diversity staff and the dynamics of diversity policy- making in large

This is the pre-edited version of the following article which will be published in final form at (2010) 13(2) Legal Ethics in December.

1

Diversity staff and the dynamics of diversity policy-

making in large law firms

Joanne P. Braithwaite∗∗∗∗

Abstract

A number of high-profile campaigns relating to diversity have focussed on the large law firm sector since the mid-2000s. Reflecting what has been called the ‘diversity approach’ to equality management, they have emphasised voluntary action based on business case reasoning. This paper considers the impact of these campaigns in practice, focusing the dynamics of diversity policy-making within firms. Drawing upon empirical work conducted in large law firms, it explores in particular the perspective of newly appointed diversity staff who have day to day responsibility for diversity policies in the majority of large law firms. It discusses research findings that show while certain policies were being implemented across the large law firm sector, much turned on the position of diversity staff within firms and their ability to conduct in-house negotiations effectively, to compromise and downplay the potential for disruption to the status quo. On the basis of this research I consider the ongoing debates about holding law firms to account with respect to the diversity of their workforce. While the strategy of pressurising firms to disclose ‘diversity data’ seems to gather pace the paper recommends an open discussion about the goals of diversity policy making as a pre-condition of greater accountability.

(200 words)

∗ Department of Law, London School of Economics and Political Science


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Diversity staff and the dynamics of diversity policy-making in large law firms

Joanne P. Braithwaite∗∗∗∗

Introduction

Various formal and informal campaigns about diversity have focussed on the large

law firm sector, gathering momentum from the mid-2000s. These campaigns are

largely consistent with what has been called the ‘diversity approach’ to equality

management, notably in their strong emphasis on voluntary action based on business

case reasoning. However, the literature suggests that such campaigns may be

problematic as a driver of change in the large law firm context, not least because there

is a lack of strict enforcement, blurred objectives and a failure to recognise the

resilience of the law firm status quo.

Having considered the nature of these campaigns with reference to the conceptual

framework of the diversity approach, I go on in this paper to look at the impact of

these campaigns in practice, focusing on the dynamics of policy-making within firms.

Drawing upon empirical work conducted in large law firms, the discussion explores in

particular the perspective of newly appointed diversity staff who have day to day

responsibility for diversity policies in the majority of such firms. It considers the

research findings that the debates about the diversity approach were being internalised

within firms and that the tensions and other ‘difficult issues’ as regards the

applicability of the diversity approach in this context remained unresolved. On the

basis of the findings, I then consider the ongoing debates about holding law firms to

account with respect to the diversity of their workforce and, more generally, the

implications of the arguments for the future of the external campaigns directed at this

sector of the legal profession.

∗ Department of Law, London School of Economics and Political Science


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1. Diversity campaigns targeting the large law firm sector

The UK-based large law firm sector is well-known for its phenomenal growth,

especially since the 1980s. This boom has been attributed to factors including the de-

regulation of the City of London, facilitative state policies in the 1980s and 90s such

as privatisation, globalisation and the increased specialisation of international

corporate and finance-orientated legal work.1 According to the Law Society’s latest

figures, there are currently 60 law firms in England and Wales with over 81 partners,

42 of which are based in the City of London.2 As at 2009, such firms represented

0.6% of the total number of law firms in England and Wales and employed 25.6% of

all solicitors in private practice.3

However, this sector has persistently maintained a problematic record on diversity, as

has been evidenced by many years of research.4 Perennial issues include the fate of

candidates from non-traditional backgrounds seeking entry into the sector and the

stubborn ‘glass ceiling’, still in place though women have made up the majority of

entrants to the profession for over twenty years.5 However, the debate is now

1 For example, see M Galanter and S Roberts, ‘From kinship to magic circle: the London commercial

law firm in the twentieth century’ (2008) 15(3) International Journal of the Legal Profession 143; G Hanlon, Lawyers, the State and the Market (MacMillan Press, 1999); and J Flood, ‘Megalaw in the UK: Professionalism or Corporatism? A Preliminary Report’ (1988-9) 64 Indiana Law Journal 569.

2 B Cole, N Fletcher, T Chittenden and J Cox, Trends in the solicitors’ profession: Annual Statistical Report 2009 (Law Society, 2009) 24.

3 Law Society, ‘Key facts on the solicitors’ profession’ (Law Society, 2009). 4 For example, see the widely cited cohort study: M Shiner, Entry into the Legal Professions: The Law

Student Cohort Study, Year 4 (Law Society, 1997) and M Shiner, Entry into the Legal Professions: The Law Society Cohort Study, Year 5 (Law Society, 1999). The study’s findings about the distribution of trainees within private practice, including an analysis of the background of trainees recruited by City firms, labelled an ‘élite within an élite’, are discussed in M Shiner, ‘Young, Gifted and Blocked! Entry to the Solicitors’ Profession’ in P Thomas (ed), Discriminating Lawyers (Cavendish 2000) and were referenced in Department of Constitutional Affairs, ‘Increasing diversity in the legal profession: A report on Government proposals’ (Department of Constitutional Affairs, November 2005) 5 onwards.

Preliminary findings from Sommerlad’s ongoing longitudinal study exploring the perspective of ‘non-traditional’ entrants to the legal profession from a new university’s Legal Practice Course suggest that the profession’s ‘élite sectors’ are still largely closed to ‘outsiders’. H Sommerlad, ‘Researching and Theorizing Processes of Professional Identity Formation’ (2007) 34(2) Journal of Law and Society 190, 193 onwards, 205-206 and 217.

There is also a vast literature about diversity in large US law firms. For example, regarding the obstacles facing black recruits in large firms in the US, see D Wilkins and G Gulati, ‘Why are there so few black lawyers in corporate law firms? An institutional analysis’ (1996) 84 California Law Review 496.

5 For example, M Thornton, Dissonance and Distrust: Women in the Legal Profession (OUP, 1996), H Sommerlad ‘Can women lawyer differently? A perspective from the UK’ in U Schultz and G Shaw (eds) Women in the World’s Legal Professions (Hart Publishing, 2003). The data as regards women entering the profession is reviewed in J P Braithwaite, ‘The strategic use of demand-side diversity pressure in the solicitors’ profession’ (2010) 37(3) Journal of Law and Society 442, 444.


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broadening to take account of the lived experiences of different groups within the

profession6 and the role of large law firms in the context of declining social mobility

in the UK7 and to consider if symptoms suffered by particular groups are signs of

universal problems within the professional project.8 Because it is now self-evident

that change in the ranks of the profession is not inevitable over time, a number of

scholars are also exploring the possibilities for positive action (so far only in the

judicial context9) and the structural factors operating to reproduce disadvantage within

organisations like law firms.10

This juxtaposition- a long-term trend of remarkable growth in firm size, turnover and

geographical spread versus slow (or non-existent) change within firms in terms of the

experiences of non-traditional lawyers- makes it unsurprising that in recent years a

flurry of formal and informal initiatives about equality, diversity and the professions

have targetted the large law firm sector. These campaigns have emanated from a

range of different parties, from the Government to corporate clients and the legal

media, and have reflected a particular theory about ‘equality management’.11

1.1 The diversity approach and the campaigns in the large law firm sector

It is well-documented in the literature that since the late 1980s and 1990s, heavily

influenced by trends in North America,12 there has been a retreat from an ‘equal

opportunities’ approach to managing equality in the workplace, which emphasised

‘sameness’, towards what has been called the ‘diversity approach’. 13 Squires

describes this as a move towards a ‘wider equalities framework’ in which the separate

6 For example, see Sommerlad (n 4). 7 The Sutton Trust published research in 2005 on the educational backgrounds of the ‘UK’s top

solicitors, barristers and judges’, looking at partners in three large law firms in the so-called ‘Magic Circle’: Allen & Overy; Slaughter and May; and Clifford Chance. Sutton Trust, ‘Sutton Trust Briefing Note: The educational backgrounds of the UK’s top solicitors, barristers and judges’ (June 2005) 4, footnote ii.

