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Diversity paper: Call to firms to push for inclusion in the profession

Diversity paper: Call to firms to push for inclusion in the profession

By Sam Pandya

Diversity Opinions 

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LIV president Sam Pandya’s new paper ‘Positive Action, Lasting Change: Advancing cultural diversity in the Victorian legal profession’, extracted here, recommends firms drive ethnic and cultural diversity at all levels.

As 2020 LIV president, I believe it is time for the Victorian legal profession to take more proactive measures to promote ethnic diversity so that the profession reflects our multicultural society, better meets the diverse legal needs of the community and contributes to the talent pipeline into the senior echelons of the profession and the judiciary.

A positive duty on employers to take measures to eliminate race discrimination has existed in Victoria’s Equal Opportunity Act for 10 years, but it appears to have resulted in little significant change in ethnic diversity in the profession.

This is concerning because ethnic diversity across the profession and judiciary is important for many reasons, including:

  • ensuring that the most talented practitioners start and develop their careers as solicitors helps to maintain high standards and bolsters trust and confidence in the profession to understand and respond to the needs of the community
  • monitoring and addressing discrimination against lawyers from minority ethnic communities improves the profession’s effective representation of, and service on behalf of, multicultural Victoria
  • the likelihood that some members of our community are more likely to seek legal assistance from solicitors with shared ethnic or cultural heritage, which improves access to justice, 
  • an effective justice system, where there is respect for the independence of the judiciary and the rule of law, relies on a diversity of thinking, experiences and perspectives.

The existing collection of data by the Victorian Legal Services Board and Commissioner (VLSB+C) and the LIV, commenced in 2020, is an excellent start. It gives snapshots of the ethnic background of people who hold practising certificates, graduates and law students in Victoria. But it does not assist in making significant progress towards cultural change and improved ethnic diversity outcomes for a number of important reasons, including: 

  • it does not help to understand the number and percentage of culturally diverse lawyers employed in private law firms, in what capacity and whether they are promoted in firms or represented at all levels of the profession
  • it does not encourage law firm employers to audit or monitor their ethnic and cultural diversity profile, policies, practices or outcomes and make informed decisions about initiatives to address barriers to diversity to achieve cultural change
  • it does not provide opportunities for law firms to compare themselves to industry benchmarks or standards across the profession or to celebrate their achievements over time or in comparison with other law firms.

To satisfy their positive duty, Victorian law firms should collect and report their organisation’s ethnic composition to the VLSB+C or LIV (upon delegation) every two years. This obligation would identify the cultural make up of law firms, highlight trends and encourage and advance ethnic diversity by informing measures to address any barriers to diversity and inclusion and create employer accountability for improvements.

QUESTIONNAIRE
  1. What is your ethnic group?
  2. In which country were you born?
  3. Do you speak languages other than English? 
If yes, what are they?

I recommend all law firms provide (or incorporate into their recruitment processes) a questionnaire to all staff with three questions relating to their ethnic background and that law firms should report the data to the VLSB+C or LIV in aggregate form bi-annually so that a report on the legal sector can be published on the regulator’s website (Part 8). While individual employees can indicate they prefer not to answer (for privacy reasons), employers should report the data they do collect. No information identifying a practitioner would be reported or published. Firms which do not report the data would be encouraged to do so by offering them further advice and assistance on its importance and benefits to the firm, profession and community. 

Starting my career in London in the 1990s working for the UK Civil Service, I recall completing government application forms, employment, tax and others which asked for information on ethnic and cultural heritage and identity, as well as disability and socioeconomic background. It was routine and widespread. Disclosure of this kind of data was not considered out of the ordinary. The community seemed to accept that this information helped government understand the cultural makeup and diverse experiences and needs of its citizens and employees so it could recruit fairly and provide appropriate services. Often, providing this information was mandatory and people were generally comfortable with that. I worked for the government for five years and saw that civil servants came from all ethnic backgrounds and reflected the diverse London community I grew up in.

