Tag Archives: equality and diversity

City Law School, City University: widening participation in the Legal Professions (July 2015)

Let’s start with some figures.

Based on the last Bar Barometer report, which gives figures through to 2012, half of new entrants to the Bar and around a third of the practising Bar are now women: over 5,400 out of some 15 and a half thousand practising barristers. That’s progress. But only some 12% of self employed QCs are women. 82% of self employed QCs are men.

45% of the employed bar are women. Something over 1,200 out of 2,700. In itself that’s good but it also reflects the fact women are more likely than men to leave self employment. Proportionately more women leave self employment and they do so earlier in their career trajectory. The 2011 exit survey found as many as half of women leavers were leaving in the first 7 years of practice.

There are many fewer QCs at the employed bar. Only 26 in total, 3 of whom were women. That’s 0.2% of women at the employed Bar, who’ve achieved the rank of QC. I would be prepared to bet many of those individuals probably achieved that rank before they switched to employed status. By way of comparison 4.5% of women at the self employed bar are QCs.

As matters currently stand, your chances of making QC are very much smaller if you abandon self employed practice for employment and a much higher proportion of women do just that.

You would find a similar pattern for black and minority ethnic barristers. More of them leave the self employed profession for employment.

The fact is that as the legal profession is currently organised, employed barristers find it much more difficult to gain the necessary high level advocacy experience to support an application for silk.

Knocking around in the lower courts whilst relatively junior is one thing. Liberating senior individuals from other demands on their time so that they can prepare substantial court cases is just not a model many law firms have found profitable. When it gets big and complex, most of them prefer to out source to the Bar and it is the big and complex stuff that gets you silk. You may have a very rewarding and interesting career as an employed barrister in an SRA regulated law firm but if silk is what you are after you’re unlikely to get it by that route.

If, therefore we are taking as our measure of progression, achievement of the rank of QC then we need to crack that in one of two ways:

Either: we find ways to retain women and minorities within the self-employed Bar, instead of seeing them vote with their feet a few years into practice.

Or: those at the Bar who want to do so band together to establish advocacy focussed firms, so that there’s the option of pursuing a career as a specialist advocate to the level of silk, whilst being employed.

Or both.

We know from exit surveys that women and black and ethnic minority barristers are more likely than white men to cite financial factors for leaving, uncertainty about their income or not earning enough.

Women are much, much more likely than men, of any ethnicity, to cite as reasons for leaving pressure of work, inflexibility of working arrangements, a sense of lack of support from clerks and colleagues and desire to spend more time with their family.

What is to be done?

Self employment at the Bar is a very tough path and people need to be realistic in their expectations about that. Nothing is going to change the fact that getting a trial up is exhausting, stressful work. Not knowing where your next piece of work is coming from is just as stressful in a different way.

But there are things we can do to make this more tolerable.

First, the financial factors.

Everything tells us that there’s an earnings gap by gender in society at large, which is mirrored at the Bar, and my own observation is that gap opens up early, starting even before women have children. Then as they do have kids, it makes it harder for them to afford the kind of child-care that you need to sustain the flexibility your practice needs. Some of the reasons for that may lie in women not being at ease with their own worth – L’Oreal came up with that slogan for a reason.  In the wider world there’s a lot of research about the way women fail to do themselves justice in pay negotiations and I imagine there’s the same phenomenon at the Bar. Let’s all mentor ourselves and each other in demanding our dues and make sure our clerks support us in doing so.

We need to ensure everyone has an equal crack of the whip in winning work on their merits. Under the code of conduct, the BSB requires work allocation to be monitored. I did that job for 7 years for my chambers, together with a male colleague. We developed very detailed reports which analysed the data, cohort by cohort, anonymised by gender and ethnicity for the whole of chambers, not just our most junior members. I analysed not just the allocation by the clerks of work that came in unallocated but also the relative success of individuals in converting opportunities to work and in winning work that came to them by name. The information these reports produced were hugely useful in creating a picture of what positive career progression should look like and spotting when someone appeared to be out of kilter and a helping hand might be needed on practice development.

My impression, but I would be the first to accept mine was far too small a sample to generalise from, was that women might be finding it harder to progress to winning work in their own name in what you might call “hard core” commercial work, as opposed to regulatory work.