8 L Webley and L Duff, ‘Women solicitors as a barometer for problems within the legal profession- Time to put values before profits?’ (2007) 34(3) Journal of Law and Society 374.

9 K Malleson, ‘Diversity in the judiciary: The Case for Positive Action’ (2009) 36(3) Journal of Law and Society, 376.

10 S Sturm, ‘Second Generation Employment Discrimination: A Structural Approach’ (2001) 101 Columbia Law Review 564.

11 G Kirton and A Greene, The Dynamics of Managing Diversity: A Critical Approach (2nd ed. Elsevier Butterworth-Heinemann, 2005) 2.

12 For example, as set out in R R Thomas, ‘From Affirmative Action to Affirming Diversity’ (1990) 68(2) Harvard Business Review 107.

13 Kirton and Greene (n 11) 2.


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strands of equality have been ‘replaced by a more integrated concern with

‘diversity’’. 14 This development can be understood as part of a wider political trend

whereby ‘bureaucratic control and constraint’ fell from favour in the face of the ‘more

vigorous application of market principles’.15

Though its definition remain controversial16 three characteristics of the diversity

approach are consistently referenced in the literature, being its focus on the potential

of every individual, promise of business benefits and transformative potential. As I

discuss below, each of these feature prominently in the recent campaigns which have

targetted large law firms, though not always in a straightforward way.

Focus on the individual

A defining characteristic of the diversity approach is that it involves ‘sameness’ being

downplayed in favour of valuing ‘difference’17 with the objective of helping every

individual thrive within an organisation. Barmes and Ashtiany write that the focus of

(what they call) the diversity perspective is to investigate ‘what arrangements are

needed to maximize the capacity of each to realize their potential’.18 A practical

manifestation of this shift in approach came with the establishment of a single

equalities commission in the UK in place of several representing particular ‘strands’

of equality19; as Squires points out, this reform reflects a commitment at a state-level

to ‘a generic equalities or ‘diversity’ approach’.20

As regards individual organisations, this aspect of the diversity approach suggests that

the organisation as a whole should become involved in trying to bring about change,

rather than particular departments having responsibility for ‘equal opportunities’. 14 J Squires, The New Politics of Gender Equality (London: Palgrave MacMillan, 2007) 16. 15 J Webb, ‘The Politics of Equal Opportunity’ (1997) 4(3) Gender, Work and Organisation 159, 161-2. 16 Indeed, Dickens concludes that ‘this is an area where the use of particular terms can be problematic

and not necessarily illuminating as to practice’. L Dickens, ‘Walking the Talk? Equality and Diversity in Employment’ in S Bach (ed) Managing Human Resources: Personnel Management in Transition (Blackwell, 2005) 203.

17 S Liff and J Wajcman, ‘‘Sameness’ and ‘Difference’ revisited: Which way forward for equal opportunity initiatives?’ (1996) 33(1) Journal of Management Studies 79

18 L Barmes and S Ashtiany, Diversity in the City: Initiatives in Investment Banks in the U.K. (Nabarro Nathanson, 2003) 4

19 The Equalities and Human Rights Commission has replaced the Equal Opportunities Commission which had responsibility for gender relations, the Commission for Racial Equality and Disability Rights Commission.

20 J Squires, The Challenge of Diversity: The evolution of women’s policy agencies in Britain (2007) 3(4) Politics & Gender 513.


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Indeed, Kandola and Fullerton’s influential 1994 account21 differentiates between the

diversity approach and equal opportunities on the basis (inter alia) that the latter is

narrowly focused on avoiding discrimination and principally the concern of the

personnel and human resources departments.22

In practice, various campaigns in the large law firm sector have shown signs of this

thinking, including the Law Society’s Diversity and Inclusion Charter and Protocol on

the Procurement of Legal Services which were launched in mid-2009.23 The Charter

itself, which is the text which law firms are invited to sign up to, does not refer to any

particular groups but rather states that signatories agree that ‘a commitment to

diversity and inclusion is essential to reflect the society we serve today’.24 Moreover,

one of the case studies of ‘good practice’ offered in conjunction with the Charter

discusses how a large law firm generates ‘imagination and resourcefulness’ ‘by

drawing on the broadest possible pool of knowledge, skills, perspectives and talent’.25

Similarly, in a 2005 report called ‘Increasing diversity in the legal profession’

(hereafter, the ‘2005 report’) the then Government argued that ‘in order to create a

more diverse profession, talent must be drawn from all quarters of our society’. 26

However, many high profile campaigns in this context do focus on the position of a

particular group or groups within the workforce. For example, The Black Solicitors’

Network (‘BSN’)’s 2009 Diversity League Table presented data voluntarily disclosed

by 50 large law firms27 about the proportions of ethnic minority, women, disabled and

‘LGB’ staff (though returns with respect to the last two categories were so few that

they were not included in the BSN’s overall ranking).28 This survey found that just

21 R Kandola and J Fullerton, Diversity in Action: Managing the Mosaic (2nd ed: Chartered Institute of

Personnel Development, 1998) 8. This work is referenced, for example, by Kirton and Greene (n 11) 123 and Barmes and Ashtiany (n 18) 4.

22 Ibid, 167. 23 Law Society, ‘Law Society’s Diversity and Inclusion Charter’ (2009) and Law Society, ‘Protocol on

the Procurement of Legal Services’ (2009). All documents in relation to the Charter and Protocol are available at <http://www.lawsociety.org.uk/productsandservices/inclusioncharter.page> All websites last accessed 10 September 2010.

24 Law Society Diversity and Inclusion Charter Statement. Law Society (n 23) 25 Law Society Diversity and Inclusion Charter: Case Studies: Linklaters. Law Society (n 23) 26 Department of Constitutional Affairs (n 4) 4. This was a response to the May 2005 recommendations

of the Legal Services Consultative Panel which was, in turn, set up by the Access to Justice Act 1999. 27 The BSN states that it approached all of the top 150 UK law firms and top 30 leading international

firms with UK bases as defined by the Lawyer’s 2008 rankings. Black Solicitors’ Network, Diversity League Table 2009 (Black Solicitors’ Network, 2009) 14.

28 Ibid, 15.


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over 4% of all partners in the sample were from ethnic minority groups, though the

representation of black partners was particularly low (just over 0.5%).29 Other groups

have sought to reward firms’ progress with respect to the position of particular groups

in their workforce (or more accurately, reward the progress of those firms that apply

for recognition), including charities such as Stonewall.30

The trend of asking large law firms to disclose group-based data about their

workforces has been marked for some years and, if anything, shows signs of

becoming more popular as time goes by. Official adoption of this tactic began with

the 2005 report, immediately after which the Department of Constitutional Affairs (as

it then was) sent letters to the top 100 law firms and 30 chambers asking them to

disclose workforce data broken down by gender, ethnicity, disability and flexi-

working.31 Similarly, the Law Society explains that Charter and Protocol ‘covers all

aspects of diversity (ethnicity; gender; disability; age; religion or belief; sexual

orientation)’32 and its related Monitoring and Reporting Protocol suggests that firms

collect data on the same six aspects of identity.33 Moreover, recent reports suggest

that the Legal Services Board (which oversees the legal profession’s regulators

including the Solicitors Regulation Authority) is considering requiring law firms and

chambers to publish diversity information about their staff.34

While there are some signs that the categories involved in these exercises may be

open to negotiation- for example the Law Society suggests that that data on social

background may be included in its list in the future35 - it is unclear how exactly those

asking for it intend to use group-based data to hold law firms to account. There are no

signs, for instance, that it will lead to express targets being imposed on law firms.

However, if this data is to be used to critique firms’ performance or even ‘inform

29 Ibid, 37. 30 A lesbian, gay and bisexual charity which run an annual workplace equality index as well as a

diversity champions’ scheme. http://www.stonewall.org.uk/ 31 Department of Constitutional Affairs (n 4) 9-11. 32 Frequently Asked Questions about the Law Society Diversity and Inclusion Charter. The Law

Society (n 23). 33 Law Society Monitoring and Reporting template. The Law Society (n 23). 34 N Rose, ‘Law firms may be forced to publish diversity figures’ (7 September 2010) The Guardian,

discussing reports that the Legal Service Board is considering requiring firms to publish their diversity data.

