updated on 27 August 2019
The number of firms adopting contextual recruitment practices is growing, but structural inequality and a lack of representation at senior levels mean that BAME candidates still face challenges.
“Touting a commitment to diversity has become an increasingly popular practice for law firms,” observed US attorney Henry Ibe in The American Lawyer last month. “However,” he concluded, “what we see in reality is tokenism, wherein firms symbolically recruit a small number of people from underrepresented groups to give the appearance of a diverse workforce.”
Like the US, diversity and inclusion is one of the most important and talked-about issues in the UK legal profession today, but does the talk match the reality faced by candidates? And what opportunities and help are there for aspiring lawyers from non-traditional backgrounds? This article focuses on BAME representation, where research presents a complex picture of, essentially, separate professions with different levels of diversity between smaller organisations and the elite commercial practices.
Statistical evidence is an important tool in measuring diversity, but it is also essential to understand that inclusion and accessibility – and their absence – are lived experiences, so candidates themselves must have their voices heard. The barristers’ profession, which has the greatest problem with perceptions of elitism, is a good place to start.
Just under 13% of practising barristers in 2018 were from BAME backgrounds, according to the Bar Standards Board (BSB), while the figure rises to 16% among pupil barristers. On the surface, you might conclude that exclusivity at the Bar is a smaller problem than it is portrayed as, given that at the last Census in 2011, 14% of the UK population was BAME. But a deeper look at BPTC graduate and pupillage figures reveals a different picture.
“I have had a lot of rejections in my quest for pupillage and have lost count of the number of times that I’ve been told ‘don’t worry, it’s a numbers game’ in the feedback I’ve received,” says London-based BPTC student and blogger, Blessing Park. “But when you look at the statistics, that explanation becomes much harder to process. According to the BSB, of the 1,351 people called to the Bar in 2017-18, 741 were from BAME backgrounds and 586 were white. Compare this to the numbers who started pupillage in the same period, which show there were just 71 BAME first six pupils to 390 white pupils. These figures further reinforce the extremely unfortunate perception of the Bar as an elitist institution that favours a particular social and economic background.”
Why is it that BAME candidates, who accounted for 55% of BPTC graduates in 2017-18, made up only 15% of pupil barristers in the same period? “One person who looked at my CV and gave me advice was very blunt,” remembers Blessing. “She said that I was a ‘bog standard 2:1 from Warwick’ and that at a minimum, I needed to look at doing a master’s at Oxford or Cambridge to meet chambers’ expectations.”
Research by Legal Cheek on leading chambers shows that 45% of new tenants at the 54 leading sets in 2017-18 were Oxford or Cambridge graduates. In 2016-17 the figure was almost 60%, even though Oxbridge students accounted for just 400 of the 24,000 students nationwide to start a law course that year.
The Oxbridge bias among many chambers disproportionately disadvantages BAME candidates, given that only 18% of current Oxford and Cambridge students have a BAME background, while research by the Sutton Trust shows that from 2015-17, 52% of Oxbridge places went to students from just eight elite schools, six of which are private (only 7% of children in the UK attend private schools), leaving the remaining 48% of places for almost 3,000 other schools in the UK.
“I have been directly told that chambers are looking for ‘superstars’, but the criteria that makes someone a superstar – such as a degree from Oxford or Cambridge – favour certain backgrounds,” points out Blessing. “The perception is that the Bar rewards your proximity to privilege – the resulting sentiment amongst applicants is that the closer you are to privilege or the better you are at replicating it, the more likely you are to be successful.
“I have privilege, too. I had access to good schools and am what some people describe as ‘well spoken’ – I’ve even been called posh! So this has been one less barrier for me, but I know black friends and course-mates who have been in interactions where pupillage admissions people and other members of the Bar have shut down as soon they started talking. There are expectations about not just what skills you have but your presentation of those skills, and if you have not had access to information on the behaviours and indicators that fit in, you’re not benefiting from the same privileges that others are.”
Ibe’s concern with tokenism in the US profession could equally apply to the Bar in England and Wales. “Any cursory browse of many chambers’ websites can leave you feeling as if the Bar is overwhelmingly self-replicating,” says Blessing. “Some insist there is no one set type of person that can be a successful barrister, but for some reason there is an overwhelmingly disproportionate number of people making it to the Bar from the same kind of social, cultural and economic background. Diversity is talked about a lot and there are people who will insist to you that there is equality of opportunity at the Bar, but the examples that chambers point to of tenants with non-Oxbridge backgrounds or from minority backgrounds sadly don’t reflect what prospective barristers see as the norm.”
Some 21% of solicitors in England and Wales have a BAME background, according to the Solicitors Regulation Authority’s (SRA) latest statistics, with little variation according to seniority – 20% of partners in law firms are also BAME.
However, there are differences in representation at senior levels when looking at firms by size. The largest firms (50 or more partners) have the lowest proportion of BAME partners – only 8%. This contrasts with small firms that have just one partner, where 34% of partners are from a BAME background.
Why is there such a disparity in BAME representation at senior levels between the high street and the City? It is also present when looking at gender – only 29% of partners at the top 50 firms are women despite the fact that women make up 48% of all practising solicitors. This also means that there are large pay gaps at leading firms.
