep up with competitors. This was thought to be an effective tactic for
two reasons; first, it tapped into the rivalry between firms and, secondly, it was a way
to confirm to the firm’s decision-makers that another firm had already implemented a
particular policy. Most diversity staff agreed it was hard to persuade their firms to be
the first in the sector to implement a new initiative and much easier once there was a
precedent.
Finally, diversity staff also tried to improve their position in negotiations with
decision makers by taking accounts of views which perceived the diversity agenda as
controversial or as a potential threat to the status quo. As one diversity staff
interviewee put it, aspects of their work were regarded by some within the firm as:
challenging the fundamentals of years of a successful story… at the moment it’s like ‘Everything’s working really well, and why should we change a winning formula?’
Diversity staff often encountered the view that the status quo was not just successful
but also a ‘meritocracy’. A common response was to acknowledge the notion of merit
as a constant, within which parameters they wanted to bring about change, i.e. as one
interviewee put it, ‘merit doesn’t have to be white and male and privately educated’.
Such logic has precedent. For example, the foreword to the Government’s 2005 report
reassures readers that ‘merit must remain paramount’.83 Nonetheless, diversity staff
still faced challenging discussions on this perceived tension between diversity and
merit. One interviewee referred to ‘a lot’ of discussions within their firm about the
fact that ‘diversity does not have to equal a dilution of skills’. In one firm, the support
of the senior partner helped to overcome these sorts of counter-arguments, though in
this case, the senior partner was described as being ‘prepared to stick his neck out’ in
support, which conveys something of the flavour of the broader debate.
As a result, diversity staff proceeded incrementally, tending to propose policies which
were felt to be less controversial within firms and which played to those problems
83 Department of Constitutional Affairs (n 4) 4.
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which were the most visible and widely recognised. For the most part this meant the
retention of women lawyers. One interviewee described how debates around gender
‘[are] quite long established’ with the result that they were found to prove less
controversial. Similarly, in another firm ‘the one issue which came out top [of a
discussion by partners about diversity] was retention of female lawyers.’ Another
interviewee reported that
there was very much a sort of recognition that diversity is a huge topic, covering a myriad of different areas, but for us gender was an area where we just felt that we needed to [do something] really at first
Thus, in the majority of firms, retention of women lawyers tended to be treated as the
issue at the top of the list in terms of diversity efforts. But this was not the case in all
firms; one interviewee reported that decision-makers in their firm were willing to
discuss most diversity issues apart from gender, where it was felt there were no
problems because the firm was a ‘meritocracy’.
Outside the body of (supposedly) less controversial issues within firms, it was more
challenging for diversity staff to see particular policies through. At the time of
conducting the research, several diversity staff in different firms had been made to
feel uncomfortable about internal questionnaires gathering diversity data, which some
staff had objected to (as ‘political correctness gone mad’) and were facing resistance
about initiating wider discussions about policies on sexual orientation. Another issue
that remained unresolved across the firms in the sample, in part because of the
practical challenges involved (e.g. defining key terms) and in part because of
resistance, was how to extend diversity activities to overseas offices. Some diversity
staff interviewees reported meeting extremely strong negative reactions on trying to
extend diversity questionnaires to certain overseas offices. As a result it was
unsurprising that London-based diversity staff essentially confined their work to the
UK, and that recently the Law Society acknowledged this constraint.84
In some ways, therefore, the appointment of diversity staff was found to signify the
beginning rather than end of the debate about how the diversity approach to equality
management should affect a particular firm. Due to the lack of external accountability
84 Frequently Asked Questions about the Law Society Diversity and Inclusion Charter. The Law
Society (n 23), explaining why the Charter only covers UK operations.
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this debate plays out within the privacy of each firm and on a policy-by-policy basis.
Diversity staff typically made the case for each new policy in turn and when doing so,
they faced a series of challenges, which came back to the fact that such activities are
voluntary for law firms and that the status quo is highly resilient. In order to
‘influence and persuade’ in these circumstances, diversity staff were found to adopt a
series of strategies. They deployed business case logic (though this also makes them
vulnerable to difficult questions), leveraged external pressures and used prizes,
ranking exercises and peer pressure to make their case. They also checked their
rhetoric and their agendas to take account of concerns about merit and the status quo.
The nature of the external campaigns about diversity therefore made bringing about
change more difficult by leaving firms to pick and chose each new policy in turn.
However, external campaigns and peer pressure could also empower diversity staff,
albeit within a limited sphere of activity.
3. Implications of the research findings
The findings above have a number of implications as regards the impact of the
external campaigns about diversity in the large law firm sector and measuring the
effectiveness of the developments which are already underway within firms.
First, the research suggests that it is important to reconsider the means by which law
firms’ progress as regards diversity is measured. This is a pressing issue- indeed it has
recently been suggested that firms themselves do not know if particular policies are
working.85 Such efforts as there have been to date to measure the impact of law firms’
activities have focussed either on noting particular outward-facing policies or using
voluntarily disclosed data. This research suggests that both methods are of limited
usefulness.
