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Diversity: Firms target structural blocks to entry

Diversity: Firms target structural blocks to entry

By Karin Derkley

Diversity 

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Law firms are trying to address the barriers that are holding back culturally diverse lawyers from senior roles.

Visit a law school or legal careers event such as the one the LIV holds every year and you’ll be struck by the cultural diversity of law students and graduates from African, Middle Eastern, Asian and Indigenous backgrounds. The impression is supported by a recent survey of LIV Young Lawyer members that shows this group reflects the cultural diversity of the wider community, with 34 per cent saying they were born outside Australia and half speaking a language other than English. 

But that diversity quickly starts to dissipate once you go up the ladder in the legal profession. Beyond the ranks of graduate and junior lawyers, the faces of those in more senior roles tend to become white and European – and at partnership level people of colour are a rarity. 

That’s something LIV president Sam Pandya is all too conscious of. Promoting cultural diversity across the profession has been a central concern during his year leading the LIV. And while he is pleased at the increased diversity in the recent data on younger LIV members, he says the lack of representation at senior levels needs to be addressed. “We need to support our young lawyers coming through the ranks who have different backgrounds and are culturally diverse to make sure they achieve their goals and have the opportunity to become magistrates or VCAT members or partners in law firms or senior associates or commissioners.”

Mr Pandya’s report, "Positive Action, Lasting Change: Advancing cultural diversity in the Victorian legal profession", has called for law firms to take ownership of the importance of ethnic diversity at all levels of law firms (see p11). As part of this he wants firms to regularly monitor their cultural diversity profile, policies and practices to address barriers to diversity and to give firms opportunities to compare themselves with industry standards, celebrate their achievements and attract and retain the best talent.

LIV Council member and Asian Australian Lawyers Association vice-president Molina Asthana is also frustrated. “Given that 25 per cent of our population is multicultural, why is it that we see so little cultural diversity in the higher echelons of the legal profession?” 

Diversity Council CEO Lisa Annese says even though the legal profession seems to have a relatively culturally diverse pool feeding into it, those people still don’t seem to be making it into more senior levels. “There’s a pretty consistent pattern across all the industries in Australia that the more senior you go in an organisation and industry the more white Anglo Celtic it becomes.”

That’s borne out by data on cultural background that was collected for the first time by the VLSB+C this year which showed that across the profession generally, 80 per cent of practitioners were born in Australia and 22 per cent speak a different language. It’s harder to pinpoint the exact proportion of partners who come from culturally diverse backgrounds, although a research study of Asian-Australians conducted by the Diversity Council in 2014 found they represented just over 3 per cent of partners in law firms and less than 1 per cent of the judiciary, even though they represent nearly 10 per cent of Australia’s population. 

Law firms are increasingly recognising the need to address the disparity between the makeup of the wider community and their own people, particularly at leadership levels. 

Herbert Smith Freehills (HSF) head of diversity and inclusion Danielle Kelly says while the firm has been proactive at recruiting young lawyers from culturally diverse backgrounds, that entry level diversity is not yet being reflected in its senior levels. “If we look at our summer clerkship and graduate pool, I see a lot more ethnic diversity in that pool than I see in the partnership, which is still predominantly white and male.”

Norton Rose Fulbright (NRF) managing partner Alison Deitz has noticed a similar mismatch. “A greater proportion of our graduates and lawyers coming through are not Anglo Celtic, which demonstrates that there has been a shift in the profession. But as people became more senior those numbers thin out.”

A lack of cultural diversity at the higher echelons of the law is a problem for a number of reasons. “It is not reflecting the talent you're getting at the entry level into the profession,” Ms Annese says. “You can’t look at the diversity of graduates coming out of university and not think that’s where the talent is. So you are narrowing your talent pool if you’re only recruiting from a certain group.”

In a multicultural society like Australia it also means the profession is still not reflecting the diversity of clients the profession is dealing with, Ms Asthana says. “If people of multicultural backgrounds do not feel adequately represented, or feel their issues are not being understood because of language, culture or social economic factors, then this is an issue of access to justice.” 

Just as importantly, it is depriving the profession of the benefits of a diverse workforce at leadership as well as entry levels. Research consistently shows that the best way to have high performing creative, engaged teams is to have people who think differently, Ms Annese says. “In law you’re in the business of solving problems, you’re in the business of thinking critically, you’re in the business of responding to challenges and formulating a process or a way out.”

Clayton Utz Cultural Diversity partner lead Ken Saurajen agrees that diversity makes good business sense. “There’s a lot of research emerging that some of the most creative organisations in the world are the ones taking a very broad and holistic view of what it means to have diverse opinions.”

So why aren’t we seeing the diversity in entry levels flowing through to more senior roles?

There are parallels with gender diversity, where women lawyers make up 60 per cent of graduates but still represent only 25 per cent of partners. And as with women lawyers, culturally diverse people are being held back by twin barriers. One is the narrow preconception of what constitutes a leader in the profession, thereby excluding those who don’t fit that mould. The other is the structural barriers that deter those outside a narrow group from aspiring to or progressing into those roles.

Ms Annese says there needs to be radical challenge to the notion of what leadership looks like. The problem with having a homogenous group of people at partnership level or in the judiciary is that they have narrow views about what it means to be a leader and what constitutes the talent required to make it to senior levels, she says. “Merit is always determined by the people in charge. And if people in charge all look the same then they’re going to determine merit as being in their own image.” 