35 Frequently Asked Questions about the Law Society Diversity and Inclusion Charter. The Law Society (n 23).


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policy making’36 it would imply that criteria of some kind are being used to underpin

the discussion, though campaigners have been reluctant to clarify what they might be

or how this relates to the ‘generic equalities’ agenda.

On the face of things, therefore, there are two strands within these ‘diversity’

campaigns which are difficult to reconcile, namely the pressure to maximise the

potential of every individual (which is consistent with the theory underlying the

diversity approach) and the pressure to address the progress (or lack of it) of particular

groups in the workforce. This matters because it has been argued that such dissonance

may undermine the benefits of the diversity approach, as a preoccupation with the

progress of particular groups can narrow the focus of diversity policies and destroy

the potential for broader transformation within an organisation. For instance, in the

judicial context, Rackley has criticised those (including the Department of

Constitutional Affairs) who focus on what she calls ‘an evening up of the numbers on

the bench to ensure a kind of numerical aestheticism’. 37 Defining diversity by

reference to numbers therefore risks tokenism and, ultimately leaving the status quo

intact.

Others have sought to reconcile the focus on particular groups with the diversity

approach. In particular, it has been argued that the individualistic focus of the

diversity approach needs to be qualified by reference to group identity, because it is

misleading to proceed on the basis that all groups may be celebrated equally,38 risks

distracting from the realities of unfairness39 and because of the broader ‘legislative

context’ which is framed by reference to protected groups.40 Nonetheless, to the

extent that law firms (and specifically diversity staff) do seek to be accountable on

‘diversity’ matters, this tension clearly has the potential to present a considerable

challenge, blur policy objectives and may even thwart progress.

36 Rose (n 34). 37 E Rackley, ‘Judicial diversity, the woman judge and fairy tale endings’ (2007) 27(1) Legal Studies

74, 94. 38 D Cooper, Challenging Diversity: Rethinking Equality and the Value of Difference (Cambridge

University Press, 2004) 40. 39 For a discussion of the concern of some feminist scholars about the consequence of the shift to

diversity approach, see Squires (n 20). 40 Nabarro, The perils of UK anti-discrimination law: Nabarro Review of law and practice on diversity

(Nabarro, 2007) 2.


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The business case

Perhaps the most notorious aspect of the diversity approach is that it seeks to bring

about change within organisations on the basis of the ‘pull’ of business benefits rather

than the threat of sanctions for non-compliance- or as Dickens puts it, on the basis of

the carrot and not the stick.41 With respect to the business case, Kandola and Fullerton

promise that:

..harnessing these differences will create a productive environment in which everyone feels valued, where their talents are being fully utilized and in which organizational goals are met42

Some campaigners are so confident about the business benefits flowing from diversity

– spelt out in detail by groups like Business in the Community43- that they have

argued that the recent global financial crisis is an opportunity to advance diversity.

For example, Opportunity Now reckons that ‘boardroom diversity may well be

strengthened during the credit crunch as new innovative ways of working are

investigated’.44

The business case has been extremely influential in the debate about diversity in the

law firm sector. The Law Society has long embraced it, as evidenced in its Handbook

as well as the recent Charter and Protocol.45 So has the Government; for example, in a

2008 speech where the (then) Secretary of State for Justice addressed the diversity-

related business advantages for those large law firms trying to win international

work. 46 Moreover, as I have discussed in detail elsewhere, certain clients are

explicitly linking a law firm’s capacity to win work with its performance (as defined

41 L Dickens, ‘The Business Case for Women’s Equality. Is the carrot better than the stick?’ (1994)

16(8) Employee Relations 5. 42 Kandola and Fullerton (n 21) 8. 43 A membership organisation for businesses ‘committed to improving their impact on society’.

http://www.bitc.org.uk/about_bitc/index.html For an example of the application of the business case, see Business in the Community, Responsibility in a Recession: Checklist for restructuring and downsizing (January 2009) 2, which states that ‘The business benefits of responsibility are well articulated in terms of increased market share, loyalty, customer attraction and retention, employee engagement and productivity’. Available at http://www.bitc.org.uk/resources/publications/downsizing_legacy.html

44 Opportunity Now, Diversity in the Downturn (undated). Available at http://www.opportunitynow.org.uk/best_practice/diversity_in_the_downturn/

45 The Law Society, Delivering Equality and Diversity: A Handbook for Solicitors (The Law Society, 2004) and the Law Society (n 23).

46 The Rt Hon Jack Straw MP, Lord Chancellor and Secretary of State for Justice, ‘Launch of Law Society ‘Markets, Justice and Legal Ethics’ campaign’ (Speech given on 6 March 2008) <http://www.justice.gov.uk/news/sp060308.htm>


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by the client) in terms of diversity, all of which is troubling in terms of the long-

standing academic criticism of campaigns based around the promise of profit.47

For the purposes of the discussion below, it is relevant to note that campaigns in the

law firm sector have been and continue to be framed overwhelmingly in business

terms and as such, rely on voluntary action and lack mechanisms of strict enforcement.

The one exception currently is the requirement in the Solicitors’ Code of Conduct that

firms ‘adopt and implement an appropriate policy for preventing discrimination and

harassment and promoting equality and diversity within your firm’ 48 which is

explicitly linked ‘the size and nature of your firm’. 49 Breach of this rule incurs

professional sanctions, but the demands which it places on firms are limited.

Transformative potential

The final feature of the diversity approach which is consistently referenced in the

literature is its potential to transform organisations by challenging the status quo.

Aiming to change ‘organisational structures.. to better accommodate all’50 is an

attractive and optimistic-sounding goal, which campaigners can neatly link with the

business case, discussed above. For example, in an article about diversity and the

financial crisis, Opportunity Now promises that ‘the prize for employers who are

willing to tackle and change the status quo could be huge’.51

This aspect of the diversity approach is also evident across the campaigns targeting

the large law firm sector. The foreword to the Government’s 2005 report, written by

Bridget Prentice MP, stated that the legal profession would not be ‘the high quality

profession we want it to be unless we increase the diversity of that profession.’52

More recently, the Law Society has promised that:

47 Braithwaite (n 5). As discussed therein, McGlynn has offered a particularly powerful critique of the

business case in the law firm context suggesting that the business case is empirically fragile and could be used to justify inactivity or worse: C McGlynn, ‘Strategies for Reforming the English Solicitors' Profession: An Analysis of the Business Case for Sex Equality’ in U Schultz and G Shaw (eds), Women in the World's Legal Professions (Hart Publishing, 2003).

48 Solicitors Regulation Authority, Solicitors’ Code of Conduct 2007 Rule 6.03 (Equality and diversity policy).

49 Solicitors Regulation Authority, Solicitors’ Code of Conduct 2007 Guidance to Rule 6, paragraph 22(c)(i).

50 Dickens (n 16) 201. 51 Opportunity Now (n 44) 52 Department of Constitutional Affairs (n 4) 4.


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A diverse and inclusive legal profession benefits everyone with opportunities to develop and recruit the best talent and better understand and meet the needs of its clients. Collaborative action provides opportunity to identify, address and resolve common problems, develop and disseminate best practice and improve individual and collective performance and benchmarking.53

The transformative potential of diversity approach has also proven compelling for

academic observers. Notably, Guinier and Torres have developed their theory of

political participation on this basis.54 Rackley has discussed this potential in the

context of the judiciary, arguing that:

diversity requires the usual to be transformed by the remarkable, and the extraordinary to become the norm. It is as much about looking at that which difference itself is different to- the everyday or the mundane- as it is about looking for difference itself.55

However, scholars have been more willing than campaigners to follow through the

arguments about the transformative potential of diversity and address the negative

implications for the status quo. Malleson has explored these tensions in the context of

the judiciary, where there is an added constitutional dimension to arguments that

diversity has the capacity to transform the institution.56 In the context of the legal

profession, scholars have long pointed to the need for radical change within law firms,

including Webley and Duff who have argued that women lawyers may act as a

‘barometer’, or ‘more accessible indicators of problems’ within the professional

project.57 This suggests that while the ‘transformative potential’ of diversity may

seem relatively uncontroversial in theory, it may not prove so when applied in a

particular setting such as a law firm. As seen, it is one thing to argue that the diversity

approach may transform an organisation by unlocking a variety of benefits; it is

another to follow this logic through more fully and argue that the perspective of

marginalised groups might help to shine a light on deep-seated problems with the

status quo.