As noted, discussions of law firms’ progress are often limited to acknowledging those
which have a particular policy in place (such as the appointment of diversity staff or a
statement) or have signed up to a scheme such as the Law Society’s Diversity Charter.
85 BSN (n 27) 16-17: ‘many of the firms in our survey may have little chance of finding out whether
recruitment, retention or promotion are driving any changes as many did not return this information.. unfortunately it would seem that companies (sic) with little idea of what is driving diversity in their firms already have retention, promotion and outreach schemes. In some ways this is like finding a solution before one has a handle on the specifics of any potential problems..’
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While it is certainly possible that there will be individual beneficiaries from certain
groups within law firms as a result of the presence of such schemes, as this research
shows it can be misleading to use the such developments as signs of progress, when in
practice the debate within the organisation about the diversity approach remains
largely unresolved. This is confirmed by analyses based on large-scale surveys of
workplaces in the UK which argue that taking certain policies as signs of real progress
within an organisation can be misleading because initiatives (especially in the private
sector) can often be ‘empty shells’86 leaving a ‘gap between policy and action’87 and
result in ‘relatively little change in long-standing patterns of job segregation and pay
disadvantage’.88
Focussing on the data published voluntarily by law firms is another common way of
trying to work out if law firms are ‘improving’ as regards diversity. However, despite
the growing number of initiatives designed to flush statistics out of large law firms
there are serious difficulties with using this information for these purposes. Not only
does this disclosure remain voluntary89 as regards both participation and choice of
content but firms which do publish data use different methodologies (affecting the
definition of different ranks of staff, involvement of foreign or regional offices, dates
and frequency of data collection, the categories used to breakdown the workforce and
so on). As such, the data published is limited in important ways (e.g. the consistent
failure to breakdown the ‘ethnic minority’ category further and the absence of data
which goes to social background). Most importantly, historic data is not made
public.90 These methodological issues makes firms’ data a problematic source for
objectively testing longitudinal changes within the sector or for testing the effects of
particular policies.
86 K Hoque and M Noon, ‘Equal opportunities policy and practice in Britain: Evaluating the ‘empty
shell’ hypothesis’ (2004) 18(3) Work, employment and society 481. This analysis is based on the 1998 UK Workplace Employee Relations Survey which included a survey of managers comprises 2191 workplaces and 28,420 employees observations from workplaces within the managers’ survey. (ibid, 485).
87 Dickens (n 16) 180. 88 Ibid, 181. 89 For example, the BSN data shows that 30 more firms took part in its survey in 2007 than 2009. BSN
(n 27) 106-7. 90 With some rare exceptions; for example, Allen & Overy displays its diversity data from 2006, 2007
and 2008. Allen & Overy (n 73).
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All this suggests that more of the same disclosures by firms will not help to address
the specific question of whether those (limited) policies which are in place in the large
law firm sector are making a difference. Rather, there is a need for the regular
collection of more rigorous, co-ordinated data about the workforce across this sector.
Indeed, the Solicitors Regulation Authority (‘SRA’, the regulatory body of the
solicitors’ profession) has recently noted that ‘one of the challenges faced by the SRA
has been the lack of sufficient data about the profession’ and it remains to be seen if
its own, ongoing ‘diversity census’ will help to address the gaps and if it does so,
whether it will be repeated periodically.91 More ambitiously, there is clearly potential
for a large- scale quantitative and qualitative cohort study along the lines of that run
some years ago by Shiner92 or that co-ordinated by NALP in the US.93 Ideally, this
would follow the experiences of a large number of lawyers joining law firms from
recruitment over ten to twelve years, which would span entrants progressing through
the ranks of the firms and in some cases through the ‘tournament’ to partnership. As
they did so, such research should be designed to capture participants’ experiences if
and when they came into contact with the initiatives discussed in this paper.
However, the findings discussed in this paper also suggest a more fundamental task
which needs to be resolved in terms of the diversity campaigns targetted at large law
firms.
As the result of change remaining voluntary and not strictly enforced, I have shown
that the debate about how the diversity approach should affect large law firms its left
to play out within individual firms. However, in this context the dilemmas which
remain unresolved within the diversity campaigns, as to the objectives and the
transformative possibilities, are either not resolved at all or are not resolved in ways
91 A Townsend, Chief Executive of the Solicitors Regulation Authority, ‘Statement of Support’ in BSN
(n 27), 22. 92 See n 4 above. 93 The National Association for Law Placement, which is a US-based ‘not for profit educational association established in 1971 to meet the needs of all participants in the legal employment process’. About NALP, available at http://www.nalp.org/whatisnalp Research commissioned by NALP includes the landmark ‘After the JD’ project which is ‘a longitudinal study of the career choices and subsequent career progression of a national sample of lawyers who were first admitted to the bar in the year 2000’. It has more than 4,500 participants who were surveyed in 2002, 2007 and will be again in 2012. For a discussion of the methodology and early findings, see G Z Wilder, ‘Women in the Profession: Findings from the first wave of the After the JD study’ (NALP, 2007) 5.