I then moved to Australia and, except for a short period back in the UK, I have worked as a private practitioner here ever since. Australia is a modern, developed country that prides itself on its multiculturalism, so I was surprised to learn that, with the exception of First Nations people, the UK-style diversity questions were not asked in job applications or when accessing public services.

When I first began working in Australian law firms, I was disappointed to see that the legal profession, particularly at the senior levels, did not reflect the rich diversity of the community. I was also concerned, when appearing in courts and tribunals, that members of the Bar and judiciary, those who appear and administer justice, were limited in the diversity of their backgrounds and experiences. It troubled me that an absence of ethnic and cultural diversity in the profession and judiciary, or the perception of that, could, if not addressed, threaten the reputation of the profession and system to properly administer justice.

The Victorian legal profession is ready for change but it seems somewhat at a loss as to how to achieve it. I have had many discussions with leaders of the profession during my year as president of the LIV. They have commended the work that I, the LIV and other diverse cultural groups of legal practitioners are doing to promote greater diversity and clearly want to see change. However, my observation has been that many in the profession are searching for guidance on the best way to achieve change, particularly in the competitive environment that is modern legal practice. Talking about the issue is easy, achieving lasting change is harder. I see this report as one strand of the guidance required. It is asking all of us, from large multinational firms to sole regional practitioners, to invest a little at a time. The recommendation outlined here allows all of us to take ownership and be accountable for advancing ethnic and cultural diversity, by being transparent about our workforce and putting the onus on each employer to play their part so we can understand and respond to the diverse needs of our system, profession and clients.

I recognise the tremendous amount of work that has been done by many in the legal profession to raise awareness of the benefits of ethnic and cultural diversity via panel discussions, articles and commentary. This should of course continue but the time for action is now with this diversity data collection and reporting framework, with all sectors of the profession working in tandem for positive change. Together, we can work towards understanding and monitoring progress and target areas that require priority.

Who is asked?

  • Solicitor partner (sole practitioner, principal or director)
  • solicitors (not partners)
  • other fee earners (trainees, paralegal)
  • fee earner support (legal secretaries and assistants, non-fee earning paralegals)
  • managers (non-lawyer partners, directors, practice managers, finance or account managers)
  • IT/HR/other corporate services
  • costs lawyer
  • conveyancer
  • barrister.

This recommendation seeks to create a shift in the profession towards investing in, and taking ownership of, the importance of ethnic diversity at all levels of law firms. This ownership will encourage firms to regularly monitor their cultural diversity profile, policies and practices to address barriers to diversity and give firms opportunities to compare themselves with industry standards, celebrate their achievements and attract and retain the best talent. 

To successfully implement this recommendation, the VLSB+C should ensure it works collaboratively with diverse groups such as the African Australian Lawyers Association, the Muslim Legal Network, the Asian Australian Lawyers Association and others. These groups have strong links in the profession and the community and are well placed to advocate for the importance of the data and the benefits to our firms, profession and community. These groups are essential partners in supporting our profession and can highlight the commercial benefits that stem from increased ethnic and cultural diversity at all levels and help educate diverse sections of the community about the important work the profession is doing to address barriers to diversity and inclusion in the profession and the judiciary.

The VLSB+C, together with the LIV, should also consult widely with stakeholders, including representatives from the large law firms, regional and suburban law associations, government, LIV members, sections and committees seeking feedback, answering questions, providing information and guidance and highlighting the benefits of this recommendation to the profession, practices and the community.

As the first LIV president of Indian heritage in the 161-year LIV history, and as a leader and man of colour, I feel it is my duty to make this recommendation to government, the VLSB+C and the profession. By shining a light on the issue of cultural diversity in our profession and the commitment and determination required to achieve it, I hope to pave the way for lasting change for the profession, the community and all diverse lawyers into the future. ■


Sam Pandya, LIV president

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