53 Frequently Asked Questions about the Law Society Diversity and Inclusion Charter. The Law

Society (n 23). 54 L Guinier and G Torres, The Miner's Canary: Enlisting race, resisting power, transforming

democracy (Harvard University Press, 2002). 55 Rackley (n 37) 94. 56 K Malleson, ‘Justifying Gender Equality on the Bench: Why Difference Won't Do’ (2003) 11(1)

Feminist Legal Studies 1. 57 Webley and Duff (n 8) 382 and footnote 6, referencing S Sturm, ‘From Gladiators to Problem-

Solvers: Connecting Conversations about Women, the Academy and the Legal Profession’ (1997) 4 Duke Journal of Gender, Law & Policy 119.


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1.2 External campaigns as a driver of change?

Scholars concerned with diversity and the legal profession have generally been

pessimistic about the capacity of high profile campaigns such as those discussed

above to drive meaningful change. For the most part, these objections have focussed

on the capacity of arguments framed around the business case to trigger meaningful

change on a voluntary basis. However, as discussed, it is also possible to argue that

the campaigns lack clarity as regard their objectives and have failed to address the full

implications of rhetoric about the transforming the status quo.

As diversity-orientated campaigns have now been targeting the large law firm sector

for some years it is appropriate that the academic debate moves on to consider the

impact that they are having in practice. As part of the process of developing the

debate in this way, it is important that we consider how firms are actually responding

to these pressures. Accordingly, in the rest of this paper I focus on exploring the

processes whereby diversity policies are being debated and implemented within large

law firms.

The research project which is discussed below was set up as a qualitative study of

large law firms’ engagement with the ‘diversity approach’ and addressed, amongst

other issues, which external drivers had proved persuasive in practice, their

interaction with the internal hierarchies within firms and how diversity policies in the

large law firm sector were made. A discussion of the research methodology, which

was interview-based, and of the sample is appended to the paper. In this paper, I focus

in on those findings about the impact of the external campaigns regarding law firm

diversity. In doing so, I paying particular attention to the perspective of the diversity

staff within firms who have day-to-day responsibility for issues pertaining to diversity.

This is for a number of reasons. First, the perspective of diversity staff merits greater

attention than it has received to date, as most academic work in the area has focused

on the perspective of marginalised groups within the legal profession and is generally

lawyer-centric. Secondly, deepening our understanding of the work of diversity staff

shows how the campaigns targetted at the large law firm sector affect negotiations

within firms about implementing particular initiatives. Thirdly, this perspective


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affords some useful insights into how strategies for change in the profession might be

refined in the future.

2. Diversity staff and diversity policy-making: Challenges and strategies within

the law firm hierarchy

Launching the Law Society’s ‘Markets, Justice and Legal Ethics’ campaign in 2008,

the (then) Secretary of State drew attention to various positive developments in the

law firm sector:

Some individual law firms are beginning to publish their diversity policies and data on the internet; and many of the larger firms are employing staff to consider the diversity issues within their firms.58

While these may be developments which are suggestive of progress, my research

found that the picture within firms was considerably more complex. In fact,

developments such as the appointment of diversity staff were found to co-incide with

the internalisation rather than the resolution of the debate about how, or indeed if, the

diversity approach should affect firms. The process of diversity policy-making was

found to comprise a series of negotiations with decision-makers, many of whom were

concerned about disruption to the status quo or sceptical even about the business

benefits of the diversity approach. Diversity staff played a central role in these

negotiations, meaning that their status and bargaining power within the law firm

hierarchy had an impact on the policies which come to be implemented.

In this part of the paper, I consider these findings in more detail. By way of

background, I first explain the role of diversity staff and where they fit into the law

firm structure, and the patterns of policies across firms at the time of the research. The

discussion goes on to address the research findings about the challenges involved in

the implementation of policies by firms. In the subsequent part of the paper, I consider

the implications of these findings with respect to the impact of external campaigns

targeting this sector and the effectiveness of changes in law firms to date.

58 Straw (n 46).


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2.1 Diversity staff and the law firm hierarchy

At the time of conducting this research, three large law firms in the sample had

appointed a member of staff called a ‘diversity manager’ or similar in their London

offices, while in a majority of firms in the sample, the day to day management of

diversity and diversity policies within the firm had been assigned to one or two

members of the human resources (‘HR’) team as part of a portfolio of other

responsibilities. I refer to these employees collectively as ‘diversity staff’ and, so

defined, all the large law firms in my research sample bar two59 employed diversity

staff.

These diversity staff were not legally qualified and all had a human resources (‘HR’)

background. Some were appointed in-house and some laterally, i.e. from outside the

firm, for example from other professional services firms in the City. In the latter

group, at least three research participants had considerable experience of diversity

management in previous jobs; this was not the case for people recruited internally as

diversity jobs were being newly created by law firms. This opened up some

differences in perspective between the two groups, with laterally hired diversity staff

able to bring an outsider’s perspective to their law firm roles. For example, laterally

hired diversity staff interviewees suggested that the legal sector was lagging behind

the others they had worked in, in terms of implementing the diversity approach. One

commented that the legal sector was ‘coming to diversity late’ which meant that ‘we

can take the experience and then move it on’. They also regarded themselves as being

in a good position to apply their previous experience; one put it bluntly, saying ‘I

guess I have the advantage of having done diversity the first time it came round’. Part

of this confidence also came from maintaining contacts in other sectors. One such

interviewee describing themselves as ‘well-connected’ in the ‘diversity world’. The

research found that such links were regarded as valuable by diversity staff who used

them as a source of advice and suggestions. In this respect, the research confirms

59 One of which was a global (meaning here non-UK head-quartered) law firm, where diversity in its

London office was the responsibility of a partner. In this case, the London office was small compared to the London offices of the other firms in the sample. The second firm was UK-headquartered. Here, a partner had sole responsibility for diversity in the firm. However, at the time of the research, the partner concerned was charged with exploring and ultimately recommending how diversity should be managed in the future.


15

certain findings by academics who have studied the experiences of officers working in

equality and diversity in other contexts.60

Diversity staff are therefore part of the ‘non-lawyer’ corps in large law firms, the

growth which has been noted, amongst others, by Galanter and Henderson in their

‘updated account of the modern large law firm’.61 What is the significance of diversity

staff being non-lawyers? Parker has drawn out some of the differences between how

non-lawyers and lawyers work in the context of studying the growth of ‘compliance

professionalism’ in the wake of business deregulation.62 She has linked the relative

effectiveness of non-lawyer compliance professionals to factors including their

deploying business case arguments, close understanding of the businesses in which

they work and successfully facilitating others to ‘do compliance’.63 Much as this

echoed some of the tactics used by diversity staff in law firms, working in a law firm

context was also found to present particular challenges for non-lawyers. Indeed,

participants in this research who had worked in companies before brought their

comparative perspective to bear on this issue, with one finding that:

it’s far easier to work in a corporate organisation than a partnership. It makes a huge difference, because in the corporate you’ve got, first of all, somebody who is paid to make decisions. They have people who are paid to make things happen, and you have a board who is remunerated or not, but who gives direction to the firm and you’ve got shareholders who, if they don’t like what’s happening will pull their money and walk away. Here, you don’t really have any of that.