I think it would be hugely constructive if we could look in a collaborative way at this from both sides of the profession. What research tells us is that interviewers tend, without even being conscious of it, to select people like themselves.  Well-intentioned, right-thinking people do this, unless they are taught how to intercept and challenge their own unconscious assumptions.  And that’s, of course, exactly why we all now recognise the need to train people in equality and diversity if they are on an interview panel. But decisions as to who to instruct at the Bar are typically made by the senior ranks of law firms, and the vast majority of those in the senior ranks are white and male. When they phone up asking for a big hitter for their trial, what mental image will they have in mind? Law firms are doing lots of good work to address the issues around career progression in their own ranks. Initiatives like the Law Society diversity charter are greatly to be welcomed. But perhaps we could together extend that work to ensure that those instructing the Bar are alert to their own unconscious assumptions and don’t fall into the trap of assuming that the little 5 foot blond woman barrister isn’t the big hitter they are after. She may be the next Jonathan Sumption.  The same is equally true when what’s in issue is patronage within chambers, when senior members of the profession are asked who to recommend be brought in as a junior or vice versa.

Next, the biological factors.

Last I looked most of my male colleagues had kids. Assuming you have a partner in parenthood, this is a shared challenge. I have three children, and although they are now getting very grown up I haven’t forgotten the challenges of having a young family and a self-employed practice. Crucially, I have a husband who was willing and able to rise to his share of the challenge. Equally crucially, love my children though I do, I never had the ambition to be a Tiger mother, hovering over them as they simultaneously do their Kumon maths whilst practising the violin. If you are going to combine a career at the Bar and motherhood, you are going to have to relinquish control to others. If it’s his turn to mind them while you get on with some work, don’t back seat drive.

A self employed work pattern has pluses as well as downsides so make use of them. You are doing a case involving heavy paperwork. Work from home and break for tea with the kids when they get back. You may have to go back to your desk when they’re in bed but you’ve not been in chambers until 11 at night without seeing them. Your case settles. Leave early and surprise them at the school gate. You don’t have to meet anyone else’s billing targets as long as you can pay your own bills. To my mind that still does make the Bar more family friendly than the traditional route to partnership in a law firm. And if you are already trying to juggle the Bar and kids, do check out the Bar nursery.

Lastly, the emotional factors.

In my experience (and I recognise this is a generalisation) women tend to beat themselves up more over their failures. And you will have some failures at the Bar. You’ve got to be resilient but it helps if you have people to talk to about it. Don’t wait for someone to set up a mentoring scheme for you. Find your own mentors.

Above all, find the right life partner. You may think this nonPC but I am deadly serious. You need a supportive partner with whom you can negotiate. If you do have a family then practically every day will involve a negotiation over who is doing what. There needs to be give and take in that. I know one couple, both at the Bar and with young kids, doing the kind of commercial work that produces very long, heavy trials, who discuss and negotiate who gets to say yes to the next big trial. He’s taken silk. Now she’s in the run up and he recognises that she needs the court exposure more than he does right now, so she takes priority. It takes real grown ups to know when to step back and when to step forward in that sort of negotiation, and it takes real love.

So there you have it, all you need is love!

Life-work balance and other Conundrums – a speech written for a Clyde & Co women’s event, 2013

I’m addressing these issues from the perspective of the self-employed Bar. Which is to say, from the perspective of someone who has no personal experience of being employed within a law firm and who is now almost certainly unemployable.

I do however have to spend a fair amount of my time considering what the future holds for law firms, since part of my practice involves advising on applications to form Alternative Business Structures. And, as Vice Chair of the Bar Standards Board, I am also having to think about how practice at the Bar may alter in future, under the combined influences of competition, economic pressures and regulatory changes.

Perhaps later on we can debate: what are the points of similarity and difference, in women’s experiences on the two sides of the profession; and whether and how we may be able to help one another in practical ways.

I’m going to start with some stuff that risks being heard as rather down beat. Bear with me. But you can’t sensibly debate solutions to challenges unless you know what you are trying to solve.

2 weeks ago I attended an event run by the Bar Standards Board for chambers Equality officers and the keynote speech was given by Dame Linda Dobbs. She was introduced as the first and, so far, still the only black minority ethnic individual to be appointed to the senior judiciary. How does she feel about that, I wondered, as opposed to being introduced by reference to her contributions to developing the law when on the bench or her notable cases while at the Bar.