“There shouldn't be one stereotype for a leader, says Mr Saurajen. “There are many different ways to be effective.” People don’t set out to be overtly biased or prejudicial in their decisions, he says, “but it’s about helping people to identify their own unconscious biases and how they perceive leadership rather than promoting people who look and feel like themselves”.

That narrow view of who gets to be leader can make it difficult for culturally diverse people to aspire to leadership in an organisation, especially when they can’t see anyone else like them in those roles, says Arnold Bloch Leibler (ABL) commercial lawyer Nyadol Nyuon. “There is that saying about ‘you can’t be what you can’t see’.”

Ms Nyuon says she saw no one who looked like her working in commercial law firms when she first started at ABL. The number of African-Australians in law firms is gradually increasing, but it’s still easier for them to set up their own legal practice than to move ahead in an existing law firm, she says. “It’s not just about getting people in but how we maintain them in that space so they can grow and progress within a firm. It’s fine to have people come through, but if they’re not staying because there are structural cultural issues within those organisations then we’re not going to be really making significant change.”

Ms Kelly acknowledges there can be a “real disconnect if people joining a firm at a junior level are looking at a partnership which doesn’t look like them. When people from a minority ethnic background are looking to apply to a law firm, are they self-selecting out of city law firms because they don’t see a lot of ethnic diversity in the partnerships?”

Personal injury lawyer and Muslim Legal Network president Zahida Popal says things have improved marginally since it took her two years to get a job after graduating. “Once you are able to get past that initial prejudice and secure a position within a firm, you can then show them that your work speaks for itself rather than the colour of your skin or your religion or what you’re wearing.” But she says that too often culturally diverse younger lawyers are not being given the kind of employee experiences, such as interaction with clients, that are crucial to advancing within a firm. 

“Many organisations show the number of graduates from minority groups they have hired and retained in the past year. But are (those graduates) being afforded the same opportunities and progressing at the same rate? It’s ultimately about a fair and equal employee experience for all employees irrespective of their attributes.”

What is becoming apparent is that it is not enough to wait for the situation to change with time. “You need to be proactive or you will just automatically repeat the same behaviour and keep making the same assumptions about people,” Ms Annese says.

NRF’s head of diversity and inclusion Amelia Britton says law firms need to be proactive in removing the barriers to culturally diverse people. “Many decades ago we started to pinpoint that women were not making it through to partnership at as great a rate as men. We looked into the changes that were required – things like flexible work, generous parental leave programs, and provisions so you could go and have a child when you were a partner and come back and your practice would still be there and people would support you.

“We are now trying to do the same for people of cultural diversity. That’s about ensuring people make it through to the partnership if that’s what they so desire and not having any barriers in place that mean a particular part of our talent pool doesn’t make it.”

Clayton Utz is putting in an effort to understand why people come to the firm “and just as importantly why they stay here,” Mr Saurajen says. “We want to make sure people aren’t self-selecting out because they feel there’s not a place for someone who looks like they do.”

To help inform its strategy, the firm brought in former race discrimination commissioner Tim Soutphommasane to provide them with guidance. “We did not want it to become a simple box ticking exercise,” Mr Saurajen says. “It had to be an authentic program that was going to make a difference to the people that work here, to the clients that we work with and to the industry generally.” 

HSF’s Ms Kelly says that as with gender, the firm realised it could not rely just on time to improve the statistics. “We have not been seeing the shift in numbers and ethnically diverse people in more senior roles in the same way that time alone didn't result in us seeing proportionate numbers of women coming through into senior roles. And we realised it would require some disruption to the status quo in order to start tackling that.” 

In September HSF issued a 10 point action plan for its offices across the world which includes the aim to improve the representation of people from minority ethnic groups in senior roles. As part of that it has introduced to its London office a 10 per cent target for partners of BAME (Black, Asian, minority and ethnic) background by 2025. Ms Kelly says the firm will monitor the success of the program to see if it could be applied in Australia. 

This is not a quota, she says. “This is simply ensuring we are paying attention to our full talent pool. We’re not going to promote someone into the partnership unless they absolutely meet all the criteria. It’s to ensure we’re not overlooking aspects of merit we may not have valued through our own cultural lens.” 

To the concern this could mean that people are promoted on the basis of their ethnicity rather than on merit, Ms Kelly says the argument does not hold up. “When you look at the numbers of ethnic minority people joining the firm and at more senior levels it cannot be a meritocracy to have resulted in the very low numbers that we have at those senior levels.” 

Again the parallel with women partners is relevant, Ms Kelly says. “Before we had gender targets in 2014, we had 18 per cent women in the global partnership. Unless you actually think there is more merit in men than in women, how could we have ended up with that result when we had over 50 per cent women in the legal population for around a generation?”

Ms Asthana agrees targets can help redress structural barriers that have stood in the way of people from culturally diverse backgrounds. “Targets are worth having because not everyone starts out on the same plane, so it helps to get that extra push so you can reach the same level as other people.” Targets don’t force you to take on a person, she says, “but it requires you to at least consider them and give them the opportunity to demonstrate that they have the same capability as someone else.”

Ms Nyuon is also in favour of targets as a way of nudging the way to structural change. “Targets force institutions to change, they force them to think differently because they have to deal with those people, which I think is more conducive to changing people’s perceptions than the annual one hour of cultural training. 

“What changes people’s thinking is when they have a personal relationship with other people, interacting with them and seeing them struggle with issues of belonging and identity.” ■


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