Large law firms are unusually stratified organisations. Lee has described how internal

hierarchies are ‘clear and marked’, describing the divisions between different grades

60 For example, D Meyerson and M Scully, ‘Tempered radicalism: Changing the workplace from

within’ in R Ely, E Foldy and M Scully (eds), Reader in Gender, Work and Organisation (Blackwell, 2003) 271 and C Parker, ‘How to win hearts and minds: Corporate compliance policies for sexual harassment’ (1999) 21(1) Law & Policy 21, 37-38 citing V Braithwaite, ‘First Steps: Business reactions to implementing the Affirmative Action Act. Report to the Affirmative Action Agency’ (Australian National Agency, 1992).

61 M Galanter and W Henderson, ‘The Elastic Tournament: A Second Transformation of the Big Law Firm’ (2008) 60 Stanford Law Review 1867, 1876. It is notable that, overall, non-lawyers are now almost as numerous in some large law firms as lawyers; for example, as at November 2009 there were 996 support staff in Allen & Overy’s London office, compared to 1079 partners, associates and other fee-earners. Allen & Overy, ‘UK London office diversity metrics’ (30 November 2009) <http://www.allenovery.com/AOWeb/binaries/51175.PDF>

62 C Parker, ‘Lawyer deregulation via business deregulation: Compliance professionalism vs. Lawyer professionalism’ (1999) 6(2) International Journal of the Legal Profession 175.

63 Ibid, 184 onwards.


16

of lawyer ‘obvious and inevitable’.64 As the interviewee above implies, and as has

been well-documented, both ‘producing and managerial roles’65 in law firms are

concentrated in a partnership made up of lawyers66 which is a very different

arrangement to the corporate organisational structure. This concentration of

responsibilities, including decision-making powers, in the partnership has important

implications for non-lawyers like diversity staff. For example, as Mayson has

observed, non-lawyer staff may find working in a law firm ‘infuriating and

frustrating’ because their kind of expertise is not properly valued.67 However, to the

extent that participants in this research expressed these sorts of feelings, it was not

explicitly based on their expertise being disregarded but on the more general

challenges of bringing about change within law firms. As one research participant put

it, in terms which were typical of views across several diversity staff interviewees:

Lawyers are trained to be lawyers rather than trained to be managers… I think their training is such that you get trained to think in a particular way and so getting them to buy into something is quite challenging.

Diversity staff were therefore found to be acutely aware of the professional challenges

they came across in the law firm context, but they were also in a position to be

strategic and resourceful in response as I discuss later in the paper.

2.2 Diversity policies across large law firms

After a series of diversity-related ‘firsts’ in the mid-2000s (including, in mid-2006,

Herbert Smith becoming the first law firm to appoint a full-time diversity manager,

and Freshfields becoming the first law firm to publish an account of its corporate

64 R Lee, ‘Up or Out- Means or Ends? Staff retention in large firms’ in P Thomas (ed), Discriminating

Lawyers (Cavendish, 2000) 190. The implications of the law firm hierarchy for lawyers aspiring to be partners have been famously described in M Galanter and T Palay, ‘Why the big get bigger: The promotion-to-partner tournament and the growth of large law firms’ (1990) 76 Virginia Law Review 747, which thesis has been developed in Wilkins and Gulati (n 4).

65 J Gabarro, ‘Prologue’ in L Empson (ed), Managing The Modern Law Firm (Oxford University Press, 2007) xxi.

66 However, note that the Legal Services Act 2007 paragraphs 81 and 82 of Schedule 16 make it possible for non-lawyers to be partners in law firms (Legal Disciplinary Practices) and Part 5 of the Act allows for law firms to be owned by non-lawyers (Alternative Business Structures), subject to various conditions being met before these arrangements are permitted in practice. LDPs have been permitted since March 2009 while the SRA suggests that ABSs will be permitted from the ‘latter half of 2011’ (Solicitors Regulation Authority, ‘Legal Services Act FAQs’ <http://www.sra.org.uk/sra/legal-services-act/lsa-questions-faqs.page>). However at the time of conducting the research, non-lawyers were not permitted to be partners.

67 S Mayson, Making Sense of Law Firms: Strategy, Structure and Ownership (Blackstone Press, 1997) 361.


17

social responsibility activities, including its diversity statistics68) certain diversity

policies have become much more widespread across the sector.

The research69 found that as well as the appointment of diversity staff, certain

outward-facing diversity initiatives have been widely embraced across the large law

sector. These include the publication on firms’ websites of certain diversity statistics

(though with the caveats as to the usefulness of this data, as discussed below) and of

diversity statements. At the time of conducing the research (as at January 2008) all

bar one of the top fifteen firms considered in the study displayed diversity statements

(though the terminology varied) and all bar three of the same displayed diversity

statistics relating to their workforces. As at August 2010, all bar two provide diversity

statistics and all have a statement about diversity on their websites. This information

is usually accompanied on firms’ websites by a list of organisational affiliations- for

example membership of Stonewall’s Diversity Champions scheme- and diversity-

related awards. At the time of the research, just over half of the law firms in the

sample also had Diversity Committees which were either partner-only sub-

committees of the main board of the firm (which in turn consulted with working

groups) or a mixture of partners, associates, diversity staff and sometimes also

representatives of the non-lawyer workforce. The role of the Diversity Committee

varied from firm to firm but across the sample, they had responsibility for liaising

with the main board of the firm, drafting diversity statements, overseeing data

collection exercises and, as discussed below, working with diversity staff on tasks

such as consulting within firms about which issues should be prioritised.

Large law firms had typically been taking steps for some time to ensure that the

profile of their firms was raised with a broader range of potential graduate applicants

from non-traditional backgrounds. For example, firms’ graduate recruiters were

reported to be travelling to many more universities on ‘milk round’ recruitment events

than they had done in the past. Many firms also supported organisations working with

students to increase awareness about legal careers, such as the Sutton Trust’s

68 A Spence, ‘Become less straight, white and male- or go out of business’ (4 May 2007) The Times.

Available at http://business.timesonline.co.uk/tol/business/law/article1743732.ece 69 As noted in the methodology appendix, the research maintained the anonymity of interviewees and

firms.


18

Pathways to Law project, and some invited school children into firms for careers days,

mentoring and talks.70

In relation to the workforce within firms, the principal problem which diversity

initiatives were concerned with was the retention of women lawyers. The most

common diversity policies in place as regards the firms’ workforce were therefore

aimed at addressing the ‘leaking pipeline’ of women. As Linklaters (one of the two

firms providing case studies as part of the Law Society’s Diversity Charter and

Protocol) states it on its diversity and inclusion website, ‘a particular challenge is

stemming the loss of potential female partnership candidates too early in their

careers’.71 One response to this problem was in the form of employee networks for

women within firms. These were found to be becoming more widespread at the time

of the research, though they had not been set up in every firm. As at August 2010, six

of the top fifteen law firms state on their websites that they have networks for women

in place (a further firm had a working group for women to advise its Diversity

Committee) with four firms from these top fifteen having networks for parents.

At the time of conducting the research, in nearly half the firms in the sample,

coaching and mentoring were available for staff who were parents or who were

returning to work after a career break and some firms offered other support in the

form of childcare vouchers or emergency childcare cover. In the majority of firms

efforts were being made to make part-time and flexible working more feasible for fee-

earners, such as by formalising the relevant policies, offering a variety of options

including working from home and job shares and, in at least one case, setting up a

working party to review the implications for transactional lawyers. However, the

interviews confirmed with wealth of scholarly data about how challenging part-time

or flexi-work is on a day to day basis, and in terms of maintaining career momentum

in a large law firm context.72 Interestingly the rate of uptake of part-time and/or

70 The Sutton Trust’s research helped to drive the setting up of the Pathways to Law project, which is

now supported financially and otherwise by a number of large law firms. Pathways to Law, Legal Profession Partners <http://www.pathwaystolaw.org/#/partners/4532690790>

71 Linklaters, ‘Diversity and Inclusion: Valuing difference’ webpage, available at http://www.linklaters.com/responsibility/people/Pages/Diversity.aspx

72 Sommerlad and Sanderson have described how in the U.K. there is a “dominant model of [legal] professionalism which continues to be characterized by excessively long hours, generating an ‘ideal worker’ who is not only free of caring responsibilities but will have domestic support”. H Sommerlad and P Sanderson, ‘Professionalism, discrimination, difference and choice in women’s


19

flexible working is sometimes included in firms’ diversity statistics and where it is, it

shows that it remains very rare across the ranks of lawyers within large firms.73

The presence of other sorts of employee networks was found to be more patchy at the

time of the research but in certain respects has increased in the intervening period.