Samuel Johnson said, of women preaching, that it: “is like a dog’s walking on his hind legs. It is not done well; but you are surprised to find it done at all.” It can sometimes feel as though women who are relatively senior in the profession are pointed out as if we were freaks of nature in the same vein: the “story” is our gender rather than the substance of what we’ve done. And of course that’s not limited to the lawyers. Years ago I represented Mercury Asset Management in an epic court battle with Unilever over management of the investments in the Unilever pension fund and the media managed to turn this highly technical dispute about active risk levels within an investment portfolio into a “cat fight” between Carol Galley and Wendy Mayall, with many column inches devoted to the handbags they each carried to Court.

When appointed, Linda Dobbs expressed the hope she would be the first of many BME appointments but in fact at the time of her retirement from the bench no other BME practitioners have yet been appointed to the senior judiciary. There are still very few women in the ranks of the senior judiciary – Lady Hale is unlikely to see another woman on the Supreme Court bench during the period of her appointment, I would predict. Lord Sumption, in typically provocative mode, went so far as to argue in a speech a year ago that “We need, as a society, to have an honest public debate about the hitherto unmentionable subject of positive discrimination.”

I think that idea is anathema to most of us and, in fact, if you read the speech you’ll see he does not in the end advocate that course. But why did he even feel the need to throw down that gauntlet?
He wanted, rightly, in my view, to challenge the idea that all will be well if we just sit tight and wait for the 50% or more of new entrants to the profession who are women to make their way up through the echelons; and he wanted to highlight that the biggest challenge we now face is one of retention and career development.

The figures are pretty stark across the Bar as a whole and of course it remains the case that the senior judiciary are largely drawn from the Bar. The Bar has a very big problem with retention of women and with the fact that women on the whole earn a fraction of what their male colleagues earn over the course of their careers.

I became a tenant at Fountain Court in 1989. I was the 3rd woman ever taken on as a tenant, and both of those senior to me left chambers within a few years. 24 years later, we still have only 12 women out of 67 tenants. I am the only woman silk out of 29 silks in chambers. That pattern is entirely typical for the Commercial Bar.

In my capacity as Vice Chair of the Bar Standards Board I look at the figures across the Bar and we see women and ethnic minorities are still clustered in chambers doing publicly funded work, family law and crime, even if that was not the area of work they identified as their goal when they left Bar School. We see women leaving self employed practice for employment or leaving work altogether at a much higher rate than men, with 59% of women barristers leaving the profession before they reach 12 years call (as compared to 34% of men). 28% of those women said they left primarily because of childcare responsibilities and the other main reasons they gave were financial concerns and inflexible working practices.

A huge amount of progress has been made – and it’s important to emphasise and celebrate that.
I would hope that in today’s world few would now dare to mete out the kind of naked discrimination that Linda Dobbs described encountering in her youth.

Between 1949, when the first two women to gain the rank of QC took that title, and 1999, a period of 50 years, there were only just over 100 women made silks. It only took another 9 years to double that to 200 women ever appointed silk. By the time I took silk in 2006 I was number 176 in the list of all women to have taken silk and I believe the number now stands at 299. So, on any view, that’s an improvement. Although, to put it in perspective, it is still the case that only some 12% of QCs currently practising are women.

I was equality officer of my chambers from 2006 for some 6 years and I can say, from the heart, that we have done a huge amount of work to ensure that we have cutting edge equality and diversity policies; we have confidence that our recruitment processes are as fair and merit based as we can make them; and we carry out detailed monitoring to ensure that there is fairness in the way the clerks handle work opportunities in those situations where they are suggesting names to solicitors, rather than the solicitor coming and asking for a specific individual.

Yet we are still seeing many more women than men leaving a few years into practice. And we observe the same happening in many of the firms who instruct us: so, the women solicitors you get to know as a junior practitioner all too often are not still there as you become more senior and you lose an important part of your professional network. From the firm’s perspective, that’s a huge loss of their human capital.

So what is the solution?

I’m not such a fool, or so arrogant, as to claim I have it cracked. My own life-work balance is at best a work in progress. But here are some very personal reflections.