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which threaten to disrupt the status quo. As a result, policies are being rolled out but
they are incremental, tempered and cluster around certain issues which are broadly
regarded as uncontroversial, paradigmatically the ‘leaking pipeline’ of women
lawyers. Even though there is some evidence that a growing number of different
groups are taking part in employee networks and so on, the overall effect is that which
Squires discusses in a different context, namely a ‘hierarchy of rights’94 whereby the
position of marginalised groups in firms are addressed, if at all, according to which
policies are feasible at any given time. The effect is also one, of course, which runs
counter to the theory underlying the diversity approach which focuses on individuals
and on transforming the institution rather than on supporting particular groups within
it.
This all suggests that internal discussions within individual law firms are not the right
forum to resolve in a principled way those difficult questions about how diversity
approach might apply in this context. There is therefore a strong case for those
tensions which were discussed in the first part of the paper- as regards the dilemma
between group-based approach and supporting each individual, the implications for
the status quo and the overall objectives of diversity approach in this context- being
addressed not within the privacy of firms but in an open, collaborative way between
firms, their regulators, campaigners currently exerting pressure on firms and other
interested parties. Greater clarity about the goals firms should be working towards
under the banner of diversity would give diversity staff the means to address more
difficult and controversial issues within firms. It is also a pre-condition of more
effective accountability. The research considered here suggests that until these issues
are addressed in an open way rather than remaining the subject of compromise within
firms, bringing about change within large law firms will continue to be a challenging
task, with vague goals and uncertain outcomes.
4. Conclusion
The paper has located current developments as regards diversity in large law firms
within the broader debates about the diversity approach. It has argued that in order to
appreciate the nature of the changes currently underway in large law firms, greater
94 Squires (n 20) 523.
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attention should be paid to the processes of diversity policy-making in those firms.
Exploring the dynamics within firms, and in particular taking account of the
perspective of diversity staff, shows that the many external campaigns targetted at
large law firms are having some effects, but to the extent that campaigns are limited,
conflicting or unresolved, this is also having an impact on developments. Overall, the
paper has suggested that a greater understanding of the background to those policies
which have emerged to date helps to inform the ongoing debates about holding law
firms accountable for diversity and shows a pressing need for greater clarity as to the
objectives of these efforts.
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Appendix: Research methodology
This paper draws on research into the exogenous drivers and the internal decision-
making processes behind large law firms’ engagement with the ‘diversity approach’
to equality management.95 During the course of the research 17 semi-structured
interviews were conducted by the author with diversity staff and lawyers from 13
large law firms, diversity staff in clients of those law firms and a Minister from the
Department of Constitutional Affairs. All interviews were conducted between
February and June 2007.
The sample of large law firms was purposive rather than random.96 Interviews were
conducted in ten of the top 15 UK law firms by turnover according to The Lawyer.97
In addition, one was conducted with the former senior partner of another firm in the
top 15 list, while two were conducted with interviewees from the London offices of
large law firms which were headquartered outside the UK. Both of these firms were in
The Lawyer’s ranking of the top 25 global firms by turnover.98 In each case the
interviews were primarily concerned with matters in firms’ London offices rather than
in their offices overseas or elsewhere in the UK, if applicable. The research
acknowledged the disparities between the firms in the sample but rather than
exploring these differences, sought to pursue the research questions across what
scholars have consistently regarded as a distinct sector of the legal profession in the
UK. Collectively, this paper refers to the firms involved in the research as ‘large law
firms’.
After conducting the interviews, the data was transcribed and anonymised as to firm
(or other employer) and interviewee. Quotations in the paper without references are
extracts from these interview transcripts which are on file with the author. The data
95 Kirton and Greene (n 11) 96 i.e. chosen because they shared the features of interest to the researcher. D Silverman, Doing
Qualitative Research: A Practical Handbook (Sage Publications, 2003) 104. 97 The Lawyer, ‘The Lawyer UK 100: The top 1-25’ (2006) (on file with the author). The top 15 firms
on this list are: Clifford Chance; Linklaters; Freshfields Bruckhaus Deringer; Allen & Overy; Lovells (as it then was); DLA Piper; Eversheds; Slaughter and May; Herbert Smith; Simmons & Simmons; Ashurst; Norton Rose; CMS Cameron McKenna; Pinsent Masons; and Addleshaw Goddard.
These rankings were also used by the Department of Constitutional Affairs in order to identify the top 100 firms to write to about diversity, as discussed above. Department of Constitutional Affairs (n 4).
98 The Lawyer, ‘The Lawyer Global 100’ (2006) <http://www.thelawyer.com/global100/2006/index.html>
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was analysed using grounded theory99 which develops theories and concepts in a
flexible way as the research unfolds.100
99 B Glasner and A Strauss, The Discovery of Grounded Theory (Aldine, 1967). 100 D Layder, New Strategies in Social Research (Polity Press, 1993) 19, noting Layder’s ‘wider