Article by a Thyne Scholarship award winner comparing the position in Scotland and the USA regarding diversity in the legal profession, and how it is encouraged

In September 2011, a new framework for legal education and training will be introduced in Scotland. One of the challenges considered relates to widening access to the profession, in line with the Law Society of Scotland’s commitment to diversity and equal opportunity. The statement of overarching principles for the new education and training programme includes ensuring and promoting equality and diversity throughout the education and training framework.

Today it is broadly accepted that equality and diversity are fundamental in our society. The Society defines equality as being about creating a fairer society where everyone can participate and has the same opportunity to fulfil their potential. Diversity is about recognising that everyone is different in a variety of visible and non-visible ways. It concerns creating a culture and practice that recognise, respect and value difference, and creating a workforce who feel valued and respected and have their potential fully utilised.

Call to action

Against this background, it is interesting to consider how diversity within the Scottish legal profession compares with that abroad. After spending a month speaking with members of the legal community in the USA, diversity in the legal profession there appears to be more prominent than in Scotland, perhaps partially due to necessity in a melting pot of ethnic backgrounds.

The US Census Bureau noted that in 2009, 12.9% of the USA population were of African-American origin, 4.6% were of Asian origin and 15.8% of Hispanic or Latino origin. The Minority Corporate Counsel Association, founded in 1997 to advance the hiring, retention and promotion of diverse attorneys in legal departments and law firms, recently reported that of 98 US law firms surveyed in 2010, 79% have a law firm diversity professional.

Further, in 2004, the general counsel of Sara Lee created a “Call to Action: Diversity in the Legal Profession”. This document was circulated to chief legal officers in corporations to gain their commitment to diversity in the profession. It was recognised that the legal and business interests of their clients required legal representation that reflected the diversity of their employees, customers and communities. They intended to limit or end their relationship with firms whose performance “consistently evidenced a lack of meaningful interest in being diverse”. This statement was signed by many corporations, including Wal-Mart, General Motors and Hewlett Packard.

Unclear picture

In times of economic uncertainty in Scotland, it is important to consider matters creatively. It is now more competitive to obtain a traineeship and the Society’s statistics for 2009 illustrate that the number of traineeships on offer decreased to 427, a drop of more than 200 since 2007.

Professor David Wilkins of Harvard Law School has recently noted that the turn towards market-based diversity arguments in the USA is likely to have important implications for law firms in other parts of the world. Closer to home, the Fair Access to the Professions report (the Milburn report, July 2009) considered that the UK economy would not prosper unless we harness the talent of all those who are able and aspire to make a contribution.

Although there may not be the same extent of ethnic diversity in Scotland as in the USA, there is socio-economic disadvantage. The latest Government statistics (2008) show that 17% of the Scottish population (840,000 people) live in relative low-income poverty before housing costs. Studies show that under 12% of those from the most deprived areas in Scotland, as defined by the Scottish Index of Multiple Deprivation, enter higher education, compared with 53.3% from the least deprived areas. In addition, where the former group do proceed to higher education, they are much more likely to do so at a college, newer university or the Open University and in subjects where graduates tend to earn the least (Destinations of Leavers from Scottish Schools 2006-07).

Unfortunately, there is a dearth of information in relation to socio-economic background of members of the Scottish legal profession. Other than gender, the Law Society of Scotland does not collate personal data from new entrants or the 12,097 solicitors currently on the roll. Interestingly, in England & Wales, the Legal Services Board is currently (until 9 March) consulting on a proposal that all law firms and barristers’ chambers will be required to gather and publish data about the diversity of their workforce.

The lack of monitoring and collection of data on the social background of those applying to and entering the professions has been commented on, most notably by the Panel on Fair Access to the Profession and in the 2003 research into minority and social diversity in legal education in Scotland. Clearly, without the statistics, it is very difficult to ascertain accurately the extent of any issues or whether progress has been made.

Previous research

The 2003 study, however, noted that law students are disproportionately drawn from higher socio-economic groups. The Milburn report, which applied to the whole of the UK, stated (p24) that the law remains one of the most socially exclusive professions. Top solicitors and barristers are typically drawn from middle-income families that are significantly better off than average (up to £800 per week more family income than the average, according to data drawn from Centre for Market & Public Organisation, Social Mobility and the Professions 2009). Further, more than 50% of solicitors and barristers attended independent schools, compared to just 7% of the general population.