Ethnic minority and LGBT (lesbian, gay, bisexual and transsexual) staff networks

were beginning to be put in place in a few large law firms at the time of the research,

but were present in only a very small minority within the sample. No employee

groups were found to have been set up as regards age, disability or the other ‘strands’

of diversity cited by the Law Society. However, since the research certain types of

networks have become more common. Eight of the top fifteen firms now state that

they have a LGBT network for staff and three do with respect to ethnic minority staff.

One firm states on its website that it has a disability and a multifaith network. Across

the sample there was also evidence that other firms were making adjustments in terms

of catering and prayer facilities to accommodate staff of different religions and

beliefs.74

Finally, a small number of firms in the sample also held special diversity events such

as diversity ‘week’ with outsider speakers for staff or social events. These were

designed to raise awareness, launch a new employee network or sometimes as joint

events with clients.

experience in law jobs’ in P Thomas (ed) Discriminating Lawyers (Cavendish Publishing, 2000) 182. Dickens has also discussed how part time work can serve to reinforce inequality in the workforce as it can be regarded differently by the organisation; ‘career enhancing if time out is taken to study, but career detracting if used for childcare’. Dickens (n 16) 202.

73 Considering the top 5 firms by size, according to the ranking used to inform this research project: Clifford Chance 1.01% of partners and 2.92% of associates in the London office work flexibly (as at 30 June 2010); Linklaters: 5% of partners, 2% of associates (includes trainees) work flexibly (UK workforce, June 2009); Freshfields: 2% partners, 4% of associates and practice support lawyers work flexibly (London office 24 April 2009); Allen & Overy 5% of patterns, 4% of associates work part time (London office, 30 November 2009); Hogan Lovells 2% partners and 17% associates on flexible and part time working contracts (UK, July 2010). Data from diversity statistics published on firms’ websites at http://www.cliffordchance.com/home.html; http://www.linklaters.com/pages/index.aspx; http://www.freshfields.com/; http://www.allenovery.com/AOWeb/Home/AllenOveryHome.aspx?prefLangID=410 and http://www.hoganlovells.com/ respectively.

74 For example, see Law Society Diversity and Inclusion Charter: Case Studies: Eversheds LLP, (n 23).


20

2.3 Challenges and strategies

.. it is different and difficult sometimes. There’s certainly a big challenge for us as HR professionals to influence and persuade. If you can do that effectively then you’re fine. But if you can’t, you’re going to struggle.

(Diversity staff interviewee, large law firm)

Diversity staff were typically found to have a range of different responsibilities within

large law firms. They had day to day responsibility for most of the diversity policies

mentioned above. They were also the ‘contact person’ for parties outside firms on

matters pertaining to workforce diversity, for example for campaign groups

conducting surveys or asking for diversity data or the Law Society when organising a

forum for to discuss diversity in the City law firms. Within firms they provided

diversity data to partners whom had been asked for such by their clients, liaised with

or sat on Diversity Committees, organised staff training and were occasional

confidantes for staff who wanted to discuss their experiences (as one interviewee put

it ‘I am the recipient of a lot of stories from other people because I am seen as

somebody who is relatively neutral’).

Diversity staff also had responsibility for instigating new diversity policies within

firms- recent examples cited by interviewees including a new employee network and

coaching for parents. This involved diversity staff researching and pitching the

proposal to firms’ decision-making bodies (typically committees made up of partners).

As one interviewee it put it, it was only ‘once those groups have got the green light,

then we tend to be able to go ahead’. However, the outcome of these presentations

was by no means a foregone conclusion. Rather the encounters with decision-making

committees were described as demanding by diversity staff and in some cases, as

inquisitorial. As the quote a the top of the paragraph suggests, in this setting it could

be difficult for diversity staff to ‘influence and persuade’.

In this context, diversity staff were often asked to prepare and defend a detailed plan

about each proposal backed up with supporting data. In the vast majority of cases this

plan was expected to be wholly or partly based on the business case. This meant that

diversity staff had to try to demonstrate the potential benefits of the proposal to the


21

firm either in financial or broader business terms.75 Often staff drew upon external

diversity campaigns which (as discussed) made various claims about the business

benefits or they made reference to outsiders who were both pressuring the firm about

diversity and offering to confer business benefits directly (e.g. clients asking for

diversity information during the pitching process).

Diversity staff reported that this ‘market-orientated’76 empiricism was a useful way of

reaching out to decision-makers. Putting proposals in business terms or in terms of

‘profitability’ was regarded as helpful because it could pre-empt one line of argument

which staff might face. As one interviewee put it:

from my point of view as a HR professional, I don’t want diversity to be seen as...‘it’s a nice thing to do’ you know... I don’t want to be put into that category. I want it to be seen as something that is really quite important to the business for its own reasons.

In this sense, using economic justifications was seen as a way of fortifying proposals

by linking them to the core business activities of the firm and, simultaneously,

distancing them from possible lines of criticism.

However, it was also reportedly difficult to put together and defend such arguments,

especially as some of the audience scrutinised them in detail. One interviewee found

the discussions of these justifications with decision-makers difficult because ‘if they

don’t like the proof, they will do what they can to deconstruct it’. As noted above, the

pitfalls of the business case for diversity have been widely noted in the literature.77

The perspective of diversity staff bears them out in practice, suggesting that using the

business case does expose those advocating change to difficult questions relating to

the fragility of their arguments. In short, those charged with responsibility for

proposing new diversity policies experienced both sides of the debate about the

business case. They come up against the shortcomings of these arguments when

constructing and debating these justifications, but still used them either because they

have been asked to, or because of the perceived advantages of engaging with

decision-makers on these own terms.

75 The different elements of the business case for diversity in the context of law firms have been

explored in detail in McGlynn (n 47). 76 Webb (n 15) 163. 77 See discussion accompanying n 47.


22

Diversity staff also facilitated these negotiations by leveraging certain of those

external pressures which were discussed above. A common tactic was to make the

most of client requests about the firms’ diversity statistics or diversity policies.

However, diversity staff also used other sorts of external pressures directly and

indirectly in their work of ‘influencing and persuading’. In particular, the research

found that diversity staff in most of the firms in the sample devoted a surprising

amount of time to external awards and ranking exercises and that they had prepared

submissions for, or were working towards entering, exercises including Stonewall’s

Workplace Equality Index78, the Black Solicitors’ Network’s Diversity League Table

(discussed above) and awards such as the Law Society’s for excellence in equality

and diversity and The Lawyer magazine’s for ‘Most effective diversity programme’.79

The proliferation of awards and rankings available in respect of diversity is just part

of a more general explosion in the number of such exercises, which, as Galanter and

Roberts have commented, keep ‘the shifting fortunes within [the commercial law

firm] hierarchy.. relentlessly in view and subject to commentary’.80 Despite the time

involved in preparing submissions, these exercises were widely regarded as

worthwhile by diversity staff. English’s analysis of the ‘simply tremendous growth of

cultural prizes’ in the arts sector is helpful here.81 Drawing on Bourdieu, he argues

that the prize may be understood as an ‘instrument of cultural exchange’ and the

award of prizes as ‘a ‘full contact marketplace’ where different parties- judges,

sponsors, entrants, winners, losers, organisers and even those attending awards

ceremonies- successfully create value for one another.82

Most obviously of course, diversity staff explained that winning prizes (or performing

well in diversity league tables and other rankings) provided the opportunity to assess

78 The first law firm to feature in this Index was Pinsent Masons which came joint 67th in 2008. Law

firms Simmons and Simmons, Herbert Smith and Eversheds were also included in 2009. Stonewall, ‘Workplace: Where people can perform better’ <http://www.stonewall.org.uk/workplace/1477.asp>

79 See details of the 2010 awards at The Lawyer, ‘2010 HR Awards’ (including ‘Most effective diversity programme’) <http://hrawards.thelawyer.com/>

80 Galanter and Roberts (n 1) 167. 81 J English, The Economy of Prestige: Prizes, awards and the circulation of cultural value (Harvard

University Press, 2005) 9-10. 82 Ibid, 11-12 citing P Bourdieu and L Wacquant (eds) An Invitation to Reflexive Sociology (University

of Chicago Press, 1992).