The first and most important is to love what you do for a living, to the point that it makes as much sense to you to talk of “Work-life” balance as the other way round. If that’s not how you feel about it, change it. Some years ago I heard about a guy who went off to India to find himself and discovered he was a lawyer. I really empathise with that guy. Being paid to argue for a living – what’s not to like? I find commercial litigation endlessly fascinating: you get windows onto other people’s very different worlds, rubix cube-like intellectual puzzles, the gladiatorial satisfactions of adrenalin and beating the other lot, or the more constructive pleasures of brokering a way out of a problem and reaching a practical solution for your client.

If you love what you do – not every single minute of every day, no one manages that, but most of the time – and if it is a huge part of who you are, then the whole business of balancing that with other aspects of who you are immediately takes on a different aspect. If you are just doing it to pay the bills, you are always going to begrudge the time it takes away from other things you value more.

I believe we at the Bar do have some advantages over law firms, in that we are self employed and therefore by definition we work flexibly. That can mean a crazy alternation between feast and famine: one week you are working through the night to meet deadlines and the next week two or three things settle or adjourn and that clears a chunk of your diary. If you can manage to ride the psychological rollercoaster of these ups and downs you can squeeze a lot of life into the pauses in between. Part time practice at the Bar, in the sense of limiting work to set days a week, may be pretty tricky to pull off, at least without a considerable impact on your practice. But in the end you are the one who gets to say when you are too busy to take on another piece of work. At some phases of your life you may hit capacity sooner than at others. Many of my male colleagues make space in their day to nip out for a game of squash – my younger women colleagues are more likely to make time to get to a child’s parents’ evening. You need full time child care, in my experience, because when these gaps will come is inherently unpredictable, and you need to be a good and generous employer so that your child care is as committed and as flexible as you yourself need to be; but if you can afford that, then this unpredictability does have some rewards.

There’s also an element here of what your own value proposition is for clients. Personally, I have never felt comfortable over-trading, stacking trials end to end or double-booking myself. I’m not a seat of pants merchant; I may grasp detail fast but I do think that detail matters, since I find cases are more often won on the facts than the law (and a nice point of law only invites appeal). I believe when clients pay for your full attention that’s what they are entitled to get. My philosophy is never to compromise on my commitment to any client I take on – and in the middle of a lengthy trial that is quite literally all-consuming – but I may perhaps take fewer cases on at any one go than some of my colleagues at the Bar would be prepared to do. That means I can get some uncomfortable downtimes, when I finish a run of things or have a number of things settle and I suddenly find myself with a gap in my diary because I haven’t got “back up” work pencilled in. I have to train myself to use those downtimes productively and not to lapse into paranoia. Not always easy, because self employment is a pretty paranoid state, but it does mean that I can, if I discipline myself, use these downtimes to catch up on non-work commitments and rebalance.

I work from home a great deal – in fact the busier I am the less likely I am to come into chambers. Whilst the women in chambers may have started this trend, many of my male colleagues follow a similar pattern. Most of what I do is delivered by email or on the phone and where I am when I do it is of no interest to my clients as long as I get the job done. When wrestling with something very complex, it’s good to be able to screen out minor distractions. When very busy, it’s a boon to gain that additional time at either end of the day that would otherwise be wasted in travel. When I am less busy, that’s the time to network and catch up on news within and outside chambers. In that respect I may be luckier than many of you in that I don’t have to manage or supervise lots of people on a day to day basis. However, I am very clear with my clerks that when I say I am working at home, I am working and contactable, and when I mean I fancy a bit of mid-week gardening then that’s what I tell them I am doing. Nothing brings working at home into disrepute faster than the idea that it’s just a euphemism for sneaking some time out.

I appreciate that much of this may seem like an unaffordable luxury when translated into the context of a firm and measured against the yardstick of the billable hours culture. But perhaps that just highlights the need for cultural change. I have seen individuals at an American law firm keep their jacket on the back of their chair, in order to appear to be already in the office at 6am, and still be at their desk at 11pm, having spent a chunk of time in between chatting about the football results and generally wasting time, some of which may later have been accounted for in ways that did not bear too much scrutiny. Scary billable hours targets and an extreme macho culture won’t necessarily breed efficiency. And billing the client to within an inch of their life may not build a sustainable business. I am not saying anything at all new in pointing out that, if they listen to their clients, law firms may in any event need to make the cultural leap from billable hours to value. In building a value proposition for clients, externally, maybe firms will be able at the same time to build a more flexible approach to how, internally, they value and reward the contributions that individuals make to building the business of the firm.