The Law Society of Scotland has commissioned several research papers, including Women in the Legal Profession in Scotland and Equality and Diversity in the Legal Profession in Scotland. Unfortunately, in each study there was a response rate of less than one third of members of the profession. The research also did not take account of those still at school or university.

In Equality and Diversity, it was noted that there was such a small number of respondents in ethnic groups that it was “almost impossible to draw robust conclusions” (p5). However, it was considered that incidents of discrimination should concern the profession and there should be clear guidelines covering the recruitment of trainees and ongoing career development (p9). It was further suggested that it may be appropriate for the Society to have an auditing role.

In relation to attitudes and experiences, 52% of respondents agreed that social class matters, and 51% agreed that where you go to school matters (p30). Indeed, the lower the age of the respondent, the more likely they are to agree that social class matters. Respondents with parents in the legal profession were less likely to indicate that they had experienced discrimination in obtaining a traineeship (p39).

Overcoming barriers

In speaking with various lawyers and professionals in different cities and organisations in the USA, the barrier of socio-economic circumstances was often cited. It is necessary to engage with pupils from an early stage in order that the “pipeline” be maintained from school through to a career in the legal profession. This facilitates the widening of the pool of entrants.

Potential entrants may also face financial constraints. Several respondents in the USA noted the availability of scholarships, which may be based on educational attainment or financial need. However, obtaining a scholarship is very competitive and criteria may differ according to the nature of the award. One respondent was particularly supportive of scholarships, noting that they can be invaluable for some students. Nevertheless, a great number of law students are forced to take substantial loans to fund an education at law school in the USA.

While there are attempts by various groups to lessen the inequalities within society in Scotland, there seems to be a lack of a coherent and structured approach. Widening participation schemes within schools and universities is very important, and schemes such as the Pathways to the Profession at the University of Edinburgh have been recognised as leading in their field (Sutton Trust comment). The recent introduction of the Solicitor Links for Undergraduate Guidance (SLUG) scheme at Edinburgh is an important step forward to introduce students to law firms through a regular work experience programme. Implementation of links between students and law firms is crucial for students to begin to network, and understand our profession. This may assist in creating links for those with no knowledge or connection to the legal community in Scotland.

Sixteen of the 17 respondents in the USA indicated that they considered mentoring to be very useful. It was highlighted that mentoring is key to progressing diversity and ensuring employees are supported and integrated into the team. The one respondent who indicated that mentoring may not be as useful based his opinion on a “forced” form of mentoring and was of the view that an ongoing working relationship is more effective. All respondents noted that their firms had summer internship programmes.

All indicated also that networks were very important, both for entrants to the profession and more established lawyers. Networks may be between different offices in the same firm, between different firms, minority bar associations and other local networking organisations, for example the local chamber of commerce.

Practical approach

Accountability within the organisation was noted by most respondents as being crucial. This included evaluating diversity schemes and ensuring that the person charged with overall responsibility for diversity has credibility within the organisation and treats diversity as a core value.

One respondent from a large law firm indicated that a compulsory part of the annual review for their partners was involvement and commitment to diversity. Another respondent indicated it was necessary to facilitate the process for people to become involved in diversity programmes. A forced or abstract approach to diversity was ineffective.

All respondents indicated that diversity was very important for business development, as diversity evolved from being a “moral good” to also being good for business. Clients often expected the firms to have a diversity policy in place and would check that such policies were implemented in everyday practice. One respondent indicated that in having a diverse workforce, you have a wide sector of views, allowing a firm, and therefore its clients, to consider issues in innovative ways.

The year 2011 is a time of change in legal education and training. We can utilise this opportunity to achieve greater diversity in the profession with a system of coherent projects and opportunities for students and new entrants. A monitoring system for new entrants is crucial so that we may have appropriate data to allow us to evaluate the makeup of the profession, and focus on areas which need attention.

It will take a dedicated and proactive approach to succeed in transforming diversity policy into practice. The implementation needs to be ongoing: in the words of Professor David Wilkins, diversity is a journey and not a trip.

The Author
Sarah Miller is an assistant solicitor with Simpson and Marwick. She was a Link student with the GOALS (Greater Opportunity of Access and Learning with Schools) project while a student at the University of Glasgow. She was awarded the Thyne Scholarship 2009 by the English Speaking Union and spent a month in the USA researching diversity in the legal profession. The views contained within the article are her own.
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