23

their own progress and portray their activities as successful within firms. However,

there were also benefits in losing or doing badly. Simply being motivated enough to

enter was regarded as ‘a nudge to their competitors’ while doing poorly allowed

diversity staff to argue before their firms’ decision-making bodies that more needed to

be done to keep up with competitors. This was thought to be an effective tactic for

two reasons; first, it tapped into the rivalry between firms and, secondly, it was a way

to confirm to the firm’s decision-makers that another firm had already implemented a

particular policy. Most diversity staff agreed it was hard to persuade their firms to be

the first in the sector to implement a new initiative and much easier once there was a

precedent.

Finally, diversity staff also tried to improve their position in negotiations with

decision makers by taking accounts of views which perceived the diversity agenda as

controversial or as a potential threat to the status quo. As one diversity staff

interviewee put it, aspects of their work were regarded by some within the firm as:

challenging the fundamentals of years of a successful story… at the moment it’s like ‘Everything’s working really well, and why should we change a winning formula?’

Diversity staff often encountered the view that the status quo was not just successful

but also a ‘meritocracy’. A common response was to acknowledge the notion of merit

as a constant, within which parameters they wanted to bring about change, i.e. as one

interviewee put it, ‘merit doesn’t have to be white and male and privately educated’.

Such logic has precedent. For example, the foreword to the Government’s 2005 report

reassures readers that ‘merit must remain paramount’.83 Nonetheless, diversity staff

still faced challenging discussions on this perceived tension between diversity and

merit. One interviewee referred to ‘a lot’ of discussions within their firm about the

fact that ‘diversity does not have to equal a dilution of skills’. In one firm, the support

of the senior partner helped to overcome these sorts of counter-arguments, though in

this case, the senior partner was described as being ‘prepared to stick his neck out’ in

support, which conveys something of the flavour of the broader debate.

As a result, diversity staff proceeded incrementally, tending to propose policies which

were felt to be less controversial within firms and which played to those problems

83 Department of Constitutional Affairs (n 4) 4.


24

which were the most visible and widely recognised. For the most part this meant the

retention of women lawyers. One interviewee described how debates around gender

‘[are] quite long established’ with the result that they were found to prove less

controversial. Similarly, in another firm ‘the one issue which came out top [of a

discussion by partners about diversity] was retention of female lawyers.’ Another

interviewee reported that

there was very much a sort of recognition that diversity is a huge topic, covering a myriad of different areas, but for us gender was an area where we just felt that we needed to [do something] really at first

Thus, in the majority of firms, retention of women lawyers tended to be treated as the

issue at the top of the list in terms of diversity efforts. But this was not the case in all

firms; one interviewee reported that decision-makers in their firm were willing to

discuss most diversity issues apart from gender, where it was felt there were no

problems because the firm was a ‘meritocracy’.

Outside the body of (supposedly) less controversial issues within firms, it was more

challenging for diversity staff to see particular policies through. At the time of

conducting the research, several diversity staff in different firms had been made to

feel uncomfortable about internal questionnaires gathering diversity data, which some

staff had objected to (as ‘political correctness gone mad’) and were facing resistance

about initiating wider discussions about policies on sexual orientation. Another issue

that remained unresolved across the firms in the sample, in part because of the

practical challenges involved (e.g. defining key terms) and in part because of

resistance, was how to extend diversity activities to overseas offices. Some diversity

staff interviewees reported meeting extremely strong negative reactions on trying to

extend diversity questionnaires to certain overseas offices. As a result it was

unsurprising that London-based diversity staff essentially confined their work to the

UK, and that recently the Law Society acknowledged this constraint.84

In some ways, therefore, the appointment of diversity staff was found to signify the

beginning rather than end of the debate about how the diversity approach to equality

management should affect a particular firm. Due to the lack of external accountability

84 Frequently Asked Questions about the Law Society Diversity and Inclusion Charter. The Law

Society (n 23), explaining why the Charter only covers UK operations.


25

this debate plays out within the privacy of each firm and on a policy-by-policy basis.

Diversity staff typically made the case for each new policy in turn and when doing so,

they faced a series of challenges, which came back to the fact that such activities are

voluntary for law firms and that the status quo is highly resilient. In order to

‘influence and persuade’ in these circumstances, diversity staff were found to adopt a

series of strategies. They deployed business case logic (though this also makes them

vulnerable to difficult questions), leveraged external pressures and used prizes,

ranking exercises and peer pressure to make their case. They also checked their

rhetoric and their agendas to take account of concerns about merit and the status quo.

The nature of the external campaigns about diversity therefore made bringing about

change more difficult by leaving firms to pick and chose each new policy in turn.

However, external campaigns and peer pressure could also empower diversity staff,

albeit within a limited sphere of activity.

3. Implications of the research findings

The findings above have a number of implications as regards the impact of the

external campaigns about diversity in the large law firm sector and measuring the

effectiveness of the developments which are already underway within firms.

First, the research suggests that it is important to reconsider the means by which law

firms’ progress as regards diversity is measured. This is a pressing issue- indeed it has

recently been suggested that firms themselves do not know if particular policies are

working.85 Such efforts as there have been to date to measure the impact of law firms’

activities have focussed either on noting particular outward-facing policies or using

voluntarily disclosed data. This research suggests that both methods are of limited

usefulness.

As noted, discussions of law firms’ progress are often limited to acknowledging those

which have a particular policy in place (such as the appointment of diversity staff or a

statement) or have signed up to a scheme such as the Law Society’s Diversity Charter.

85 BSN (n 27) 16-17: ‘many of the firms in our survey may have little chance of finding out whether

recruitment, retention or promotion are driving any changes as many did not return this information.. unfortunately it would seem that companies (sic) with little idea of what is driving diversity in their firms already have retention, promotion and outreach schemes. In some ways this is like finding a solution before one has a handle on the specifics of any potential problems..’


26

While it is certainly possible that there will be individual beneficiaries from certain

groups within law firms as a result of the presence of such schemes, as this research

shows it can be misleading to use the such developments as signs of progress, when in

practice the debate within the organisation about the diversity approach remains

largely unresolved. This is confirmed by analyses based on large-scale surveys of

workplaces in the UK which argue that taking certain policies as signs of real progress

within an organisation can be misleading because initiatives (especially in the private

sector) can often be ‘empty shells’86 leaving a ‘gap between policy and action’87 and

result in ‘relatively little change in long-standing patterns of job segregation and pay

disadvantage’.88

Focussing on the data published voluntarily by law firms is another common way of

trying to work out if law firms are ‘improving’ as regards diversity. However, despite

the growing number of initiatives designed to flush statistics out of large law firms

there are serious difficulties with using this information for these purposes. Not only

does this disclosure remain voluntary89 as regards both participation and choice of

content but firms which do publish data use different methodologies (affecting the

definition of different ranks of staff, involvement of foreign or regional offices, dates

and frequency of data collection, the categories used to breakdown the workforce and

so on). As such, the data published is limited in important ways (e.g. the consistent

failure to breakdown the ‘ethnic minority’ category further and the absence of data

which goes to social background). Most importantly, historic data is not made

public.90 These methodological issues makes firms’ data a problematic source for

objectively testing longitudinal changes within the sector or for testing the effects of

particular policies.