Another, and related, part of that value proposition is this: all work and no play makes Jill a very dull girl. Relentless work, without respite, is not a recipe for creative thinking or intelligent risk-taking (as opposed to being a recipe for 3 a.m. cock ups which create risk of an unintended kind and are great news for those of us at the Professional Negligence Bar). Karl Marx anatomised the phenomenon of “alienation”, where human beings become cogs in the machinery of a newly industrialised world, condemned to repeating routine tasks which allow no self expression. We now face the economic challenges of a very different developmental stage. In Richard Susskind’s terms, legal services are going to divide ever more sharply between firms that operate at the cutting edge and those that operate in the space where services have been or are rapidly being commoditised. We all need to work smarter, because harder just isn’t going to cut it. If a firm’s ambition is to inhabit the frontier, where it can charge a high premium, then it surely needs to make itself a go-to place for creative thinkers. Devoting some time to why it is that most self-employed people don’t just down tools when they’ve earned enough to pay that month’s bills, what makes them motivated and efficient, and how they arrive at a rewarding work-life balance, is not such a daft thing for a firm which harbours those ambitions to spend a bit of time thinking about.

The statistics around retention should be a real worry for firms. It would be foolish to assume that this is just Darwinian selection doing its job and an example of survival of the fittest. The selection process is not necessarily sifting out those best able to take your firm to where it needs to be in 10 or 20 years time. The risk is that it’s sifting out those who are best able to suppress every other interest in their lives and concentrate on stacking up the billable hours. In other words, it rewards conformity to a particular billing culture, which may be a poor proxy for the value which the individual has delivered to their client’s business and a poor predictor of which individuals have most to contribute to the firm’s long term development. When the paradigm changes (as I believe it will, the only question being when) firms that have staked everything on a continuation of the status quo may have lost the very portion of their work force best able to adapt to the brave new world. Giving people more freedom and flexibility about how, where and when they work in order to contribute their value to the firm may be the recipe for stemming the haemorrhaging of talent, preserving the firm’s investment in them, and indeed returning that investment with dividends, but it requires a big leap of faith and a lot of trust.

In short, I believe there is a good business case for building a firm in which individuals who are ambitious and prepared to work hard can also make time in their lives for other things which they find interesting and fulfilling, whether that be family commitments, commitments to their community or other driving interests. Yes, of course, sometimes you’ll have to drop all of that to deal with your client’s problems in the given moment; but if the moments when you have to do that start to blur into a continuum you need to start sharing those clients with others and building your lines of succession, and doing that can only be good for the sustainability of your firm’s business model as well.

Of course, the other thing that may change in all this is the partnership model, which creates what, to those outside the legal profession, looks like an artificial step change, from employee to participant in equity, timed as precisely as possible to coincide with the period in their lives when many women are most acutely challenged in balancing the demands of work and family. I can think of examples of women in very senior positions in large companies, whose packages include a significant equity stake in those companies. Their journey from junior employee to decision-maker and equity participant no doubt had its own challenges but at least did not involve a once and for all chance to pass through the eye of the needle at the very time they were in the middle of maternity leaves or life with young children. An ABS that learns this lesson may be able to mop up a lot of ambitious female legal talent.

In terms of other potential drivers for change, I would be interested in your views on whether the Law Society Diversity Charter has been effective. It has occurred to me to wonder whether there should be a matching charter as between solicitors and the Bar. That’s perhaps too large a debate for tonight and any such initiative would take time.