The proportion of BAME partners in law firms has remained much the same since 2014, which reinforces the perception among critics and equality advocates that like the Bar, the elite end of the solicitors’ profession is self-replicating, dominated by largely white, male partners from the same socioeconomic and educational background promoting people who ‘fit in’ with them.
Link the number of BPTC places to the number of pupillages
Addressing the Bar, Blessing proposes that “students should not be required to pay for the BPTC unless they are certain that they will complete pupillage, which can be achieved in one of two ways. Firstly, the BPTC could be made conditional upon an offer of pupillage. This would ensure that candidates are not forking out nearly £20,000 to enter into a ‘numbers game’.
“Alternatively, I have heard that in past years getting a pupillage was by no means as difficult as obtaining tenancy. A revised version of this system could see a capped number of students on the BPTC which reflects the availability of pupillages in the country. This would ensure that students are not spending inordinate amounts of money on an uncertain and unpredictable recruitment process. None of these ideas are new and many have spoken about the need to address the structure of the BPTC and pupillage recruitment process as a matter of urgency.”
Mentoring and diversity schemes
Mentoring and careers advice from senior role models and diversity organisations is an important aspect of increasing access. London-based law student Christianah Babajide participated in the Aspiring Solicitors Mentoring Scheme. “The experience was extremely beneficial to my personal growth and professional career,” she explains. “As a BAME individual pursuing a career in the law, it was helpful having a legal expert who had been through it already, willing to help me prep for job interviews or critiquing and improving application forms.
“Having a mentor also did wonders for my self-esteem and confidence, which is drilled into those fortunate enough to attend a private school from an early age and which can be lacking in other candidates. The result of the increased availability of mentoring schemes in the legal profession will provide a platform to access assistance to students from underrepresented groups. The Aspiring Solicitors programme seeks to help individuals like me, from low-income families, state school comprehensive, first-generation undergraduates and other under-represented groups in the legal profession.
“Mentoring boosts career progression and is one of the catalysts for BAME individuals being promoted and appointed to more senior positions. Most diverse individuals are in urgent need of mentors to guide them on the right path. One of the barriers individuals from underrepresented backgrounds face is lack of access and opportunity to the legal sector; having a relationship with a lawyer not only breaks down this barrier by providing access to networking and job opportunities, it also instils confidence and insight into skills and professional abilities.
“There is still a lot of work to do in addressing the lack of diversity in the legal profession, but the birth of diversity initiatives is a step in the right direction. Mentoring offers lawyers the ability to be actively involved in making our profession more diverse by using their expertise to advise and guide an aspiring lawyer.”
Strength in numbers: join your student law society
While the profession itself remains slow to respond to structural inequality, more students are coming together through student law societies to create opportunities for all members to access. University College London’s (UCL) Law for All society is a great example. It’s president, Dylan Kawende, says: “Diversity and inclusion are at the heart of Law for All. Until 2011, UCL didn’t have a law society which was open to the entire student body. Law for All is open to all students irrespective of their degree. We host a wide range of events and offer unique opportunities to our members, such as networking events, speaker-led sessions, mooting workshops, negotiation skills presentations, pro-bono work and a number of social events. With the help of Law for All, I was awarded a Freshfields Stephen Lawrence scholarship in 2017.
“We launched two new programmes this year, the buddy initiative and the CV clinic. The buddy initiative aims to provide a support network within Law for All for freshers. We aim to create a more cohesive and sociable society and encourage our members to seize every opportunity that the society has to offer.
“The CV clinic gives members the opportunity to book a one-to-one appointment with a committee member of their choice to review applications, cover letters and CVs once a month. This initiative gives our members a second opinion on applications for vacation schemes, open days and other legal opportunities.”
For Dylan, diversity initiatives are an important part of the process of making the profession more meritocratic. “In my view, the legal profession has made great strides,” he explains. “Contextual recruitment in law firms has redefined what it means to be talented without diluting the role of a lawyer. Law firms that offer financial support for students from lower-income backgrounds are making the legal profession more accessible. More of this needs to be done.
“My concern is that some law firms - or at least some individuals in law firms - are conflating equality of opportunity and equality of outcome in a way that threatens the entire diversity and inclusion project. When I speak of issues affecting me as a black man, I’m not supposing that such a thing as a ‘black man’ exists in nature. Instead I speak of the historically contingent fact that ‘black’ as a racial category continues to persist in the minds of many.
“If we want to improve representation, we have to engage with the complexity of individual rather than group characteristics. There are core skills that a lawyer requires, such as communication, resilience, assertiveness, that are indifferent to one’s identity group. By coaching the individual these skills, group identity has less primacy, as it should.”
To achieve that, the diversity drive needs to grow in scale and consistency across the profession – there is still a long way to go. “I would like to see two things happen,” says Christianah. “The first is an acknowledgement of the lack of diversity in the profession – the elephant in the room must be addressed, or it slows down any progress of eradicating the problem and finding a solution. The second is practical practices being put forward. This includes but is not limited to diversity initiatives such as mentoring schemes, CV-blind contextual processes for recruitment to eradicate unconscious bias, firms hosting professional events on the importance of diversity and inclusion, and access to scholarships and opportunities for non-Russell group attendees based on a meritocratic system.”
Josh Richman is the senior editor of LawCareers.Net.