86 K Hoque and M Noon, ‘Equal opportunities policy and practice in Britain: Evaluating the ‘empty

shell’ hypothesis’ (2004) 18(3) Work, employment and society 481. This analysis is based on the 1998 UK Workplace Employee Relations Survey which included a survey of managers comprises 2191 workplaces and 28,420 employees observations from workplaces within the managers’ survey. (ibid, 485).

87 Dickens (n 16) 180. 88 Ibid, 181. 89 For example, the BSN data shows that 30 more firms took part in its survey in 2007 than 2009. BSN

(n 27) 106-7. 90 With some rare exceptions; for example, Allen & Overy displays its diversity data from 2006, 2007

and 2008. Allen & Overy (n 73).


27

All this suggests that more of the same disclosures by firms will not help to address

the specific question of whether those (limited) policies which are in place in the large

law firm sector are making a difference. Rather, there is a need for the regular

collection of more rigorous, co-ordinated data about the workforce across this sector.

Indeed, the Solicitors Regulation Authority (‘SRA’, the regulatory body of the

solicitors’ profession) has recently noted that ‘one of the challenges faced by the SRA

has been the lack of sufficient data about the profession’ and it remains to be seen if

its own, ongoing ‘diversity census’ will help to address the gaps and if it does so,

whether it will be repeated periodically.91 More ambitiously, there is clearly potential

for a large- scale quantitative and qualitative cohort study along the lines of that run

some years ago by Shiner92 or that co-ordinated by NALP in the US.93 Ideally, this

would follow the experiences of a large number of lawyers joining law firms from

recruitment over ten to twelve years, which would span entrants progressing through

the ranks of the firms and in some cases through the ‘tournament’ to partnership. As

they did so, such research should be designed to capture participants’ experiences if

and when they came into contact with the initiatives discussed in this paper.

However, the findings discussed in this paper also suggest a more fundamental task

which needs to be resolved in terms of the diversity campaigns targetted at large law

firms.

As the result of change remaining voluntary and not strictly enforced, I have shown

that the debate about how the diversity approach should affect large law firms its left

to play out within individual firms. However, in this context the dilemmas which

remain unresolved within the diversity campaigns, as to the objectives and the

transformative possibilities, are either not resolved at all or are not resolved in ways

91 A Townsend, Chief Executive of the Solicitors Regulation Authority, ‘Statement of Support’ in BSN

(n 27), 22. 92 See n 4 above. 93 The National Association for Law Placement, which is a US-based ‘not for profit educational association established in 1971 to meet the needs of all participants in the legal employment process’. About NALP, available at http://www.nalp.org/whatisnalp Research commissioned by NALP includes the landmark ‘After the JD’ project which is ‘a longitudinal study of the career choices and subsequent career progression of a national sample of lawyers who were first admitted to the bar in the year 2000’. It has more than 4,500 participants who were surveyed in 2002, 2007 and will be again in 2012. For a discussion of the methodology and early findings, see G Z Wilder, ‘Women in the Profession: Findings from the first wave of the After the JD study’ (NALP, 2007) 5.


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which threaten to disrupt the status quo. As a result, policies are being rolled out but

they are incremental, tempered and cluster around certain issues which are broadly

regarded as uncontroversial, paradigmatically the ‘leaking pipeline’ of women

lawyers. Even though there is some evidence that a growing number of different

groups are taking part in employee networks and so on, the overall effect is that which

Squires discusses in a different context, namely a ‘hierarchy of rights’94 whereby the

position of marginalised groups in firms are addressed, if at all, according to which

policies are feasible at any given time. The effect is also one, of course, which runs

counter to the theory underlying the diversity approach which focuses on individuals

and on transforming the institution rather than on supporting particular groups within

it.

This all suggests that internal discussions within individual law firms are not the right

forum to resolve in a principled way those difficult questions about how diversity

approach might apply in this context. There is therefore a strong case for those

tensions which were discussed in the first part of the paper- as regards the dilemma

between group-based approach and supporting each individual, the implications for

the status quo and the overall objectives of diversity approach in this context- being

addressed not within the privacy of firms but in an open, collaborative way between

firms, their regulators, campaigners currently exerting pressure on firms and other

interested parties. Greater clarity about the goals firms should be working towards

under the banner of diversity would give diversity staff the means to address more

difficult and controversial issues within firms. It is also a pre-condition of more

effective accountability. The research considered here suggests that until these issues

are addressed in an open way rather than remaining the subject of compromise within

firms, bringing about change within large law firms will continue to be a challenging

task, with vague goals and uncertain outcomes.

4. Conclusion

The paper has located current developments as regards diversity in large law firms

within the broader debates about the diversity approach. It has argued that in order to

appreciate the nature of the changes currently underway in large law firms, greater

94 Squires (n 20) 523.


29

attention should be paid to the processes of diversity policy-making in those firms.

Exploring the dynamics within firms, and in particular taking account of the

perspective of diversity staff, shows that the many external campaigns targetted at

large law firms are having some effects, but to the extent that campaigns are limited,

conflicting or unresolved, this is also having an impact on developments. Overall, the

paper has suggested that a greater understanding of the background to those policies

which have emerged to date helps to inform the ongoing debates about holding law

firms accountable for diversity and shows a pressing need for greater clarity as to the

objectives of these efforts.


30

Appendix: Research methodology

This paper draws on research into the exogenous drivers and the internal decision-

making processes behind large law firms’ engagement with the ‘diversity approach’

to equality management.95 During the course of the research 17 semi-structured

interviews were conducted by the author with diversity staff and lawyers from 13

large law firms, diversity staff in clients of those law firms and a Minister from the

Department of Constitutional Affairs. All interviews were conducted between

February and June 2007.

The sample of large law firms was purposive rather than random.96 Interviews were

conducted in ten of the top 15 UK law firms by turnover according to The Lawyer.97

In addition, one was conducted with the former senior partner of another firm in the

top 15 list, while two were conducted with interviewees from the London offices of

large law firms which were headquartered outside the UK. Both of these firms were in

The Lawyer’s ranking of the top 25 global firms by turnover.98 In each case the

interviews were primarily concerned with matters in firms’ London offices rather than

in their offices overseas or elsewhere in the UK, if applicable. The research

acknowledged the disparities between the firms in the sample but rather than

exploring these differences, sought to pursue the research questions across what

scholars have consistently regarded as a distinct sector of the legal profession in the

UK. Collectively, this paper refers to the firms involved in the research as ‘large law

firms’.

After conducting the interviews, the data was transcribed and anonymised as to firm

(or other employer) and interviewee. Quotations in the paper without references are

extracts from these interview transcripts which are on file with the author. The data

95 Kirton and Greene (n 11) 96 i.e. chosen because they shared the features of interest to the researcher. D Silverman, Doing

Qualitative Research: A Practical Handbook (Sage Publications, 2003) 104. 97 The Lawyer, ‘The Lawyer UK 100: The top 1-25’ (2006) (on file with the author). The top 15 firms

on this list are: Clifford Chance; Linklaters; Freshfields Bruckhaus Deringer; Allen & Overy; Lovells (as it then was); DLA Piper; Eversheds; Slaughter and May; Herbert Smith; Simmons & Simmons; Ashurst; Norton Rose; CMS Cameron McKenna; Pinsent Masons; and Addleshaw Goddard.

These rankings were also used by the Department of Constitutional Affairs in order to identify the top 100 firms to write to about diversity, as discussed above. Department of Constitutional Affairs (n 4).

98 The Lawyer, ‘The Lawyer Global 100’ (2006) <http://www.thelawyer.com/global100/2006/index.html>


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was analysed using grounded theory99 which develops theories and concepts in a

flexible way as the research unfolds.100

99 B Glasner and A Strauss, The Discovery of Grounded Theory (Aldine, 1967). 100 D Layder, New Strategies in Social Research (Polity Press, 1993) 19, noting Layder’s ‘wider

definition of GT [grounded theory]’, 60

diversity staff and the dynamics of diversity policy- making in large

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