More immediately, I would urge on you that each one of us has a responsibility to do as we would be done by when we are in a position to hand out professional patronage. As a silk, when I am asked which junior I recommend, I must make sure that unwarranted stereotypical assumptions don’t creep into my judgments, just as I would hope that others will assess me on my own merits. When you as solicitors are asked which associate to bring onto a case, or which barristers to instruct, be alert to your own natural human tendency to fall back on assumptions and stereotypes. The same applies when you are sitting on a partnership panel, deciding whether the male or female candidate best merits partnership. We all unconsciously do it, as any number of psychological experiments illustrate, unless we get into the habit of consciously challenging ourselves. For example, when someone says to you, “we’re going to need a real big hitter for this trial”, what’s the mental image that comes into your mind of the person you are looking for? Would you more readily assume that a man would fit the bill? When you read a description of a barrister as “tough”, do you see that as a positive quality if they are male but as a slightly scary quality, which may make them a difficult personality to work with, if they are female? When you hear that someone took time off work for the school play, is your attitude more positive if that someone happens to be male? Each and every one of us shares responsibility for bringing about the cultural change required for a truly open and meritocratic society and that starts with taking responsibility for our own behaviour and being self aware about our own decision-making processes.

This horizon scanning is all very well, you say, but what can I do here and now about my own life-work balance?

Here’s where I get to my non-PC advice, which is that the biggest positive contributor to life-work balance is choosing the right life partner. If your relationship is one of mutual friendship and support, with the shared goal of each of you having a rewarding career and a functional family life, then you’re a long way there. Pretty much every day will involve negotiation about how, today, in practical terms, that’s to be achieved (most acutely, if you have young children) and that negotiation will just wear you down if you are negotiating with someone who always has to win and who will never genuinely see your goals and needs as being as worthy of support as their own. If you are the primary bread-winner, then the challenge for you is not to fall into stereotypically male patterns of assuming that your economic primacy automatically buys you a dominant position in those negotiations. It’s not the fact you’re earning more that buys you out of filling the fridge, it’s whether you’re more time-starved than your partner. Above all, where you delegate to your partner (whether filling the fruit bowl or overseeing the homework), accept it may not be done the way you would have done it yourself and think long and hard about whether a criticism is really justified before you voice it.

I don’t claim always to get this right: if you are a control freak at work it is difficult to shed the habit at home and it’s also difficult to rein in the barristerial habit of arguing the other side into submission, even when the other side is your 12 year old. But I do strive consciously for balance, over time. For example, some years ago, after a peculiarly difficult year when I was very heavily dependent on my husband to take the lead in managing our three young children whilst I dealt with a series of stressful and lengthy cases, culminating in a 6 week trial when my youngest was 5 months old, I realised he was due some payback for having put his own professional development on hold and agreed he should take up a year-long overseas fellowship, which was a once in a lifetime opportunity for someone in his discipline. We moved the family abroad for that year, I radically reduced my caseload and commuted to London on the relatively rare occasions when a face to face meeting or hearing was necessary. It was tough building up my practice again after I got back, but survivable, and three years later I was able to take silk.

When I joined my chambers, my then Head of Chambers advised me (it was his standard speech to new tenants) that my first marriage would fail, but not to worry, because my second marriage would be a great success. There was a certain amount of empirical evidence to support his view, looking around the senior echelons of the commercial Bar at the time. I could not buy in to the idea that one’s marriage should be regarded as inevitable collateral damage on the way to glittering professional prizes.

That takes me to my final point, which is that you need to define success in your own terms. If you are only doing what you are doing, in work terms, because you are still living out someone else’s vision of what constitutes a successful career, it’s time to stop and get your own life. If you are trying to combine work and raising a family, your version of parenting may differ from that of the full time Tiger mother you encounter in the school playground. Be kind to yourself. Something has to give. Your personal definition of success may be more challenging than that of some of the people you are competing with, precisely because you see it as a multi-dimensional thing. Many women, I suggest, would not dream of seeing themselves as successful if they had climbed to the top of the greasy pole professionally, at the price of a dysfunctional marriage or family life, or sacrificing along the way all the other interests that define them as a human being.

I am not saying this is unique to women. The late, great, Tom Bingham, who was a family friend as well as a mentor in the law, was for me a shining model of a man for whom a strong family life, friendships, and active participation in his community were as central to his being as his tremendous professional achievements. No doubt it also helped that he was married to someone whose personal definition of success did not, as it happens, include competing with him for the title of Lord Chief Justice. Nonetheless it is important to end by reminding ourselves that life-work balance, as such, is not a female issue, even if perhaps it is true that more women feel conflicted more of the time about whether they are getting it right. Last time I looked, most of my male colleagues in chambers were married with kids.