Black History Month: Does action on diversity live up to the talk?

Some of the lawyers we’ve interviewed over the course of Black History Month 2017 give their thoughts on where the profession stands with respect to diversity.

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There is so much talk about diversity now. Is there enough action to match the talk?

Esi Eshun, deputy head of legal division, UK Export Finance: So many institutions now have diversity networks, so whether this is bowing to social pressure or not, the action has begun to follow the talk. I would like to see actions led, or contributed to, by prominent people with diverse backgrounds, including people from BAME backgrounds, so that others can see the possibilities. You can argue that the lack of diversity in the legal profession has been caused by a lack of role models and pathfinders from different backgrounds. 

Maybe the actions that are needed are two-fold. Firstly, employers need to ensure that they are doing the right range of things to enable and empower people from all backgrounds to succeed. Secondly, those from a diverse background who do succeed can pave the way and keep the path open behind them.

Tobi Rufus

Tobi Rufus, executive director, legal department, Goldman Sachs: There is action and things are definitely changing for the better. I know through the work we at GS have undertaken with Freshfields and the Bank of England that the Stephen Lawrence Scholarship has made a real difference to young high achieving black males from non-traditional backgrounds who may not have had the access, mentoring and support they right deserve without such a scheme. The testament is where these former scholars are now in their legal careers.

However it’s just the start as many diverse people do not hear about opportunities available so the real challenge is the communication so that he best and brightest gets the chance to take advantage of opportunities.

Guled Yusuf, senior associate, Allen & Overy: The scale of the challenge reminds me of a story of two men walking down a road near Galway. One of the men asks, “How do I get to Dublin?” And the other answers, “I wouldn’t start from here.” Likewise, if one had the choice, one would not choose to have started with the current state of affairs: Chambers reports that, at all firms surveyed in the country, on average only 27 per cent of partners are women and 8 per cent of partners come from BAME backgrounds. Given the reality of where we are, how do we achieve greater representation of women and minorities in the profession, especially in senior roles?   

Guled Yusuf

In recent years, there has been a proliferation of diversity and inclusivity initiatives in the legal industry. Excellent work has been done to broaden access to legal careers by, among others, Rare Recruitment, the Freshfields Stephen Lawrence Scholarship Scheme and PRIME. It cannot, therefore, be said that the legal industry is entirely resistant to the rhetoric and reality of diversity. However, in my view, there remain three general challenges. 

The first challenge is that diversity can be understood in one of two ways: as simply aspirational or as a serious transformative undertaking. The legal industry will be best served if we sincerely commit ourselves to the latter and don’t simply pay lip service to diversity or use it exclusively for marketing purposes. 

The second challenge is determining which initiatives are most effective at increasing access to the profession for students from non-traditional backgrounds and for employers to adopt such measures. I have personally observed the benefits of mentorship schemes and blind recruitment in broadening access. I hope that these and other initiatives will be implemented more broadly, especially as they demonstrate their efficacy over time.  

The final challenge is retaining diverse talent so that improvements at the junior end of the profession do not amount to a false dawn. Among other things, this will likely require the profession to foster a greater culture of inclusivity (for example, by way of unconscious bias training and frequent diversity events) and promote more flexibility in working practices. 

Following on from that question, does the progress made and results achieved match up to the action taken? Have all the initiatives out there worked, or worked well enough?

TR: The results now are better than when I started out over ten years ago but there is a long way to go.

Esi Eshun

EE: I work with a wonderfully diverse group of people. My team is a genuine mix of sexes, sexualities, ages and ethnic and cultural backgrounds, all led by a fellow female from a BAME background. We all bring those backgrounds to the way we work individually and as a team, helping us to advise our clients innovatively. So then I ask myself, am I just lucky or are diversity initiatives starting to work? But when you look across the legal profession outside the Civil Service, particularly in financial and corporate areas, I think you would say maybe some of those initiatives aren’t so successful.

However, if the initiatives are giving capable candidates from BAME backgrounds some more opportunities to shine than they had before, then we are heading in the right direction.

There has been some talk about BAME associates not always receiving the right quality of work. Do you think this is a particular problem?

Felicia Hanson Ofori-Quaah, associate, Milbank: Work allocation among associates certainly has the potential to be an area where the career paths of associates with certain identities could be impeded. It is very important that teams within law firms have a fair and transparent system of work allocation in order to ensure that work is distributed fairly and that certain associates do not fall through the cracks – often you find that the associates that miss out on the “juicy” transactions are women or BAME.

It is possible that there is an element of bias (whether conscious or unconscious) that comes into play when new deals come in; partners sometime prefer to work with the same associates that they have historically worked with, rather than give work to an associate that they are not familiar with. I am not convinced that this type of bias can be completely eradicated but there are certainly systems that can be put in place to ensure that bias is kept to a minimum and work is allocated more fairly.

Bias is often present in circumstances where there is the ability to exercise discretion with no transparency or accountability. If teams are not transparent in how work is allocated, or there are no real procedures in place regarding work allocation and therefore it is left to the discretion of the relevant partners you will often find that those who lose out the most are underrepresented minorities, and women.

Claudius Sokenudeputy general counsel, Andeavor: Yes, it is often difficult for minority associates to get sustained and progressive work. However, the way to address that is to seek out the work and affirmatively ask for it and then do a fantastic job when you get the assignment you want. Make yourself indispensable to the team or partner from whom you want work. If at first you don’t succeed in getting the type of work that you do, ask and ask again.

Conversely, partners have an obligation to assign work fairly and to give minority associates a fair shot. Clients should demand a diverse team on their matters.

How do you feel about diversity ‘schemes’ and ‘initiatives’ in general?

Felicia Hanson Ofori-Quaah

FHOQ: If the purpose of a diversity scheme or initiative is to start a dialogue, educate and have SMART objectives against which its effectiveness can be measured, then it is more than welcome. I do find however, that there are a lot of schemes and initiatives that merely serve as a box ticking exercise with no real purpose.

The existence of a scheme in itself is sometimes seen as enough to be viewed as promoting the diversity agenda – that sort of mind-set means that there is very little incentive or reason to monitor progress and ensure that any diversity objectives are being met and if not, the reasons for failure. Additionally, schemes need to focus not just on diversity, but encourage an environment that is truly inclusive.

When it comes to diversity, what do you think is the legal profession doing well?

FHOQ: When it comes to diversity as a whole, the legal profession has become cognisant of the need for it, and its advantages. There is certainly a lot of publicity that has been given to law firms that have set their diversity agenda – many of which is to increase the number of females in senior positions, particularly as equity partners. The LGBT diversity agenda has also gained traction it seems to me, although I have not seen any definitive data as to the make-up of LGBT partners in the profession.

Of course there are so many facets to diversity and I find that the profession has prioritised some over others; e.g. it seems to be a priority to focus on the promotion of women in law firms, and little is often said about the promotion of lawyers who come under other diversity headings – in particular BAME associates and associates with disabilities.

And what’s the single biggest problem when it comes to BAME diversity in the profession?

FHOQ: Retention and promotion of BAME associates. There is generally not a massive problem recruiting BAME graduates into law firms. However between 2-5 years pqe they start to either leave the profession altogether or leave private practice to take up roles in-house – I know that there is usually natural attrition at this level anyway but I believe it is higher among the BAME group. By way of example, when I was doing the LPC, there were a total of six black students, including myself. Four out of the six students had their first degree from Oxbridge and had secured training contracts with magic circle firms. We were all very ambitious and able black students who were looking to make careers for ourselves in the legal profession.

Today, I am the only one who remains in private practice – there is no doubt a systemic issue in the legal profession which needs to be addressed if the profession wants to retain and promote black lawyers.

Claudius Sokenu

CS: Firm leadership must openly and consistently commit to true diversity for it to have a serious chance of success. Some call this tone at the top.

Absent that, I am afraid no amount of glossy diversity brochures and dedicated websites will solve the dearth of lawyers of colour at law firms. Substantial effort and resources must be committed to recruitment, retention and promotion of diverse candidates. It sends a message when there are no diverse lawyers in firm management and other leadership positions.

From my own experience, it was impactful when I became the first black male partner at Shearman & Sterling. Moreover, clients are also increasingly demanding to see a diverse bench when they hire outside counsel. Whatever the motivation, investing in the recruitment, retention and promotion of diverse candidates is a societal good and a business imperative.